[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3045 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 3045

   To amend the Employee Retirement Income Security Act of 1974, the 
  Commodity Exchange Act, and the Securities Exchange Act of 1934 to 
 ensure that pension plans can use swaps to hedge risks, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 23, 2011

  Mr. Canseco (for himself and Mr. Garrett) introduced the following 
   bill; which was referred to the Committee on Agriculture, and in 
addition to the Committees on Education and the Workforce and Financial 
Services, 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 Employee Retirement Income Security Act of 1974, the 
  Commodity Exchange Act, and the Securities Exchange Act of 1934 to 
 ensure that pension plans can use swaps to hedge risks, 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 ``Retirement Income Protection Act of 
2011''.

SEC. 2. CLARIFICATION OF THE DEFINITION OF FIDUCIARY.

    Section 3(21) of the Employee Retirement Income Security Act of 
1974 (29 U.S.C. 1002(21)) is amended--
            (1) in subparagraph (A), by striking ``subparagraph (B)'' 
        and inserting ``subparagraphs (B) and (C)'';
            (2) by adding at the end the following subparagraph:
            ``(C) No person shall be a fiduciary with respect to a plan 
        by reason of any service, act, or duty that such person is 
        required to perform with respect to such plan by reason of 
        section 4s(h) of the Commodity Exchange Act, section 15F(h) of 
        the Securities Exchange Act of 1934, any rule, regulation, or 
        standard prescribed pursuant to such sections, or any other 
        Federal law, rule, or regulation.''.

SEC. 3. CLARIFICATION OF THE DEFINITION OF SPECIAL ENTITY AND REMOVAL 
              OF ERISA PLANS.

    (a) Amendment to the CEA.--Section 4s(h)(2)(C) of the Commodity 
Exchange Act (7 U.S.C. 6s(h)(2)(C)) is amended--
            (1) by striking ``For purposes'' and inserting ``(i) For 
        purposes'';
            (2) by striking clause (iii) and redesignating clauses (i), 
        (ii), (iv), and (v) as subclauses (I), (II), (III) and (IV), 
        respectively; and
            (3) by adding at the end the following:.
                    ``(ii) Such term shall not include any collective 
                investment vehicle in which one or more special 
                entities invest.''.
    (b) Amendment to the 1934 Act.--Section 15F(h)(2)(C) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o-10(h)(2)(C)) is 
amended--
            (1) by striking ``For purposes'' and inserting ``(i) For 
        purposes'';
            (2) by striking clause (iii) and redesignating clauses (i), 
        (ii), (iv), and (v) as subclauses (I), (II), (III) and (IV), 
        respectively; and
            (3) by adding at the end the following:
                    ``(ii) Such term shall not include any collective 
                investment vehicle in which one or more special 
                entities invest.''.

SEC. 4. CONFORMING AMENDMENTS TO COUNTERPARTY REQUIREMENTS.

    (a) Amendment to the CEA.--Section 4s(h)(5)(A)(i) of the Commodity 
Exchange Act (7 U.S.C. 6s(h)(5)(A)(i)) is amended--
            (1) by inserting ``and'' after the semicolon in subclause 
        (V); and
            (2) by striking subclause (VII).
    (b) Amendment to the 1934 Act.--Section 15F(h)(5)(A)(i) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o-10(h)(5)(A)(i)) is 
amended--
            (1) by inserting ``and'' after the semicolon in subclause 
        (V); and
            (2) by striking subclause (VII).

SEC. 5. CLARIFICATION OF THE DEFINITION OF ADVISOR.

    (a) Amendment to the CEA.--Section 4s(h)(4) of the Commodity 
Exchange Act (7 U.S.C. 6s(h)(4)) is amended--
            (1) in subparagraph (B), by adding at the end the 
        following: ``The duty of a swap dealer to act in the best 
        interests of a Special Entity shall not be construed to be a 
        fiduciary standard under Federal or State Law.''; and
            (2) by adding at the end the following:
                    ``(D) Rule of construction.--A swap dealer will not 
                be treated as an advisor to a Special Entity if--
                            ``(i) the Special Entity represents in 
                        writing that--
                                    ``(I) the Special Entity will not 
                                rely on recommendations provided by the 
                                swap dealer; and
                                    ``(II) the Special Entity will rely 
                                on advice from an independent 
                                representative as described in 
                                paragraph (5); and
                            ``(ii) the swap dealer discloses to the 
                        Special Entity that it is not undertaking to 
                        act in the best interests of the Special 
                        Entity, as otherwise required by this 
                        paragraph.
                No swap dealer shall be considered to act as an advisor 
                to a Special Entity solely by reason of providing 
                information to an independent representative described 
                in paragraph (5)(D) of a Special Entity.''.
    (b) Amendment to the 1934 Act.--Section 15F(h)(4)(B) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o-10(h)(4)(B)) is 
amended--
            (1) in subparagraph (B), by adding at the end the 
        following: ``The duty of a security-based swap dealer to act in 
        the best interests of a Special Entity shall not be construed 
        to be a fiduciary standard under Federal or State Law.''; and
            (2) by adding at the end the following:
                    ``(D) Rule of construction.--A security-based swap 
                dealer will not be treated as an advisor to a Special 
                Entity if--
                            ``(i) the Special Entity represents in 
                        writing that--
                                    ``(I) the Special Entity will not 
                                rely on recommendations provided by the 
                                security-based swap dealer; and
                                    ``(II) the Special Entity will rely 
                                on advice from an independent 
                                representative as described in 
                                paragraph (5); and
                            ``(ii) the security-based swap dealer 
                        discloses to the Special Entity that it is not 
                        undertaking to act in the best interests of the 
                        Special Entity, as otherwise required by this 
                        paragraph.
                No security-based swap dealer shall be considered to 
                act as an advisor to a Special Entity solely by reason 
                of providing information to an independent 
                representative described in paragraph (5)(D) of a 
                Special Entity.''.

SEC. 6. CLARIFICATION OF THE DEFINITION OF INDEPENDENT REPRESENTATIVES.

    (a) Amendment to the CEA.--Section 4s(h)(5) of the Commodity 
Exchange Act (7 U.S.C. 6s(h)(5)) is amended--
            (1) in subparagraph (A)(ii) by striking ``; and'' and 
        inserting a period;
            (2) in subparagraph (B), by striking ``the Commission'' and 
        inserting ``The Commission'';
            (3) by adding at the end the following subparagraphs:
                    ``(C) A representative of a Special Entity will be 
                considered to be independent of a swap dealer if--
                            ``(i) the representative is not an 
                        associated person of the swap dealer within the 
                        meaning of section 1a(4); and
                            ``(ii) no more than 10 percent of the gross 
                        revenues of the representative are derived from 
                        the swap dealer.
                    ``(D) Each of the requirements of this paragraph 
                shall be considered to be met if the Special Entity 
                represents to the swap dealer that it is represented 
                by--
                            ``(i) an entity registered as an investment 
                        adviser under the Investment Advisers Act of 
                        1940;
                            ``(ii) a commodity trading adviser as 
                        defined in section 1a(12);
                            ``(iii) a municipal advisor as defined in 
                        section 15B(e)(4) of the Securities Exchange 
                        Act of 1934; or
                            ``(iv) an advisor certified by the National 
                        Futures Association.''.
    (b) Amendment to the 1934 Act.--Section 15F(h)(5) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78o-10(h)(5)) is amended by adding at 
the end the following subparagraphs:
                    ``(C) Independence.--A representative of a Special 
                Entity will be considered to be independent of a 
                security-based swap dealer if--
                            ``(i) the representative is not an 
                        associated person of the security-based swap 
                        dealer within the meaning of section 1a(4) of 
                        the Commodity Exchange Act; and
                            ``(ii) no more than 10 percent of the gross 
                        revenues of the representative are derived from 
                        the security-based swap dealer.
                    ``(D) Rule of construction.--Each of the 
                requirements of this paragraph shall be considered to 
                be met if the Special Entity represents to the 
                security-based swap dealer that it is represented by--
                            ``(i) an entity registered as an investment 
                        adviser under the Investment Advisers Act of 
                        1940;
                            ``(ii) a commodity trading adviser as 
                        defined in section 1a(12) of the Commodity 
                        Exchange Act;
                            ``(iii) a municipal advisor as defined in 
                        section 15B(e)(4); or
                            ``(iv) an advisor certified by the 
                        Financial Industry Regulatory Authority.''.

SEC. 7. AMENDMENT TO THE DEFINITION OF COMMODITY TRADING ADVISOR.

    Section 1a(12)(B)(iii) of the Commodity Exchange Act (7 U.S.C. 
1a(12)(B)(iii)) is amended by striking ``or futures commission 
merchant'' and inserting ``, futures commission merchant, or swap 
dealer''.

SEC. 8. EFFECTIVE DATE.

    (a) In General.--The amendments made by sections 3 through 7 to the 
respective provisions of the Commodity Exchange Act and the Securities 
Exchange Act of 1934 shall take effect as if included in the sections 
of the Dodd-Frank Wall Street Reform and Consumer Protection Act that 
added such respective provisions to such Acts.
    (b) ERISA Amendments.--The amendment made by section 2 of this Act 
shall take effect as if enacted on the date of enactment of the Dodd-
Frank Wall Street Reform and Consumer Protection Act.
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