[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.''.
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