[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4038 Introduced in House (IH)]







107th CONGRESS
  2d Session
                                H. R. 4038

To establish a Securities and Derivatives Oversight Commission in order 
 to combine the functions of the Commodity Futures Trading Commission 
  and the Securities and Exchange Commission in a single independent 
             regulatory commission, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 20, 2002

 Mr. DeFazio (for himself, Mr. Filner, Ms. McKinney, Mr. Sanders, Mr. 
 Kucinich, and Mr. Lipinski) 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 establish a Securities and Derivatives Oversight Commission in order 
 to combine the functions of the Commodity Futures Trading Commission 
  and the Securities and Exchange Commission in a single independent 
             regulatory commission, 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 ``Market Oversight 
Consolidation and OTC Derivatives Regulation Act''.
    (b) Table of Contents.--

Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
Sec. 4. Effect on congressional jurisdiction.
                  TITLE I--ESTABLISHMENT OF COMMISSION

Sec. 101. Establishment.
Sec. 102. Members: appointment; terms.
Sec. 103. Organization of commission.
Sec. 104. General Counsel.
                    TITLE II--TRANSFERS OF FUNCTIONS

Sec. 201. Commodity Futures Trading Commission functions.
Sec. 202. Securities and Exchange Commission.
Sec. 203. Jurisdiction of margin authority.
       TITLE III--FEDERAL FINANCIAL MARKETS COORDINATING COUNCIL

Sec. 301. Establishment; membership.
Sec. 302. Functions of the Council.
Sec. 303. Staff; administrative support; expenses.
                  TITLE IV--ADMINISTRATIVE PROVISIONS

                      Part A--Personnel Provisions

Sec. 401. Officers and employees.
Sec. 402. Experts and consultants.
               Part B--General Administrative Provisions

Sec. 411. General authority.
Sec. 412. Delegation.
Sec. 413. Reorganization.
Sec. 414. Rules.
Sec. 415. Contracts.
Sec. 416. Regional and field offices.
Sec. 417. Use of facilities.
Sec. 418. Working capital fund.
Sec. 419. Funds transfer.
Sec. 420. Seal of Commission.
Sec. 421. Annual report.
       TITLE V--TRANSITIONAL, SAVINGS, AND CONFORMING PROVISIONS

Sec. 501. Transfer and allocation of appropriations and personnel.
Sec. 502. Effect on personnel.
Sec. 503. Agency terminations.
Sec. 504. Incidental transfers.
Sec. 505. Savings provisions.
Sec. 506. Separability.
Sec. 507. Reference.
Sec. 508. Amendments.
Sec. 509. Transition.
                TITLE VI--REGULATION OF OTC DERIVATIVES

Sec. 601. Regulation of over-the-counter derivatives.
                       TITLE VII--EFFECTIVE DATE

Sec. 701. Effective date.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to establish a single Federal regulatory body with 
        jurisdiction over securities and derivatives, including 
        options, futures, swaps, and related markets and instruments 
        and including over-the-counter derivatives;
            (2) to consolidate and revise the authority for setting 
        margin requirements on all such instruments;
            (3) to coordinate the regulation of all financial markets;
            (4) to strengthen investor confidence in United States 
        financial markets; and
            (5) to ensure the competitiveness of those markets.

SEC. 3. DEFINITIONS.

    As used in this Act--
            (1) the term ``Commission'' means the Securities and 
        Derivatives Oversight Commission established by section 101 of 
        this Act; and
            (2) the term ``function'' includes any duty, obligation, 
        power, authority, responsibility, right, privilege, activity, 
        or program.

SEC. 4. EFFECT ON CONGRESSIONAL JURISDICTION.

    It is the sense of Congress that this Act shall not be construed to 
affect the jurisdiction of any committee or subcommittee of the 
Congress with respect to any function transferred to the Commission by 
this Act.

                  TITLE I--ESTABLISHMENT OF COMMISSION

SEC. 101. ESTABLISHMENT.

    There is established an independent regulatory commission to be 
known as the Securities and Derivatives Oversight Commission.

SEC. 102. MEMBERS: APPOINTMENT; TERMS.

    (a) Composition of Commission.--The Commission shall be composed of 
five commissioners appointed by the President, by and with the advice 
and consent of the Senate. One of the commissioners shall be designated 
by the President as chairman. Not more than three of such members shall 
be members of the same political party. Each Commissioner shall be 
selected solely on the basis of integrity and demonstrated knowledge of 
the operations of the markets subject to the jurisdiction of the 
Commission.
    (b) Terms.--Each commissioner shall be appointed for a term of 5 
years, except that--
            (1) a commissioner may continue to serve after the 
        expiration of such term until a successor is appointed and has 
        qualified, but may not continue to so serve beyond the 
        expiration of the next session of Congress beginning after the 
        expiration of such term;
            (2) the terms of office of the commissioners first taking 
        office after the enactment of this Act shall expire, as 
        designated by the President at the time of their appointment--
                    (A) 1 at the end of 1 year;
                    (B) 2 at the end of 3 years; and
                    (C) 2 at the end of 5 years; and
            (3) any member appointed to fill a vacancy occurring prior 
        to the expiration of the term for which the predecessor was 
        appointed shall be appointed for the remainder of such term.
    (c) Conflicts of Interest.--
            (1) In general.--No commissioner shall engage in any other 
        business, vocation, or employment than that of serving as 
        commissioner, nor shall any commissioner participate, directly 
        or indirectly, in any market operations or transactions of a 
        character subject to regulation by the Commission pursuant to 
        this title.
            (2) Reimbursement for travel.--Notwithstanding any other 
        provision of law, in accordance with regulations which the 
        Commission shall prescribe to prevent conflicts of interest, 
        the Commission may accept payment and reimbursement, in cash or 
        in kind, from non-Federal agencies, organizations, and 
        individuals for travel, subsistence, and other necessary 
        expenses incurred by Commission members and employees in 
        attending meetings and conferences concerning the functions or 
        activities of the Commission. Any payment or reimbursement 
        accepted shall be credited to the appropriated funds of the 
        Commission. The amount of travel, subsistence, and other 
        necessary expenses for members and employees paid or reimbursed 
        under this subsection may exceed per diem amounts established 
        in official travel regulations, but the Commission may include 
        in its regulations under this subsection a limitation on such 
        amounts.
            (3) Professional fellows.--Notwithstanding any other 
        provision of law, former employers of participants in the 
        Commission's professional fellows programs may pay such 
        participants their actual expenses for relocation to 
        Washington, District of Columbia, to facilitate their 
        participation in such programs, and program participants may 
        accept such payments.
    (d) Fees.--Notwithstanding any other provision of law, whenever any 
fee is required to be paid to the Commission pursuant to any provision 
of the securities laws or any other law, the Commission may provide by 
rule that such fee shall be paid in a manner other than in cash.

SEC. 103. ORGANIZATION OF COMMISSION.

    The Commission shall establish the principal divisions and 
subdivisions of the Commission, except that the Commission shall 
establish a separate division with responsibility for functions 
relating to markets in physical commodities.

SEC. 104. GENERAL COUNSEL.

    There shall be in the Commission an Office of General Counsel, 
headed by a General Counsel appointed by the President, by and with the 
advice and consent of the Senate.

                    TITLE II--TRANSFERS OF FUNCTIONS

SEC. 201. COMMODITY FUTURES TRADING COMMISSION FUNCTIONS.

    There are transferred to the Commission all functions of the 
Commodity Futures Trading Commission and of any officer or component of 
the Commodity Futures Trading Commission.

SEC. 202. SECURITIES AND EXCHANGE COMMISSION.

    There are transferred to the Commission all functions of the 
Security and Exchange Commission and of any officer or component of the 
Securities and Exchange Commission.

SEC. 203. JURISDICTION OF MARGIN AUTHORITY.

    (a) Margin Authority With Respect to Securities.--There is 
transferred to the Commission the functions of the Board of Governors 
of the Federal Reserve System under section 7 of the Securities 
Exchange Act of 1934.
    (b) Margin Authority With Respect to Futures.--Notwithstanding 
section 5a(12) of the Commodity Exchange Act, the Commission may--
            (1) by order, direct contract markets to adjust the level 
        of margin required on any contract; or
            (2) by regulation, prescribe limits on the level of margin 
        that a contract market may require on any class or category of 
        contract;
as necessary to ensure the financial integrity of such market.

       TITLE III--FEDERAL FINANCIAL MARKETS COORDINATING COUNCIL

SEC. 301. ESTABLISHMENT; MEMBERSHIP.

    (a) Establishment.--There is established in the executive branch a 
council to be known as the Federal Financial Markets Coordinating 
Council.
    (b) Membership.--The Council shall be composed of the heads of the 
following agencies or their designees for this purpose:
            (1) The Board of Governors of the Federal Reserve System.
            (2) The Comptroller of the Currency.
            (3) The Department of the Treasury.
            (4) The Securities and Derivatives Oversight Commission.
            (5) The National Credit Union Administration.
            (6) The Office of Thrift Supervision.
            (7) The Federal Deposit Insurance Corporation.
    (c) Chairman.--The Council shall elect one of its members to serve 
as chairman.

SEC. 302. FUNCTIONS OF THE COUNCIL.

    The Federal Financial Markets Coordinating Council shall--
            (1) serve as a facility for the coordination of the 
        regulatory operations of each of the agencies represented on 
        the Council;
            (2) meet bimonthly and at the call of the chair to discuss 
        issues relating to the safety and effectiveness of the 
        financial services industry and other issues relating to those 
        regulatory operations;
            (3) establish an advisory committee of not more than 5 
        members representative of the futures, commodities, options, 
        and securities exchanges and the banking industry to meet no 
        less than 4 times annually; and
            (4) report biennially to the Congress on its functions and 
        activities, including in the first such report such 
        recommendations for legislative action as it considers 
        appropriate.

SEC. 303. STAFF; ADMINISTRATIVE SUPPORT; EXPENSES.

    (a) Staff; Administrative Support.--The Commission and each agency 
represented on the Council shall provide to the Council such personnel 
and administrative support as the Council may require to carry out its 
functions under this title.
    (b) Expenses.--There are authorized to be appropriated such sums as 
may be necessary for the expenses of the Commission in carrying out 
this title. Funds appropriated under this subsection may be available 
to reimburse agencies for personnel detailed to the Council and for 
administrative support provided under subsection (a).

                  TITLE IV--ADMINISTRATIVE PROVISIONS

                      PART A--PERSONNEL PROVISIONS

SEC. 401. OFFICERS AND EMPLOYEES.

    (a) Appointment and Compensation.--The Commission is authorized to 
appoint and fix the compensation of such officers and employees, 
including attorneys, as may be necessary to carry out the functions of 
the Commission. Except as otherwise provided by law, such officers and 
employees shall be appointed in accordance with the civil service laws 
and their compensation fixed in accordance with title 5 of the United 
States Code.
    (b) Special Provisions.--
            (1) Continuity of supergrade positions.--At the request of 
        the Commission, the Director of the Office of Personnel 
        Management shall, under section 5108 of title 5, United States 
        Code, provide for the establishment in each of the grade levels 
        GS-16, GS-17, and GS-18 of a number of positions in the 
        Commission equal to the number of positions in that grade level 
        which were used primarily for the performance of functions and 
        offices transferred under this Act and which were assigned and 
        filled on the day before the effective date of this Act.
            (2) Continuity of professional and technical positions.--At 
        the request of the Commission, the Director of the Office of 
        Personnel Management shall, under section 3104 of title 5, 
        United States Code, provide for the establishment in the 
        Commission of a number of professional and technical positions 
        outside of the General Schedule equal to the number of such 
        positions which were used primarily for the performance of 
        functions and offices transferred under this Act and which were 
        assigned and filled on the day before the effective date of 
        this Act.
            (3) Appointments to special positions.--Appointments to 
        positions provided for under this subsection may be made 
        without regard to the provisions of section 3324 of title 5 of 
        the United States Code, if the individual appointed in such 
        position is an individual who is transferred in connection with 
        the transfer of functions and offices under this Act and, on 
        the day preceding the effective date of this Act, holds a 
        position and has duties comparable to those of the position to 
        which appointed hereunder.
            (4) Termination of special authority.--The authority under 
        this subsection with respect to any position shall terminate 
        when the person first appointed to fill such position ceases to 
        hold such position.
            (5) Technical provision.--For purposes of section 
        414(a)(3)(A) of the Civil Service Reform Act of 1978, an 
        individual appointed under this subsection shall be deemed to 
        occupy the same position as the individual occupied on the day 
        preceding the effective date of this Act.
    (c) Additional Technical and Professional Positions.--The 
Commission may appoint, without regard to the provisions of title 5, 
United States Code, governing appointment in the competitive service, 
up to 100 technical or professional employees of the Commission and may 
compensate employees so appointed without regard to the provisions of 
chapter 51 and subchapter III of chapter 53 of such title relating to 
classification and General Schedule pay rates. The rate of basic 
compensation for such employees shall not be equal to or in excess of 
the minimum rate of pay currently paid for GS-16 of the General 
Schedule under section 5332 of such title.
    (d) Limited-Term Appointees.--Notwithstanding any other provision 
of law, the Director of the Office of Personnel Management shall 
establish positions within the Senior Executive Service for 10 limited-
term appointees. The Commission shall appoint individuals to such 
positions as provided by section 3394 of title 5, United States Code. 
Such positions shall expire on the later of three years after the 
effective date of this Act or three years after the initial appointment 
to each position. Positions in effect under this subsection shall be 
taken into account in applying the limitations on positions prescribed 
under section 3134(e) and section 5108 of such title.

SEC. 402. EXPERTS AND CONSULTANTS.

    The Commission may as provided in appropriation Acts obtain the 
services of experts and consultants in accordance with the provisions 
of section 3109 of title 5, United States Code, and may compensate such 
experts and consultants at rates not to exceed the daily rate 
prescribed for GS-18 of the General Schedule under section 5332 of such 
title.

               PART B--GENERAL ADMINISTRATIVE PROVISIONS

SEC. 411. GENERAL AUTHORITY.

    In carrying out any function transferred by this Act, the 
Commission, or any officer or employee of the Commission, may exercise 
any authority available by law (including appropriation Acts) with 
respect to such function to the official or agency from which such 
function is transferred, and the actions of the Commission in 
exercising such authority shall have the same force and effect as when 
exercised by such official or agency.

SEC. 412. DELEGATION.

    Exception as otherwise provided in this Act, the Commission may 
delegate any function to such officers and employees of the Commission 
as the Commission may designate, and may authorize such successive 
redelegations of such functions within the Commission as may be 
necessary or appropriate. No delegation of functions by the Commission 
under this section or under any other provision of this Act shall 
relieve the Commission of responsibility for the administration of such 
functions.

SEC. 413. REORGANIZATION.

    The Commission is authorized to allocate or reallocate functions 
among the officers of the Commission, and to establish, consolidate, 
alter, or discontinue such organizational entities within the 
Commission as may be necessary or appropriate.

SEC. 414. RULES.

    The Commission is authorized to prescribe such rules and 
regulations as the Commission determines necessary or appropriate to 
administer and manage the functions of the Commission.

SEC. 415. CONTRACTS.

    (a) In General.--Subject to the provisions of the Federal Property 
and Administrative Services Act of 1949, the Commission is authorized 
to make, enter into, and perform such contracts, grants, leases, 
cooperative agreements, or other similar transactions with Federal or 
other public agencies (including State and local governments) and 
private organizations and persons, and to make such payments, by way of 
advance or reimbursement, as the Commission may determine necessary or 
appropriate to carry out functions of the Commission.
    (b) Appropriations Required.--Notwithstanding any other provision 
of this Act, no authority to enter into contracts or to make payments 
under this title shall be effective except to such extent or in such 
amounts as are provided in advance under appropriation Acts.

SEC. 416. REGIONAL AND FIELD OFFICES.

    The Commission is authorized to establish, alter, discontinue, or 
maintain such regional or other field offices as the Commission may 
find necessary or appropriate to perform functions of the Commission.

SEC. 417. USE OF FACILITIES.

    (a) Use by Commission.--With their consent, the Commission may, 
with or without reimbursement, use the research, equipment, services, 
and facilities of any agency or instrumentality of the United States, 
of any State or political subdivision thereof, or of any foreign 
government, in carrying out any function of the Commission.
    (b) Use by Others.--The Commission is authorized to permit public 
and private agencies, corporations, associations, organizations, or 
individuals to use any real property, or any facilities, structures, or 
other improvements thereon, under the custody and control of the 
Commission for Commission purposes. The Commission shall permit the use 
of such property, facilities, structures, or improvements under such 
terms and rates and for such period as may be in the public interest, 
except that the periods of such uses may not exceed five years. The 
Commission may require permittees under this section to recondition and 
maintain, at their own expense, the real property, facilities, 
structures, and improvements used by such permittees to a standard 
satisfactory to the Commission. This subsection shall not apply to 
excess property as defined in section 3(e) of the Federal Property and 
Administrative Services Act of 1949.
    (c) Proceeds From Reimbursements.--Proceeds from reimbursements 
under this section may be credited to the appropriation of funds that 
bear or will bear all or part of the cost of such equipment or 
facilities provided or to refund excess sums when necessary.
    (d) Title to Property.--Any interest in real property acquired 
pursuant to this Act shall be acquired in the name of the United States 
Government.

SEC. 418. WORKING CAPITAL FUND.

    (a) Authority and Use.--The Commission, with the approval of the 
Director of the Office of Management and Budget, is authorized to 
establish for the Commission a working capital fund, to be available 
without fiscal year limitation, for expenses necessary for the 
maintenance and operation of such common administrative services as the 
Commission shall find to be desirable in the interests of economy and 
efficiency, including such services as--
            (1) a central supply service for stationery and other 
        supplies and equipment for which adequate stocks may be 
        maintained to meet in whole or in part the requirements of the 
        Commission and its components;
            (2) central messenger, mail, telephone, and other 
        communications services;
            (3) office space, central services for document 
        reproduction, and for graphics and visual aids; and
            (4) a central library service.
    (b) Contents and Management of Fund.--The capital of the fund shall 
consist of any appropriations made for the purpose of providing working 
capital and the fair and reasonable value of such stocks of supplies, 
equipment, and other assets and inventories on order as the Commission 
may transfer to the fund, less the related liabilities and unpaid 
obligations. Such funds shall be reimbursed in advance from available 
funds of agencies and offices in the Commission, or from other sources, 
for supplies and services at rates that will approximate the expense of 
operation, including the accrual of annual leave and the depreciation 
of equipment. The fund shall also be credited with receipts from sale 
or exchange of property and receipts in payment for loss or damage to 
property owned by the fund. There shall be covered into the Treasury as 
miscellaneous receipts any surplus of the fund (all assets, 
liabilities, and prior losses considered) above the amounts transferred 
or appropriated to establish and maintain such fund. There shall be 
transferred to the fund the stocks of supplies, equipment, other 
assets, liabilities, and unpaid obligations relating to the services 
which the Commission determines, with the approval of the Director of 
the Office of Management and Budget, will be performed.

SEC. 419. FUNDS TRANSFER.

    The Commission may, when authorized in an appropriation Act in any 
fiscal year, transfer funds from one appropriation to another within 
the Commission, except that no appropriation for any fiscal year shall 
be either increased or decreased pursuant to this section by more than 
5 percent and no such transfer shall result in increasing any such 
appropriation above the amount authorized to be appropriated therefor.

SEC. 420. SEAL OF COMMISSION.

    The Commission shall cause a seal of office to be made for the 
Commission of such design as the Commission shall approve. Judicial 
notice shall be taken of such seal.

SEC. 421. ANNUAL REPORT.

    (a) Contents.--The Commission shall, as soon as practicable after 
the close of each fiscal year, make a single, comprehensive report to 
the President for transmission to the Congress on the activities of the 
Commission during such fiscal year. The report shall include a 
statement of goals, priorities, and plans for the Commission together 
with an assessment of the progress made toward--
            (1) the attainment of such goals, priorities, and plans; 
        and
            (2) the more effective and efficient management of the 
        Commission and the coordination of its functions;
accompanied where necessary by recommendations for proposed legislation 
for the achievement of such objectives.
    (b) Contracting-Out Estimate.--The report required by subsection 
(a) shall also include an estimate of the extent of the non-Federal 
personnel employed pursuant to contracts entered into by the Commission 
under section 415 or under any other authority (including any 
subcontract thereunder), the number of such contracts and subcontracts 
pursuant to which non-Federal personnel are employed, and the total 
cost of those contracts and subcontracts.

       TITLE V--TRANSITIONAL, SAVINGS, AND CONFORMING PROVISIONS

SEC. 501. TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL.

    (a) In General.--Except as otherwise provided in this Act, the 
personnel employed in connection with, and the assets, liabilities, 
contracts, property, records, and unexpended balance of appropriations, 
authorizations, allocations, and other funds employed, held, used, 
arising from, available to, or to be made available in connection with 
the functions and offices, or portions thereof transferred by this Act, 
subject to section 202 of the Budget and Accounting Procedures Act of 
1950, shall be transferred to the Commission for appropriate 
allocation. Unexpended funds transferred pursuant to this subsection 
shall be used only for the purposes for which the funds were originally 
authorized and appropriated.
    (b) Exception.--Positions expressly specified by statute or 
reorganization plan to carry out functions or offices transferred by 
this Act, personnel occupying those positions on the effective date of 
this Act, and personnel authorized to receive compensation in such 
positions at the rate prescribed for offices and positions at level IV 
or V of the Executive Schedule (5 U.S.C. 5315-5316) on the effective 
date of this Act, shall be subject to the provisions of section 503.

SEC. 502. EFFECT ON PERSONNEL.

    (a) Protection Against Reduction in Grade or Compensation.--Except 
as otherwise provided in this Act, the transfer pursuant to this title 
of full-time personnel (except special Government employees) and part-
time personnel holding permanent positions shall not cause any such 
employee to be separated or reduced in grade or compensation for one 
year after the date of transfer to the Commission.
    (b) Executive Level Appointees.--Any person who, on the day 
preceding the effective date of this Act, held a position compensated 
in accordance with the Executive Schedule prescribed in chapter 53 of 
title 5, United States Code, and who, without a break in service, is 
appointed in the Commission to a position having duties comparable to 
the duties performed immediately preceding such appointment shall 
continue to be compensated in such new position at not less than the 
rate provided for such previous position, for the duration of the 
service of such person in such new position.

SEC. 503. AGENCY TERMINATIONS.

    (a) Terminated Agencies.--On the effective date of this Act, the 
following entities shall terminate:
            (A) The Commodity Futures Trading Commission.
            (B) The Securities and Exchange Commission.
    (b) Terminated Positions.--Each position which was expressly 
authorized by law, or the incumbent of which was authorized to receive 
compensation at the rate prescribed for level III, IV, or V of the 
Executive Schedule (5 U.S.C. 5315-5316), in an office terminated 
pursuant to this Act shall also terminate.

SEC. 504. INCIDENTAL TRANSFERS.

    (a) General Authority of OMB.--The Director of the Office of 
Management and Budget, at such time or times as the Director shall 
provide, is authorized and directed to make such determinations as may 
be necessary with regard to the functions, offices, or portions thereof 
transferred by this Act, and to make such additional incidental 
dispositions of personnel, assets, liabilities, grants, contracts, 
property, records, and unexpended balances of appropriations, 
authorizations, allocations, and other funds held, used, arising from, 
available to, or to be made available in connection with such 
functions, offices, or portions thereof, as may be necessary to carry 
out the provisions of this Act. The Director shall provide for the 
termination of the affairs of all entities terminated by this Act and 
for such further measures and dispositions as may be necessary to 
effectuate the purposes of this Act.
    (b) SES Positions.--After consultation with the Director of the 
Office of Personnel Management, the Director of the Office of 
Management and Budget is authorized, at such time as the Director of 
the Office of Management and Budget provides, to make such 
determinations as may be necessary with regard to the transfer of 
positions within the Senior Executive Service in connection with 
functions and offices transferred by this Act.

SEC. 505. SAVINGS PROVISIONS.

    (a) Continuity of Legal Instruments.--All orders, determinations, 
rules, regulations, permits, grants, contracts, certificates, licenses, 
and privileges--
            (1) which have been issued, made, granted, or allowed to 
        become effective by the President, any Federal department or 
        agency or official thereof, or by a court of competent 
        jurisdiction, in the performance of functions which are 
        transferred under this Act to the Commission, and
            (2) which are in effect at the time this Act takes effect,
shall continue in effect according to their terms until modified, 
terminated, superseded, set aside, or revoked in accordance with the 
law by the President, the Commission, or other authorized official, a 
court of competent jurisdiction, or by operation of law.
    (b) Continuity of Proceedings.--
            (1) In general.--The provisions of this Act shall not 
        affect any proceedings, including notices of proposed 
        rulemaking, or any application for any license, permit, 
        certificate, or financial assistance pending on the effective 
        date of this Act before any department, agency, commission, or 
        component thereof, functions of which are transferred by this 
        Act; but such proceedings and applications, to the extent that 
        they relate to functions so transferred, shall be continued. 
        Orders shall be issued in such proceedings, appeals shall be 
        taken therefrom, and payments shall be made pursuant to such 
        orders, as if this Act had not been enacted; and orders issued 
        in any such proceedings shall continue in effect until 
        modified, terminated, superseded, or revoked by the Commission, 
        by a court of competent jurisdiction, or by operation of law. 
        Nothing in this subsection shall be deemed to prohibit the 
        discontinuance or modification of any such proceeding under the 
        same terms and conditions and to the same extent that such 
        proceeding could have been discontinued or modified if this Act 
        had not been enacted.
            (2) Regulations concerning transfers.--The Commission is 
        authorized to promulgate regulations providing for the orderly 
        transfer of proceedings continued under paragraph (1) to the 
        Commission.
    (c) Pending Litigation.--Except as provided in subsection (e)--
            (1) the provisions of this Act shall not affect suits 
        commenced prior to the effective date of this Act, and
            (2) in all such suits, proceedings shall be had, appeals 
        taken, and judgments rendered in the same manner and effect as 
        if this Act had not been enacted.
    (d) Nonabatement.--No suit, action, or other proceeding commenced 
by or against any officer in the official capacity of such individual 
as an officer of any department or agency, functions of which are 
transferred by this Act, shall abate by reason of the enactment of this 
Act. No cause of action by or against any department or agency, 
functions of which are transferred by this Act, or by or against any 
officer thereof in the official capacity of such officer shall abate by 
reason of the enactment of this Act.
    (e) Substitution of Parties.--If, before the date on which this Act 
takes effect, any department or agency, or officer thereof in the 
official capacity of such officer, is a party to a suit, and under this 
Act any function of such department, agency, or officer is transferred 
to the Commission or any other official of the Commission, then such 
suit shall be continued with the Commission or other appropriate 
official of the Commission substituted or added as a party.
    (f) Judicial Review as Required by Existing Law.--Orders and 
actions of the Commission in the exercise of functions transferred 
under this Act shall be subject to judicial review to the same extent 
and in the same manner as if such orders and actions had been by the 
agency or office, or part thereof, exercising such functions 
immediately preceding their transfer. Any statutory requirements 
relating to notice, hearings, action upon the record, or administrative 
review that apply to any function transferred by this Act shall apply 
to the exercise of such function by the Commission.

SEC. 506. SEPARABILITY.

    If any provision of this Act or the application thereof to any 
person or circumstance is held invalid, neither the remainder of this 
Act nor the application of such provision to other persons or 
circumstances shall be affected thereby.

SEC. 507. REFERENCE.

    With respect to any function transferred by this Act and exercised 
on or after the effective date of this Act, reference in any other 
Federal law to any department, commission, or agency or any officer or 
office the functions of which are so transferred shall be deemed to 
refer to the Commission, other official, or component of the Commission 
to which this Act transfers such functions.

SEC. 508. AMENDMENTS.

    (a) Executive Schedule Salaries.--
            (1) Chairman.--Section 5314 of title 5, United States Code, 
        is amended--
                    (A) by striking ``Chairman, Securities and Exchange 
                Commission.'' and inserting ``Chairman, Markets and 
                Trading Commission.''; and
                    (B) by striking ``Chairman, Commodity Futures 
                Trading Commission.''.
            (2) Members.--Section 5315 of title 5, United States Code, 
        is amended--
                    (A) by striking ``Members, Securities and Exchange 
                Commission'' and inserting ``Members, Markets and 
                Trading Commission''; and
                    (B) by striking ``Members, Commodity Futures 
                Trading Commission.''.
    (b) Conforming Amendments.--
            (1) Securities exchange act.--Sections 4 and 35 of the 
        Securities Exchange Act of 1934 are repealed.
            (2) Commodity exchange act.--Section 2(a) of the Commodity 
        Exchange Act is amended by striking paragraphs (2), (3), and 
        (4).

SEC. 509. TRANSITION.

    With the consent of the appropriate department or agency head 
concerned, the Commission is authorized to utilize the services of such 
officers, employees, and other personnel of the departments and 
agencies from which functions or offices have been transferred to the 
Commission, and funds appropriated to such functions or offices for 
such period of time as may reasonably be needed to facilitate the 
orderly implementation of this Act.

                TITLE VI--REGULATION OF OTC DERIVATIVES

SEC. 601. REGULATION OF OVER-THE-COUNTER DERIVATIVES.

    (a) In General.--The Commission shall prescribe such rules and 
regulations governing over-the-counter derivatives dealers and over-
the-counter derivatives transactions as may be necessary and 
appropriate in the public interest and for the protection of investors 
to ensure the safety and soundness of financial markets and the 
Nation's economy as a whole, including rules and regulations with 
respect to--
            (1) the eligibility of persons to trade over-the-counter 
        derivatives;
            (2) registration requirements for over-the-counter 
        derivatives dealers, institutions employing over-the-counter 
        derivatives dealers, and facilities on which over-the-counter 
        derivatives transactions are executed, which shall be similar 
        to the registration requirements prescribed under the 
        Securities Exchange Act of 1934 for securities dealers, for 
        institutions employing securities dealers, and for securities 
        exchanges;
            (3) adequate capital requirements for over-the-counter 
        derivatives dealers, that are similar to the net capital 
        requirements applicable to securities dealers under section 
        15(c)(3) of the Securities Exchange Act of 1934;
            (4) adequate collateral or margin for over-the-counter 
        derivatives transactions, which rules and regulations shall be 
        prescribed in consultation with the Board of Governors of the 
        Federal Reserve System;
            (5) registration and approval of facilities for the 
        execution of over-the-counter derivatives transactions;
            (6) sales practices, including sales licensing and 
        training;
            (7) self-regulation;
            (8) internal risk control;
            (9) disciplinary procedures;
            (10) violations and enforcement; and
            (11) standardized reporting and recordkeeping requirements.
    (b) Reporting Requirements.--
            (1) In general.--An over-the-counter derivatives dealer 
        shall submit to the Commission, in such form and manner as the 
        Commission may prescribe--
                    (A) a daily report on price, volume of 
                transactions, open interest, implied volatility of 
                options contracts, and the positions of large traders 
                in the over-the-counter derivatives market; and
                    (B) a quarterly report on the over-the-counter 
                derivatives in the dealer's own account, and for each 
                type of over-the-counter derivative, the currency, 
                maturity, and the underlying basis for pricing.
            (2) Data elements.--The Commission shall prescribe how each 
        feature of an over-the-counter derivatives transaction is to be 
        reported to the Commission pursuant to paragraph (1).
            (3) Retroactive applicability.--On registration of an over-
        the-counter derivatives dealer under this section, the dealer 
        shall file with the Commission a report of the type described 
        in paragraph (1)(B) covering the calendar quarter most recently 
        ending before the registration date.
    (c) Definitions.--In this section:
            (1) Over-the-counter derivatives dealer.--The term ``over-
        the-counter derivatives dealer'' means--
                    (A) any person engaged in the business of buying, 
                selling, trading, and clearing over-the-counter 
                derivatives for the person's own account, as an 
                intermediary for others, through an intermediary, or 
                otherwise; and
                    (B) any counter party to the transaction whose 
                exposure to over-the-counter derivatives exceeds such 
                threshold as the Commission shall prescribe by 
                regulation.
            (2) Over-the-counter derivative.--The term ``over-the-
        counter derivative'' means--
                    (A)(i) any agreement, contract, or transaction that 
                is not subject to regulation--
                            (I) under the Securities Exchange Act of 
                        1934 as a security (as defined in section 
                        3(a)(10) of the such Act) or a security future 
                        product (as defined in section 3(a)(56) of such 
                        Act); or
                            (II) as a financial instrument traded on a 
                        board of trade which, before December 21, 2000, 
                        was designated by the Commission as a contract 
                        market; or
                    (ii) any condition incorporated by reference in any 
                such agreement, contract, or transaction; and
                    (B) the value of which agreement, contract, 
                transaction, or condition depends on--
                            (i) an interest rate, exchange rate, 
                        currency, security, security index, credit risk 
                        or measure, debt or equity instrument, index or 
                        measure of inflation or other macroeconomic 
                        index;
                            (ii) any other rate, differential, index or 
                        measure of economic or commercial risk, return, 
                        or value;
                            (iii) any economic or commercial index 
                        based on prices, rates, value or levels that 
                        are beyond the control of any party to the 
                        relevant contract, agreement or transaction; or
                            (iv) an occurrence, extent of an 
                        occurrence, or contingency that is beyond the 
                        control of the parties to the relevant 
                        contract, agreement, or transaction.
    (d) Criminal Provisions.--
            (1) It shall be a felony punishable by a fine of not more 
        than $1,000,000 (or $500,000, in the case of a person who is an 
        individual), imprisonment for not more than 5 years, or both, 
        together with the costs of prosecution, for:
                    (A) Any person registered or required to be 
                registered under this section, or any employee or agent 
                thereof, to embezzle, steal, purloin, or with criminal 
                intent convert to the person's use or to the use of 
                another, any money, securities, or property having a 
                value in excess of $100, which was received by the 
                person or any employee or agent thereof to margin, 
                guarantee, or secure the trades or contracts of any 
                customer or accruing to the customer as a result of the 
                trades or contracts or which otherwise was received 
                from any customer, client, or pool participant in 
                connection with the business of the person. In this 
                subparagraph, the term ``value'' means face, par, or 
                market value, or cost price, either wholesale or 
                retail, whichever is greater.
                    (B) Any person to manipulate or attempt to 
                manipulate the price of any over-the-counter derivative 
                in interstate commerce, or for future delivery on or 
                subject to the rules of any entity registered under 
                this section, or to corner or attempt to corner any 
                such derivative or knowingly to deliver or cause to be 
                delivered for transmission through the mails or 
                interstate commerce by telegraph, telephone, wireless, 
                or other means of communication false or misleading or 
                knowingly inaccurate reports concerning market 
                information or conditions that affect or tend to affect 
                the price of any derivative in interstate commerce.
                    (C) Any person knowingly to make, or cause to be 
                made, any statement in any application, report, or 
                document required to be filed under this section or any 
                rule or regulation under this section or any 
                undertaking contained in a registration statement 
                required under this section, which statement was false 
                or misleading with respect to any material fact, or 
                knowingly to omit any material fact required to be 
                stated in the statement or necessary to make the 
                statements in the statement not misleading.
                    (D) Any person willfully to falsify, conceal, or 
                cover up by any trick, scheme, or artifice a material 
                fact, make any false, fictitious, or fraudulent 
statements or representations, or make or use any false writing or 
document knowing the same to contain any false, fictitious, or 
fraudulent statement or entry to an entity registered under this 
section acting in furtherance of its official duties under this 
section.
                    (E) Any person willfully to violate any other 
                provision of this section, or any rule or regulation 
                under this section, the violation of which is made 
                unlawful or the observance of which is required under 
                this section, but a person shall not be subject to 
                imprisonment under this subparagraph for the violation 
                of any rule or regulation if the person proves that the 
                person had no knowledge of the rule or regulation.
            (2) Any person convicted of a felony under this subsection 
        shall be suspended from registration under this section and 
        shall be denied registration or reregistration for 5 years or 
        such longer period as the Commission may determine, and barred 
        from using, or participating in any manner in, any market 
        regulated by the Commission for 5 years or such longer period 
        as the Commission shall determine, on such terms and conditions 
        as the Commission may prescribe, unless the Commission 
        determines that the imposition of the suspension, denial of 
        registration or reregistration, or market bar is not required 
        to protect the public interest. The Commission may upon 
        petition later review the disqualification and market bar and 
        for good cause shown reduce the period of the disqualification.
            (3) It shall be a felony punishable by a fine of not more 
        than $500,000, imprisonment for not more than 5 years, or both, 
        together with the costs of prosecution, for any Commissioner of 
        the Commission or any employee or agent of the Commission, to 
        participate, directly or indirectly, in any over-the-counter 
        derivatives transaction, or any transaction for the delivery of 
        any over-the-counter derivative under a standardized contract 
        commonly known to the trade as a margin account, margin 
        contract, leverage account, or leverage contract, or under any 
        contract, account, arrangement, scheme, or device that the 
        Commission determines serves the same function or functions as 
        such a standardized contract, or is marketed or managed in 
        substantially the same manner as such a standardized contract, 
        or for any such person to participate, directly or indirectly, 
        in any investment transaction in an over-the-counter derivative 
        if nonpublic information is used in the investment transaction, 
        if the investment transaction is prohibited by rule or 
        regulation of the Commission, or if the investment transaction 
        is effected by means of any instrument regulated by the 
        Commission. The foregoing prohibitions shall not apply to any 
        transaction or class of transactions that the Commission, by 
        rule or regulation, has determined would not be contrary to the 
        public interest or otherwise inconsistent with the purposes of 
        this paragraph.
            (4) It shall be a felony punishable by a fine of not more 
        than $500,000, imprisonment for not more than 5 years, or both, 
        together with the costs of prosecution for:
                    (A) Any Commissioner of the Commission or any 
                employee or agent of the Commission who, by virtue of 
                his employment or position, acquires information which 
                may affect or tend to affect the price of any over-the-
                counter derivatives transaction and which information 
                has not been made public to impart such information 
                with intent to assist another person, directly or 
                indirectly, to participate in any over-the-counter 
                derivatives transaction or in any transaction for the 
                delivery of any over-the-counter derivative under a 
                standardized contract commonly known to the trade as a 
                margin account, margin contract, leverage account, or 
                leverage contract, or under any contract, account, 
                arrangement, scheme, or device that the Commission 
                determines serves the same function or functions as 
                such a standardized contract, or is marketed or managed 
                in substantially the same manner as such a standardized 
                contract.
                    (B) Any person to acquire such information from any 
                Commissioner of the Commission or any employee or agent 
                of the Commission and to use such information in any 
                over-the-counter derivatives transaction or in any 
                transaction for the delivery of any over-the-counter 
                derivative under a standardized contract commonly known 
                to the trade as a margin account, margin contract, 
                leverage account, or leverage contract, or under any 
                contract, account, arrangement, scheme, or device that 
                the Commission determines serves the same function or 
                functions as such a standardized contract, or is 
                marketed or managed in substantially the same manner as 
                such a standardized contract.
            (5)(A) It shall be a felony for any person--
                    (i) who is an employee, member of the governing 
                board, or member of any entity registered under this 
                section, in violation of a regulation issued by the 
                Commission, willfully and knowingly to trade for the 
                person's own account, or for or on behalf of any other 
                account, in over-the-counter derivatives transactions 
                on the basis of, or willfully and knowingly to disclose 
                for any purpose inconsistent with the performance of 
                such person's official duties as an employee or member, 
                any material nonpublic information obtained through 
                special access related to the performance of such 
                duties; or
                    (ii) willfully and knowingly to trade for the 
                person's own account, or for or on behalf of any other 
                account, in over-the-counter derivatives transactions 
                on the basis of any material nonpublic information that 
                the person knows was obtained in violation of clause 
                (i) from an employee, member of the governing board, or 
                member of any committee of an entity registered under 
                this section.
            (B) The felony shall be punishable by a fine of not more 
        than $500,000, plus the amount of any profits realized from the 
        trading or disclosure made in violation of this paragraph, or 
        imprisonment for not more than 5 years, or both, together with 
        the costs of prosecution.
    (e) Private Rights of Action.--
            (1)(A) Any person (other than an entity registered under 
        this section) who violates this section or a regulation 
        prescribed under this section or who willfully aids, abets, 
        counsels, induces, or procures the commission of a violation of 
        this section or of such a regulation shall be liable for actual 
        damages caused by the violation to any other person--
                    (i) who received trading advice from such person 
                for a fee;
                    (ii) who purchased or sold an over-the-counter 
                derivative if the violation constitutes a manipulation 
                of the price of any such derivative or of a rate, 
                currency, index, measure, value, or level on which such 
                a derivative is based;
                    (iii) who made through the person any contract of 
                sale of any over-the-counter derivative for future 
                delivery (or option on such a contract or derivative), 
                or who deposited with or paid to the person money, 
securities, or property (or incurred debt in lieu thereof) in 
connection with any order to make such a contract; or
                    (iv) who purchased or sold a contract referred to 
                in clause (iii) if the violation constitutes a 
                manipulation of the price of any such contract or the 
                price of any derivative underlying the contract.
            (B) Except as provided in paragraph (2), the rights of 
        action authorized by this paragraph shall be the exclusive 
        remedies under this section available to any person who 
        sustains loss as a result of any alleged violation of this 
        section. This paragraph shall not be construed to limit or 
        abridge the rights of the parties to agree in advance of a 
        dispute on any forum for resolving claims under this 
        subsection, including arbitration.
            (C) In an action arising from a violation in the execution 
        of an order on the floor of an entity registered under this 
        section, the person referred to in subparagraph (A) shall be 
        liable for--
                    (i) actual damages proximately caused by the 
                violation; and
                    (ii) if the violation is willful and intentional, 
                punitive or exemplary damages equal to no more than 
                twice the amount of the actual damages.
            (2)(A)(i) A entity registered under this section that fails 
        to enforce any bylaw, rule, regulation, or resolution that the 
        entity is required under this section to enforce, or that in 
        enforcing any such bylaw, rule, regulation, or resolution 
        violates this section or any Commission rule, regulation, or 
        order issued under this section, shall be liable for actual 
        damages sustained by a person who engaged in any transaction on 
        or subject to the rules of the entity to the extent of the 
        person's actual losses that resulted from the transaction and 
        were caused by the failure to enforce or by enforcement of the 
        bylaws, rules, regulations, or resolutions.
            (B) An individual who, in the capacity as an officer, 
        director, governor, committee member, or employee of an entity 
        registered under this section willfully aids, abets, counsels, 
        induces, or procures any failure by any such entity to enforce 
        (or any violation of this section in enforcing) any bylaw, 
        rule, regulation, or resolution referred to in subparagraph (A) 
        of this paragraph, shall be liable for actual damages sustained 
        by a person who engaged in any transaction specified in 
        paragraph (1) of this subsection on, or subject to the rules 
        of, the entity, to the extent of the person's actual losses 
        that resulted from the transaction and were caused by the 
        failure or violation.
            (C) A person seeking to enforce liability under this 
        subsection must establish that the entity, officer, director, 
        governor, committee member, or employee acted in bad faith in 
        failing to take action or in taking the action as was taken, 
        and that the failure or action caused the loss.
            (D) The rights of action authorized by this paragraph shall 
        be the exclusive remedy under this section available to any 
        person who sustains a loss as a result of--
                    (i) the alleged failure by an entity registered 
                under this section or by any officer, director, 
                governor, committee member, or employee to enforce any 
                bylaw, rule, regulation, or resolution referred to in 
                subparagraph (A) of this paragraph, or
                    (ii) the taking of action in enforcing any bylaw, 
                rule, regulation, or resolution referred to in this 
                paragraph that is alleged to have violated this 
                section, or any Commission rule, regulation, or order 
                issued under this section.
            (3) The United States district courts shall have exclusive 
        jurisdiction of actions brought under this subsection. Any such 
        action shall be brought not later than 2 years after the date 
        the cause of action arises. Any action brought under paragraph 
        (1) may be brought in any judicial district in which the 
        defendant is found, resides, or transacts business, or in the 
        judicial district in which any act or transaction constituting 
        the violation occurs. Process in such action may be served in 
        any judicial district of which the defendant is an inhabitant 
        or wherever the defendant may be found.
    (f) Superiority to Commodity Exchange Act and the Commodity Futures 
Modernization Act of 2000.--In the event of any conflict between any 
provision of, or regulation prescribed under, this section and any 
provision of, or regulation prescribed under, the Commodity Exchange 
Act or the Commodity Futures Modernization Act of 2000, the provison 
of, or regulation prescribed under, this section shall control.
    (g) Conforming Amendments.--The Commodity Exchange Act is amended--
            (1) in section 1a (7 U.S.C. 1a)--
                    (A) by striking paragraph (13); and
                    (B) in paragraph (14), by striking ``an excluded 
                commodity or''; and
            (2) in section 2 (7 U.S.C. 2)--
                    (A) in subsection (c)(1)--
                            (i) by adding ``or'' at the end of 
                        subparagraph (E); and
                            (ii) by striking subparagraph (F) and 
                        redesignating subparagraph (G) as subparagraph 
                        (F); and
                    (B) in subsection (i)(1)(A), by striking ``2(d),''.

                       TITLE VII--EFFECTIVE DATE

SEC. 701. EFFECTIVE DATE.

    (a) In General.--The provisions of this Act shall take effect 180 
days after the first Commissioner takes office, or on any later date on 
or before October 1, 2003, as the President may prescribe and publish 
in the Federal Register, except that at any time on or after the date 
of enactment of this Act--
            (1) any of the officers provided for in title II of this 
        Act may be nominated and appointed, as provided in such title; 
        and
            (2) the Commission may promulgate regulations pursuant to 
        section 505(b)(2) of this Act.
    (b) Transition Expenses.--Funds available to any department or 
agency (or any official department or agency or any official or 
component thereof), the functions or offices of which are transferred 
to the Commission by this Act, may, with the approval of the Director 
of the Office of Management and Budget, be used to pay the compensation 
and expenses of any officer appointed pursuant to this title and other 
transitional and planning expenses associated with the establishment of 
the Commission or transfer of functions or offices thereto until such 
time as funds for such purposes are otherwise available.
                                 <all>