Further Definition of "Swap," "Security-Based Swap," and "Security-Based Swap Agreement"; Mixed Swaps; Security-Based Swap Agreement Recordkeeping -- Joint Final Rule (CFTC/SEC - Fed. Reg. Version)

Further Definition of "Swap," "Security-Based Swap," and "Security-Based Swap Agreement"; Mixed Swaps; Security-Based Swap Agreement Recordkeeping -- Joint final rule; interpretations; request for comment on an interpretation (CFTC/SEC - Fed. Reg. Version)

The Commissions' definition of "swap" is now in the Federal Register. Accordingly, the effective date of many of the CFTC Rules, which were due to come into effect in a specified number of days after such publication, may now be determined. [Steven Lofchie Comment: The definition of "swap" has been narrowed somewhat from the proposed version. I remain of the view that it is both overbroad and too undefined; in many instances, the Commissions punt to a "facts and circumstances" measure of what is a swap, even where there is no hint of what facts and circumstances might be significant. In any case, we will be writing about this topic further. See my prior article on this subject: What is a Swap? Maybe (Almost) Everything? You Gotta Problem with That?]

Effective Date: October 12, 2012

Compliance Date: The applicable compliance dates are discussed in the section of the release titled "IX. Effective Date and Implementation."

Comment Due: October 12, 2012

Cross Reference(s):

• 76 FR 29818 (Joint proposed rules; proposed interpretations); 76 FR 32880 (Joint proposed rules; proposed interpretations; correction);
• Dodd-Frank Sections 712, 721, and 761;
• CFTC Rule(s) 1.3 (xxx), (yyy), (zzz), (aaaa) and (bbbb); CFTC Rules 1.6 (Anti-evasion), 1.7 (Books and records requirements for security-based swap agreements), 1.8 (Requests for interpretation of swaps, security-based swaps, and mixed swaps), 1.9 (Regulation of mixed swaps);
• Securities Act Rule(s) 194 (Definitions of the terms "swap" and "security-based swap" as used in the Act); and
• Exchange Act Rule(s) 3a68-1a (Meaning of "issuers of securities in a narrow-based security index" as used in section 3(a)(68)(A)(ii)(III) of the Act), 3a68-1b (Meaning of "narrow-based security index" as used in section 3(a)(68)(A)(ii)(I) of the Act), 3a68-2 (Requests for interpretation of swaps, security-based swaps, and mixed swaps), 3a68-3 (Meaning of "narrow-based security index" as used in the definition of "security-based swap"), 3a68-4 (Regulation of mixed swaps), 3a68-5 (Regulation of certain futures contracts on foreign sovereign debt), 3a69-1 (Safe Harbor Definition of "security-based swap" and "swap" as used in sections 3(a)(68) and 3(a)(69) of the Act-insurance), 3a69-2 (Definition of "swap" as used in section 3(a)(69) of the Act-additional products), 3a69-3 (Books and records requirements for security-based swap agreements).

View rule release here (links externally to Federal Register website).