SA 814. Mr. CRAPO (for himself, Mr. JOHANNS, Mr. SHELBY, Mr. TOOMEY, Mr. MORAN, and Mr. VITTER) submitted an amendment intended to be proposed to amendment SA 738 proposed by Mr. INOUYE to the bill H.R. 2112, making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies programs for the fiscal year ending September 30, 2012, and for other purposes; which was ordered to lie on the table; as follows:


On page 83, between lines 20 and 21, insert the following:
Sec. __. None of the funds made available by this Act may be used by the Commodity Futures Trading Commission--

(1) to promulgate any final rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203; 124 Stat. 1376) (including under any law amended by that Act) or the Commodity Exchange Act (7 U.S.C. 1 et seq.), until the Commodity Futures Trading Commission, jointly with the Securities and Exchange Commission and the prudential regulators (as defined in section 1a of the Commodity Exchange Act (7 U.S.C. 1a))--
(A) has, pursuant to the notice and comment provisions of section 553 of title 5, United States Code, adopted an implementation schedule for title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. 8301 et seq.) (including amendments made by that title) (referred to this section as "the title") that sets forth a schedule for the publication of final rules required by the title that--
(i) begins with the publication of the rules required under section 712(d)(1) of that Act (15 U.S.C. 8302); and
(ii) includes provisions that require a rulemaking and provisions that do not require a rulemaking; and
(B) has completed and submitted to Congress an analysis that includes--
(i) a quantitative analysis of the effects of the title on United States economic growth and job creation;
(ii) an assessment of the implications of the title for cross-border activity by, and international competitiveness of, United States financial institutions, companies, and investors;
(iii) an assessment of whether and how the definitional, clearing, trading, reporting, recordkeeping, real-time reporting, registration, capital, margin, business conduct, position limits, and other requirements of the title work together, and how those requirements affect market depth and liquidity;
(iv) an assessment of the implications of any lack of harmonization by the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the prudential regulators with respect to the timing and the substance of the rules of those entities; and
(v) an analysis of the progress of members of the Group of 20 and other countries toward implementing derivatives regulatory reform, including material differences in the schedule for implementation (as well as material differences in definitions, clearing, trading, reporting, registration, capital, margin, business conduct, and position limits) and the possible and likely effects on United States competitiveness, market liquidity, and financial stability; or
(2) to further define the terms--
(A) "swap" and "security-based swap" to include--
(i) for purposes of section 4s(e) of the Commodity Exchange Act (7 U.S.C. 6s(e)) and section 15F(e) of the Securities Exchange Act of 1934 (15 U.S.C. 78o-10(e)), an agreement, contract, or transaction that would otherwise be a swap or security-based swap, in which 1 of the counterparties is not--
(I) a swap dealer or major swap participant;
(II) an investment fund that--
(aa) has issued securities (other than debt securities) to more than 5 unaffiliated persons;
(bb) would be an investment company (as defined in section 3 of the Investment Company Act of 1940 (15 U.S.C. 80a-3)) but for paragraph (1) or (7) of subsection (c) of that section; and
(cc) is not primarily invested in physical assets (including commercial real estate) directly or through an interest in an affiliate that owns the physical assets;
(III) a regulated entity, as defined in section 1303 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4502); or
(IV) a commodity pool that is predominantly invested in any combination of commodities, commodity swaps, commodity options, or commodity futures;
(ii) an agreement, contract, or transaction that would otherwise be a swap or security-based swap, and that is entered into by a party that is controlling, controlled by, or under common control with its counterparty; or
(iii) except with respect to any law (including rules and regulations) prohibiting fraud or manipulation, an agreement, contract, or transaction that would otherwise be a swap or security-based swap and--
(I) is entered into outside of the United States between counterparties established under the laws of any jurisdiction outside of the United States (including a non-United States branch of a United States entity licensed and recognized under local law outside of the United States);
(II) has a valid business purpose;
(III) is not structured with the sole purpose of evading the requirements of the title; and
(IV) is not reasonably expected to have a serious adverse effect on the stability of the United States financial system; and
(B) "major swap participant" and "major security-based swap participant" in a manner that does not distinguish between--
(i) net and gross exposures; and
(ii) collateralized and uncollateralized positions.


(As printed in the Congressional Record for the Senate on Oct 18, 2011.)