2011-17626

Federal Register, Volume 76 Issue 134 (Wednesday, July 13, 2011)[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]

[Rules and Regulations]

[Pages 41048-41056]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2011-17626]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AD23

Agricultural Commodity Definition

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or

``CFTC'') is charged with proposing rules to implement new statutory

provisions enacted by Title VII of the Dodd-Frank Wall Street Reform

and Consumer Protection Act (``Dodd-Frank Act''). The Dodd-Frank Act,

which amends the Commodity Exchange Act (``CEA'' or ``Act''), includes

provisions applicable to ``a swap in an agricultural commodity (as

defined by the [CFTC]).'' Neither Congress nor the CFTC has previously

defined that term for purposes of the CEA or CFTC regulations. On

October 26, 2010, the Commission requested comment on a proposed

definition. After reviewing the comments submitted in response to the

proposed definition, the Commission has determined to issue these final

rules in essentially the same form as originally proposed, subject to a

minor revision to the commodity-based index provision.

DATES: Effective Date--September 12, 2011.

FOR FURTHER INFORMATION CONTACT: Donald Heitman, Senior Special

Counsel, (202) 418-5041, [email protected], or Ryne Miller, Attorney

Advisor, (202) 418-5921, [email protected], Division of Market

Oversight, Commodity Futures Trading Commission, Three Lafayette

Centre, 1155 21st Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

Part I--Background

On July 21, 2010, President Obama signed the Dodd-Frank Wall Street

Reform and Consumer Protection Act.\1\ Title VII of the Dodd-Frank Act

\2\ amended the CEA \3\ to establish a comprehensive new regulatory

framework for swaps and security-based swaps. The legislation was

enacted to reduce risk, increase transparency, and promote market

integrity within the financial system by, among other things: (1)

Providing for the registration and comprehensive regulation of swap

dealers and major swap participants; (2) imposing clearing and trade

execution requirements on standardized derivative products; (3)

creating robust recordkeeping and real-time reporting regimes; and (4)

enhancing the Commission's rulemaking and enforcement authorities with

respect to, among others, all registered entities and intermediaries

subject to the Commission's oversight.

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\1\ See Dodd-Frank Wall Street Reform and Consumer Protection

Act, Public Law 111-203, 124 Stat. 1376 (2010). The text of the

Dodd-Frank Act may be accessed at http://www.cftc.gov./

LawRegulation/OTCDERIVATIVES/index.htm.

\2\ Pursuant to section 701 of the Dodd-Frank Act, Title VII may

be cited as the ``Wall Street Transparency and Accountability Act of

2010.''

\3\ 7 U.S.C. 1 et seq.

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The Dodd-Frank Act includes provisions applicable to ``a swap in an

agricultural commodity (as defined by the [CFTC]).'' Neither Congress

nor the CFTC has previously defined ``agricultural commodity'' for

purposes of the CEA or CFTC regulations. On October 26, 2010, the

Commission issued a notice of proposed rulemaking requesting comment on

a proposed definition of agricultural commodity (the ``NPRM'').\4\

After reviewing the comments submitted in response to the proposed

definition,\5\ the Commission has determined to issue this final

definition in essentially the same form as originally proposed, subject

to a minor revision to the commodity-based index provision, for

purposes of the CEA and Commission regulations.

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\4\ 75 FR 65586, Oct. 26, 2010.

\5\ Those comments are available on the Commission's Web site

at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=868.

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[[Page 41049]]

A. Statutory Framework--``Agricultural Commodity''

1. Pre Dodd-Frank Act

For a detailed discussion of the pre Dodd-Frank statutory history

relating to the term agricultural commodity, please review the NPRM at

75 FR 65586-65587.

2. The Dodd-Frank Act

In addition to deleting two existing CEA provisions that referenced

agricultural commodities,\6\ the Dodd-Frank Act contains several new

provisions relating to agricultural commodities. Section 721(a)(21) of

the Dodd-Frank Act adds a new section 1a(47) to the CEA defining the

term ``swap.'' As part of the definition, clause (iii) of section

1a(47)(A) provides that a swap includes ``any agreement, contract, or

transaction commonly known as * * * an agricultural swap. * * *'' \7\

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\6\ Pre Dodd Frank CEA sections 2(g) and 5a(b)(2)(F).

\7\ See new CEA section 1a(47)(A)(iii)(XX) as added by section

721(a)(21) of the Dodd-Frank Act.

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Section 723(c)(3)(A) of the Dodd-Frank Act, which is a free-

standing provision that does not amend the CEA, contains a general rule

whereby, except as provided in section 723(c)(3)(B), ``no person shall

offer to enter into, enter into, or confirm the execution of, any swap

in an agricultural commodity (as defined by the [CFTC]).'' Section

723(c)(3)(B) provides that a swap in an agricultural commodity may be

permitted pursuant to the Commission's exemptive authority under CEA

section 4(c), ``or any rule, regulation, or order issued thereunder

(including any rule, regulation, or order in effect as of the date of

enactment of this Act) by the [CFTC] to allow swaps under such terms

and conditions as the Commission shall prescribe.''

Section 733 of the Dodd-Frank Act adds a new section 5h to the CEA

that governs the registration and regulation of swap execution

facilities. New CEA section 5h(b)(2) provides that a swap execution

facility ``may not list for trading or confirm the execution of any

swap in an agricultural commodity (as defined by the Commission) except

pursuant to a rule or regulation of the Commission allowing the swap

under such terms and conditions as the Commission shall prescribe.''

Section 737 of the Dodd-Frank Act amends CEA section 4a and

specifically directs the Commission to adopt position limits for

futures, DCM-traded options, and swaps that are economically equivalent

to futures and exchange-traded options for physical commodities other

than excluded commodities--that is, exempt and agricultural

commodities. Section 737 also sets timeframes for the adoption of such

position limits for both exempt and agricultural commodities.

B. Regulatory Framework--``Agricultural Commodity''

For a detailed discussion of the history surrounding the

Commission's regulatory framework related to the term agricultural

commodity, please review the NPRM at 75 FR 65588-65589. Under current

regulations, the term agricultural commodity is significant primarily

for parts 32 and 35.\8\ The final definition is not anticipated to have

any significant substantive impact outside of those rules.

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\8\ 17 CFR part 32 and 17 CFR part 35.

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In relation to parts 32 (dealing with commodity options) and 35

(dealing with swaps), the Commission, in a separate proposed

rulemaking, has proposed (1) to treat all commodity options that fall

within the Dodd-Frank definition of swap (including options on either

agricultural or non-agricultural commodities) the same as any other

swap, thereby doing away with the need to distinguish between an

agricultural commodity and any other type of commodity for the purpose

of identifying the applicable options rules, and (2) to treat swaps in

an agricultural commodity the same as any other swap, thereby doing

away with the need to distinguish between an agricultural commodity and

any other type of commodity for the purpose of identifying the

applicable swaps rules.\9\ The definition will also inform the

Commission's planned rulemaking addressing speculative position limits

on both agricultural and exempt commodities.\10\

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\9\ The proposal to treat agricultural swaps the same as swaps

in other commodities was issued following an advance notice of

proposed rulemaking (``ANPRM'') that specifically asked whether

swaps in an agricultural commodity should be treated any differently

than other swaps. See 75 FR 59666, Sept. 28, 2010. The overwhelming

majority of the comments supported adopting a rule that would treat

swaps in an agricultural commodity the same as all other swaps, and

the proposed agricultural swaps rules that followed the ANPRM so

provide. (See: Commodity Options and Agricultural Swaps, 76 FR 6095,

February 3, 2011). If the final agricultural swaps rules should

reverse course and prohibit or limit agricultural swaps, the

Commission will take appropriate action to address any impact such

rule change might have with respect to the definition set out

herein.

\10\ See Sec. 737(a) of the Dodd-Frank Act; see also Position

Limits for Derivatives, 76 FR 4752, Jan. 26, 2011.

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Part II--Summary of Comments; Commission Response to Comments

As noted above, on October 26, 2010 the Commission published for

comment a notice of proposed rulemaking that proposed a definition of

``agricultural commodity'' for purposes of the Commodity Exchange Act

and Commission regulations.\11\ The NPRM proposed a four category

definition, including:

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\11\ 75 FR 65586, Oct. 26, 2010.

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1. The enumerated commodities listed in section 1a of the CEA,

including such things as wheat, cotton, corn, the soybean complex,

livestock, etc.;

2. A general operational definition that covers: ``All other

commodities that are, or once were, or are derived from, living

organisms, including plant, animal and aquatic life, which are

generally fungible, within their respective classes, and are used

primarily for human food, shelter, animal feed, or natural fiber;''

3. A catch-all category for commodities that would generally be

recognized as agricultural in nature, but which do not fit within the

general operational definition. In addition to the specified

commodities named in category three (tobacco and the products of

horticulture), category three would also include other commodities

that, in future, would be classified as ``agricultural commodities'' as

a result of Commission action: ``Tobacco, products of horticulture, and

such other commodities used or consumed by animals or humans as the

Commission may by rule, regulation, or order designate after notice and

opportunity for hearing;'' and

4. Finally, a provision applicable to: ``Commodity-based contracts

based wholly or principally on a single underlying agricultural

commodity.''

In response to the NPRM, the Commission received twelve formal

comment letters \12\ representing a broad range of interests, including

producers, merchants, swap dealers, commodity funds, futures industry

organizations, academics, and policy organizations. In particular,

comment letters were received from the following persons or entities:

The Agricultural Swaps Working Group (``Ag Swaps Working Group''),

comprised of financial institutions that provide risk management and

investment products

[[Page 41050]]

to agricultural end users; BOK Financial (``BOK''); Better Markets,

Inc. (``Better Markets''); Commodity Markets Council (``CMC''); Dairy

Farmers of America, Inc. (``DFA''); the Gavilon Group, LLC

(``Gavilon''); Institute for Agriculture and Trade Policy (``IATP'');

CME Group, Inc. (``CME Group''); Minneapolis Grain Exchange (``MGEX'');

National Council of Farmer Cooperatives (``NCFC''); National Grain and

Feed Association (``NGFA''); and Michael Greenberger (``Professor

Greenberger''), a professor from the University of Maryland Law School.

In addition, on May 4, 2011, the Commission re-opened the comment

period on several of the Dodd-Frank rulemakings, including the proposed

agricultural commodity definition, to June 3, 2011.\13\ Of the

additional comments received, three specifically addressed substantive

concerns related to the proposed agricultural commodity definition--one

letter from Chris Barnard, discussed below; one letter from the

National Milk Producers Federation (``NMPF''), generally supporting the

proposed definition; and one letter from MGEX, reiterating the

arguments made in its earlier comments.\14\

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\12\ The comment file also includes records of discussions with

three external parties (Land O'Lakes, Inc., a mixed group of

agricultural and academic interests, and an agricultural risk

manager from Kansas). At those meetings and/or phone calls, issues

tangential to the agricultural commodity definition rulemaking were

discussed between visitors and Commission representatives.

\13\ See 76 FR 25274, May 4, 2011.

\14\ Illustrated by the following quote from the NMPF letter,

the majority of the comments filed for the June 3, 2011 deadline

addressed issues outside of the scope of the agricultural commodity

definition; e.g. end user concerns, cooperative associations, and

the general regulatory regime for swaps:

NMPF agrees that the proposed rule provides a reasonable

definition of ``agricultural commodity'', with respect to milk,

dairy products, and common dairy feedstuffs.

However, this agreement must be seen in the context of our

concerns about the potential over-regulation of farmers, farmer

cooperative associations, and other commercial end users, including

small and limited resource farmers.

See letter from NMPF.

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With minor variations discussed below, the majority of commenters

supported the definition of agricultural commodity as proposed. The

following statement from the NGFA is representative:

The NGFA is supportive of the Commission's efforts to define the

term ``agricultural commodity'' for purposes of implementing

provisions of the Dodd-Frank Wall Street Reform and Consumer

Protection Act. Generally, we believe the proposed rule takes a

straightforward and common-sense approach to the issue and we have

no current objection to the categorization of various agricultural

commodities as detailed in the proposed rule.

In response to the Commission's questions, the NGFA at this time

is not aware of additional commodities that should be included in

the definition, though they may not fit neatly into the proposed

rule; nor are we aware of commodities that do fit the proposed

definition but should not be included. However, to accommodate

situations that could arise in the future as new products are

developed, the NGFA agrees that it would be prudent for the

Commission to maintain some flexibility to consider or reconsider

the status of any particular commodity as questions may arise in the

context of specific markets or transactions.\15\

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\15\ See letter from NGFA.

Many of the commenters specifically supported the fact that the

proposed definition excludes biofuels.\16\ In addition, several

commenters further noted the appropriateness of the definition in a

regulatory regime where the Commission may decide to treat agricultural

swaps as it does all other swaps.\17\

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\16\ See, e.g., letters from Gavilon, IATP, and the Ag Swaps

Working Group.

\17\ In fact, the Commission has recently proposed to treat

agricultural swaps the same as any other swap: See Commodity Options

and Agricultural Swaps, 75 FR 6095, Feb. 3, 2011.

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General support for the proposed definition; request for

clarification on category two. Several commenters offered their general

support for the definition as proposed, requesting only that the

Commission clarify in any final rule that the second category of the

agricultural commodity definition is self-effectuating and will

encompass commodities that are now, or in the future may be, subject to

swaps, futures, and options trading, without the need for additional

CFTC action.\18\ These commenters suggested that such clarification

would be consistent with Congress' definition of ``commodity'' in the

CEA, which includes certain enumerated commodities and ``all other

goods and articles, * * * and all services, rights, and interests in

which contracts for future delivery are presently or in the future

dealt in.'' \19\

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\18\ See, e.g., letters from CME Group, the Ag Swap Working

Group, Gavilon, and DFA.

\19\ See CEA section 1a(4).

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In response to this request, the Commission wishes to clarify that

the general operational definition found in the second category is

self-executing and will encompass commodities that are now, or in the

future may become subject to swaps, futures, and options trading,

without the need for additional CFTC action. In this regard, the rule

defines those commodities that are agricultural commodities. It does

not matter whether futures, swaps, or options are being traded in the

commodity--either now or in the future.

Request for consideration of public comment regarding the

classification of new commodities. Other commenters asked that the

Commission provide a means for the public to comment upon and appeal

any Commission decision to include or exclude a particular commodity

from the list of agricultural commodities under any category of the

definition. As proposed, such a comment and appeal process is

contemplated only for commodities that may fall under category three of

the Commission's definition. In particular, subparagraph three of the

agricultural commodity definition would allow the Commission to

designate any other commodity used or consumed by animals or humans to

be an agricultural commodity ``by rule, regulation or order * * * after

notice and opportunity for hearing.'' \20\ CMC asked for a

clarification or expansion of this process:

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\20\ See NPRM at 75 FR 65586 at 65593, Oct. 26, 2010.

We therefore urge the Commission to provide for an appeals

process for new instruments. To elaborate, we request that a

consistent process and time period be instated for appealing a CFTC

decision to include or exclude a particular commodity from the list

of agricultural commodities. We acknowledge that the CFTC in its

[NPRM] has made a provision for public hearings for Category 3

agricultural commodities, but we request that a process for public

comments and appeals be made broadly available in the context of

including or excluding an agricultural commodity under any category

of the definition.\21\

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\21\ See letter from CMC.

On this topic, NGFA commented that in order to accommodate situations

that could arise in the future as new products are developed, it would

be prudent for the Commission to maintain some flexibility to consider

or reconsider the status of any particular commodity as questions may

arise in the context of specific markets or transactions.

In considering these comments, the Commission has determined that

the proposed definition, in conjunction with the Commission's existing

rules, already accommodates any concerns raised. With respect to

commodities already listed in categories one or two, the NPRM that

preceded these final rules provided an opportunity to question or

challenge the inclusion or exclusion of any commodity listed in those

categories. With respect to commodities not covered by the first two

categories, category three of the proposed definition permits the

Commission to designate any particular commodity as an ``agricultural

commodity,'' but only after notice and an opportunity for hearing.

Therefore, any time the Commission wishes to designate a particular

commodity as an ``agricultural commodity,'' it must

[[Page 41051]]

follow the procedures attendant to a normal notice and comment

rulemaking (i.e., issuing a notice of proposed rulemaking, allowing a

comment period, and then issuing a final rule or order). In addition,

any action by the Commission to remove a commodity from the definition

would constitute a regulatory amendment that would similarly require a

notice and comment rulemaking.

To the extent interested parties want to request that the

Commission amend or add to the definition on their own initiative, they

may submit a petition for issuance, amendment, or repeal of any rule

pursuant to Commission regulation 13.2.

New or innovative commodity products. While generally supportive of

the proposed definition, a comment letter from IATP expressed concern

with respect to the commercial commodification of currently

experimental commodities, ``It perhaps goes without saying that the

modification of traditional commodities by synthetic biology and other

nanotechnologies will pose many and complex regulatory challenges to

protect the public interest, should these commodities be traded under

contracts subject to CFTC rules.''\22\

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\22\ See letter from IATP.

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The Commission believes that categories two and three of the

definition, as proposed, appropriately provide for the inclusion of new

or innovative commodities within the definition of ``agricultural

commodity''--should such a determination become necessary.\23\ These

``new'' commodities will likely fall under category two of the

agricultural commodity definition as being ``used primarily for human

food, shelter, animal feed or natural fiber.'' And if they do not fall

under category two, the Commission may use category three to issue a

rule or order labeling them as agricultural commodities.

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\23\ In this context, the Commission believes that the

definition is appropriately flexible to incorporate food substitutes

and other similar products should there be a need to do so at some

point in the future.

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Commodity-based indexes. Several commenters focused on subparagraph

four of the proposed definition, which would include ``commodity-based

contracts based wholly or principally on a single underlying

agricultural commodity.'' \24\ MGEX commented that subparagraph four

should be withdrawn altogether, arguing that cash-settled and

electronically traded contracts on indexes (such as contracts on MGEX's

various wheat, corn, and soybean cash-bid indexes) should remain

outside of the definition of agricultural commodity.\25\

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\24\ See NPRM at 75 FR 65586 at 65593, Oct. 26, 2010.

\25\ As will be discussed further below, MGEX's comment may be

based in part on confusion in the Commission's wording of

subparagraph four. As proposed, subparagraph four applies to

``commodity-based contracts'' when in fact the wording should have

read ``commodity-based indexes,'' and has been so corrected in the

final rule.

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The NCFC commented that, without information on the practical

effects of using a larger or smaller threshold than the proposed ``more

than 50%'' to define ``principally,'' it supports the more than 50%

level of a single commodity as proposed. However, they suggested future

review of that level if concerns are raised or potential issues need to

be addressed.\26\

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\26\ See letter from NCFC.

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Two commenters, Professor Greenberger and Better Markets, objected

to the fact that the ``based wholly or principally on a single

underlying agricultural commodity'' approach used in the proposed

definition would fail to include indexes that contained several

different agricultural commodities but had no concentration of greater

than 50% of any one commodity. Professor Greenberger argued that, ``The

Commission should include a contract based on an index that includes

agricultural commodities within the definition of agricultural

commodity, so that it may be subject, inter alia, to the later

rulemakings on speculative position limits under [section] 737 of the

Dodd-Frank Act.'' Better Markets expressed the concern that the

proposed definition could enable a person to avoid compliance with

other regulatory provisions specific to agricultural commodities, such

as speculative position limits. As a potential solution, Better Markets

proposed a revision to subparagraph four that would evaluate commodity-

based indexes on a pro-rata basis, with no minimum or maximum

percentage criterion. Under the Better Markets proposal, any contract

on a commodity-based index could be both (1) a contract on agricultural

commodities for that percentage of the index that is based on any

agricultural commodity, and (2) a contract on non-agricultural

commodities for that percentage of the index that is based on any non-

agricultural commodity.\27\ Thus, for example, a person holding a

contract on an index that is equally weighted in corn and soybeans

would be considered to have a position in both corn and soybeans and

this position would be aggregated with other corn and/or soybeans

positions held by that trader for purposes of complying with

speculative position limits applicable to either commodity.

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\27\ Better Markets proposed that subparagraph four read as

follows: ``Commodity-based contracts based on a single underlying

agricultural commodity; provided that contracts based on composite

prices in the form of an index, which composite prices include one

or more agricultural commodities, shall be considered to be one or

more commodity-based contracts pro-rata based on the relevant

weighting of each such single agricultural commodity in the index.''

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Chris Barnard's letter similarly suggested that the Commission

should revise category four to apply to ``commodity-based [indexes]

based wholly or principally on underlying agricultural commodities.''

In considering these comments, the Commission has determined to

refine category four as follows:

(a) In the final rule, the Commission has removed references to

contracts and added references to indexes, confirming that category

four applies to commodity-based indexes, rather than commodity-based

contracts on an index.

(b) In addition to the revisions described in (a), the text of

category four has been revised to include commodity-based indexes

``based wholly or principally on underlying agricultural

commodities''--as opposed to ``based wholly or principally on a single

underlying agricultural commodity.'' As a general matter, the Dodd-

Frank Act gives the Commission the authority to prohibit or otherwise

limit swaps in an agricultural commodity. In the event that the

Commission did take steps to generally prohibit or otherwise limit

swaps in an agricultural commodity, there would be legitimate concern

about the potential proliferation of ``agricultural commodity-based

indexes'' (and contracts thereon) being designed to replicate the

economic terms of otherwise prohibited swaps in an agricultural

commodity.

However, because the Commission has proposed to permit swaps in an

agricultural commodity to transact subject to the same rules applicable

to all other swaps, that concern is almost certainly moot.\28\ There

will be no incentive for regulatory arbitrage as between an

agricultural swap and a swap on an index that is economically

equivalent to an agricultural swap because both transactions would be

subject to the same regulatory scheme. Nonetheless, in response to

certain concerns raised by Professor Greenberger, Better Markets, and

Mr. Barnard, the Commission is expanding the commodity-based index

category of the agricultural commodity definition to

[[Page 41052]]

include not only any index that is concentrated at greater than 50% in

a single agricultural commodity, but also any index concentrated at

greater than 50% in agricultural commodities generally. Thus, for

example, an index composed of 25% each, wheat, corn, soybeans, and gold

would fall within the definition because more than 50% of that index is

composed of agricultural commodities, and any contract on that index

would be a contract on an agricultural commodity.

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\28\ See footnote 9, above.

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(c) As described above, the Better Markets comment letter also

raised a related concern about the potential for avoiding position

limits by using swaps on an index as an alternative to swaps on an

agricultural commodity. Professor Greenberger expanded the concern,

arguing that any multiple commodity index that references any farm

product should be included in the definition of agricultural commodity.

The Commission has considered these comments and notes the following:

(1) As proposed,\29\ position limits would be applied on a contract

by contract basis. That is, the inquiry into whether an index is an

``agricultural commodity'' is not relevant, because there are no

position limits that would apply broadly to a contract on an

``agricultural commodity.'' Rather, the proposed position limits apply

to positions in specific contracts, known as reference contracts (for

example, the CBOT corn contract, the CBOT wheat contract, etc.),

options thereon, and swaps economically equivalent thereto. The

relevant inquiry becomes whether a contract on an index (or pro rata

portion thereof) is economically equivalent to a reference contract, as

defined in the proposed position limit rules, and not whether an index

is or is not an agricultural commodity.

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\29\ See Position Limits for Derivatives, 76 FR 4752, Jan. 26,

2011.

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(2) The position limit rules directly address contracts on a

commodity-based index that would be used in an attempt to circumvent

the position limit rules. Specifically, the proposed position limit

rules provide that ``a commodity index contract that incorporates the

price of a commodity underlying a referenced contract's commodity,

which is used to circumvent speculative position limits, shall be

considered to be a referenced contract for the purpose of applying the

[proposed position limit rules].'' \30\

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\30\ Ibid.

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(d) As indicated above, MGEX favored withdrawing category four

altogether, arguing that cash-settled and electronically traded

contracts on indexes (such as contracts on MGEX's various wheat, corn,

and soybean cash-bid indexes) should remain outside of the definition

of agricultural commodity. In response, the Commission initially notes

that Dodd-Frank directs the Commission to adopt a definition of

agricultural commodity. Pursuant to section 723(c)(3) of the Dodd-Frank

Act, swaps in an agricultural commodity (as defined by the Commission)

are prohibited unless permitted by a CEA section 4(c) exemption.

However, because the agricultural swaps proposal \31\ will, if adopted

as proposed, permit agricultural swaps to transact subject to the same

rules applicable to any other swap, it appears that the practical

effect of being labeled an agricultural commodity (or avoiding the

label of agricultural commodity) will be immaterial.

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\31\ 76 FR 6095, Feb. 3, 2011.

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Still, the Commission will retain the authority, pursuant to

section 723(c)(3) of the Dodd-Frank Act, to revise or amend the

agricultural swaps rules and to place further limitations or

restrictions on swaps in an agricultural commodity in the future.\32\

For that reason, the Commission is taking the step now, via the

agricultural commodity definition, to remove any incentive for

regulatory gaming that could result from being able to avoid the label

of agricultural commodity by, for example, creating indexes, and then

executing contracts thereon, that act as the functional or economic

equivalent of otherwise limited or prohibited swaps on an agricultural

commodity. Accordingly, the Commission is retaining the commodity-based

index component in its agricultural commodity definition, as revised

herein.

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\32\ Note that the authority under section 723(c)(3) only

applies to swaps in an agricultural commodity and does not extend to

futures on an agricultural commodity.

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Customer hedging. BOK submitted a comment letter requesting an

exemption from section 723(c)(3)(A) of the Dodd-Frank Act \33\ for

transactions that hedge customer positions, irrespective of whether the

underlying commodity is agricultural or non-agricultural. That is,

BOK's letter requests that the Commission provide a confirmation that

hedging transactions involving agricultural commodities will not be

subject to the Dodd-Frank Act's general prohibition of swaps in an

agricultural commodity. The Commission believes that the concerns

raised by BOK's letter have generally been addressed in the

Commission's proposed rules for agricultural swaps and commodity

options. Those rules would treat agricultural swaps, whether they

constitute hedging or speculation, the same as other swaps. Thus,

hedging transactions involving agricultural swaps would be subject to

the same standards as hedging transactions involving other

commodities.\34\

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\33\ Swaps in an agricultural commodity, other than those

currently permitted (for example, pursuant to part 35), are

generally prohibited under section 723(c)(3)(A) of the Dodd-Frank

Act, which is the provision cited by BOK. However, section

723(c)(3)(B) provides that the Commission, using its CEA section

4(c) authority, may expand the universe of agricultural swaps that

are permitted to trade. The Commission's recent agricultural swaps

and commodity options proposal would permit agricultural swaps

transactions to continue subject to all rules otherwise applicable

to any other swap. See 75 FR 6095, Feb. 3, 2011.

\34\ See Commodity Options and Agricultural Swaps, 76 FR 6095,

Feb. 3, 2011.

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Category two determinations. MGEX also commented briefly on the

Commission's explanatory example in the NPRM regarding the phrase

``used primarily'' in category two. Category two covers: ``All other

commodities that are, or once were, or are derived from, living

organisms, including plant, animal and aquatic life, which are

generally fungible, within their respective classes, and are used

primarily for human food, shelter, animal feed, or natural fiber.'' The

NPRM explained that the phrase ``used primarily'' means that if ``50%

of the peaches harvested, plus one, are used for human food'' then

peaches are an agricultural commodity. MGEX commented that this

definition could lead to a slippery slope of managing the use for each

crop and that the definition did not appear to provide for legal

certainty.

The Commission has considered MGEX's comment and determined to

retain category two as proposed, including the above-quoted explanation

of the phrase ``used primarily.'' Initially, and as noted above, the

difference between being labeled an agricultural commodity and any

other type of commodity is likely to have minimal or no impact because:

(1) The Commission has proposed rules to treat agricultural swaps the

same as any other swap; and (2) the position limit rules proposed by

the Commission would apply on a contract-by-contract basis and do not

key on whether or not a particular commodity is agricultural.

Beyond that, the Commission is not aware of, and MGEX did not

identify, any actual commodity where the ``amount used for human food,

shelter, animal feed, or natural fiber'' is so close to 50% as to

present a danger of being gamed for the purpose of avoiding the

application of the agricultural commodity definition. The point of the

[[Page 41053]]

Commission's proposed definition and accompanying explanation was to

draw a reasonable and common sense line between that which is

agricultural and that which is not. To the extent the prospect of

gaming this aspect of category two of the agricultural commodity

definition arises in the future, the Commission also points out that it

may use category three of the definition to declare any particular

commodity to be agricultural by issuing a rule, regulation, or order so

designating ``after notice and opportunity for hearing.''

Effective date. The final question facing the Commission was:

``What should be the effective date of the final definition?'' \35\ CME

Group noted that ``[o]nce adopted, the definition will also clarify the

scope of the exemptions under CEA sections 2(g) and 2(h)--at least

until Dodd-Frank takes effect and eliminates these exemptions.''

However, any clarification needed as between the agricultural commodity

definition and pre Dodd-Frank CEA provisions is being addressed in the

Commission's Dodd-Frank transition period relief.\36\ Beyond concerns

related to pre Dodd-Frank CEA provisions, NCFC noted that it was

``unaware of any reason not to make the definition of agricultural

commodity effective upon the publication of the final rule.''

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\35\ The NPRM specifically noted:

[I]f the definition of an agricultural commodity is made

effective upon the publication of a final rule, it would provide

clarity as to what swaps are or are not eligible for the exemptions

found in current CEA [sections] 2(g) and 2(h) until the point at

which their repeal by the Dodd-Frank Act becomes effective. Is there

any reason not to make the definition of agricultural commodity

effective upon the publication of a final rule? Are there swaps

currently being transacted under [section] 2(g) or [section] 2(h)

that would be considered transactions in an agricultural commodity

(and thus potentially, temporarily illegal) under the definition

proposed herein? If so, should the effective date of the definition

be postponed until the repeal of current CEA [sections] 2(g) and

2(h), for all purposes other than for the setting of speculative

position limits, which will become effective prior to the repeal?

See NPRM at 65592.

\36\ See Effective Date for Swap Regulation, 76 FR 35372, June

17, 2011.

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Therefore, the Commission has determined that the effective date of

the final agricultural commodity definition shall be sixty days after

the publication of this final rule, as required by the Dodd-Frank Act.

By providing that the definition becomes effective as early as is

allowed by the Dodd-Frank Act, the Commission intends to provide legal

certainty for market participants as they plan for the regulatory

regime that will follow the Dodd-Frank transition relief.

Part III--Explanation of the Definition

A. Terms of the Final Definition

Except for the revisions to category four (explained more fully

below), the terms of the final definition are the same as the terms of

the definition as proposed in the NPRM.

B. Explaining the Definition

Category One--Enumerated Agricultural Commodities

Category one includes the ``enumerated agricultural commodities''

specified in current section 1a(4) of the Act (renumbered as section

1a(9) under the Dodd-Frank Act). While there is considerable overlap

between categories one and two, category one includes some commodities

that would not qualify under category two. For example, ``fats and

oils'' would include plant-based oils, such as tung oil and linseed

oil, which are used solely for industrial purposes (and thus would not

fall within category two). Section 1a(4)'s reference to ``oils'' would

not, however, extend to petroleum products.\37\

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\37\ Petroleum products clearly would not fall within the

enumerated commodities. ``These itemized commodities are

agricultural in nature.'' Philip McBride Johnson, Commodities

Regulation, Sec. 1.01, p. 3 (1982). The Commission has never even

considered treating petroleum products as agricultural commodities.

Nor would petroleum products fall within the second category. Even

though they could be viewed as derived from living organisms--albeit

organisms that lived millions of years ago--such products would not

qualify under the ``used primarily for human food, shelter, animal

feed or natural fiber'' standard of category two.

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Category Two: Operative Definition of Agricultural Commodities

As a general matter, Category 2 seeks to draw a line between

products derived from living organisms that are used for human food,

shelter, animal feed or natural fiber (covered by the definition) and

products that are produced through processing plant or animal-based

inputs to create products largely used as industrial inputs (outside

the definition). This general operational definition is self-executing

and will encompass commodities that are now or in the future may become

subject to swaps, futures, and options trading, without the need for

additional CFTC action. In this regard, the rule defines those

commodities that are agricultural commodities. It does not matter

whether futures, swaps, or options are being traded in the commodity--

either now or in the future. Thus, a commodity evaluated under category

two either is or is not an agricultural commodity regardless of its

trading status.

Some of the terms used in describing the second category require

further clarification, particularly the terms, ``generally fungible,''

``used primarily,'' ``human food'' and ``natural fiber.''

``Generally fungible''--means substitutable or interchangeable

within general classes. For example, apples, coffee beans, and cheese

are generally fungible within general classes, even though there are

various grades and types, and so they would be agricultural

commodities. On the other hand, commodities that have been processed

and have taken on a unique identity would not be generally fungible.

Thus, while flax or mohair are generally fungible natural fibers, lace

and linen garments made from flax, or sweaters made from mohair, are

not generally fungible and would not be agricultural commodities under

category two.

``Used primarily''--means any amount of usage over 50%. For

example, if 50% of the peaches harvested, plus one, are used for human

food, then peaches fall within category two.

``Human food''--includes drink. Thus fruit juice, wine, and beer

are ``food'' for purposes of the definition of ``agricultural

commodity.''

``Natural fiber''--means any naturally occurring fiber that is

capable of being spun into a yarn or made into a fabric by bonding or

by interlacing in a variety of methods including weaving, knitting,

braiding, felting, twisting, or webbing, and which is the basic

structural element of textile products.

Based on the foregoing, therefore, category two would include such

products as: Fruits and fruit juices; vegetables and edible vegetable

products; edible products of enumerated commodities, such as wheat

flour and corn meal; poultry; milk and milk products, including cheese,

nonfat dry milk and dry whey; distiller's dried grain; eggs; cocoa

beans, cocoa butter and cocoa; coffee beans and ground coffee;

sugarcane, sugar beets, beet pulp (used as animal feed), raw sugar,

molasses and refined sugar; honey; beer and wine; shrimp; and silk,

flax and mohair.

Category two would also include stud lumber, plywood, strand board

and structural panels because they are derived from living organisms

(trees), are generally fungible (e.g., random length 2 x 4s and 4 x 8

standard sheets of plywood) and are used primarily for human shelter--

i.e., in the construction of dwellings. Category two would not,

however, include industrial inputs such as wood pulp, paper or

cardboard, nor would it include raw rubber, turpentine or rosin.

Although derived from living organisms--trees--and generally fungible,

none of these products are

[[Page 41054]]

used primarily for human food, shelter, animal feed or natural fibers.

On the other hand, maple syrup and maple sugar, also derived from

trees, would be ``agricultural commodities.'' Rayon, which is a fiber

derived from trees or other plants, falls out of category two because

it is not a natural fiber--i.e., it must be chemically processed from

cellulose before it becomes fiber.

Category two would include high fructose corn syrup, but not corn-

based products such as polylactic acid (a corn derivative used in

biodegradable packaging), butanol (a chemical derived from cornstarch

and used in plasticizers, resins, and brake fluid) or other plant-based

industrial products. Category two would include pure ethanol, which is

derived from living organisms (corn and other plants), is generally

fungible, and may be used for human food (as an ingredient of alcoholic

beverages). However, it would not include denatured ethanol, which is

used for fuel and for other industrial uses, because denatured ethanol

cannot be used for human food. Likewise, neither would Category 2

include other plant or animal based renewable fuels, such as methane or

biodiesel. Fertilizer and other agricultural chemicals, even though

they are used almost exclusively in agriculture, would not fall within

the definition because they would not fit into the food, shelter,

animal feed, or natural fiber category.

Category Three--Other Agricultural Commodities

Category three would include commodities that do not readily fit

into the first two categories, but would nevertheless be widely

recognized as commodities of an agricultural nature. Such commodities

would include, for example, tobacco, products of horticulture (e.g.,

ornamental plants), and such other commodities used or consumed by

animals or humans as the Commission may by rule, regulation or order

designate after notice and opportunity for hearing. The Commission

would determine the status of any such other commodities for purposes

of the Act and CFTC regulations on a case-by-case basis as questions

arise in the context of specific markets or transactions.

Category Four--Commodity-Based Indexes

The term, ``agricultural commodity,'' also includes a commodity-

based index based wholly or principally on underlying agricultural

commodities. Thus, for example, the Minneapolis Grain Exchange

(``MGEX'') wheat, corn and soybean price index contracts \38\ would be

considered contracts on agricultural commodities--that is the

underlying single commodity index is an agricultural commodity. Also,

any index made up of more than 50% of agricultural commodities, since

it is based principally on underlying agricultural commodities, would

be considered an agricultural commodity for purposes of including it

within the agricultural commodity definition. Thus, for example, a

commodity-based index composed of 20% each, wheat, corn, soybeans,

crude oil and gold, since it is composed of more than 50% agricultural

commodities, would be an agricultural commodity. Therefore, swaps on

such an index would be subject to special rules (if any) that might be

adopted for agricultural commodity swaps.\39\

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\38\ The MGEX agricultural index products are currently

available for corn, soybeans, and various types of wheat. These

index products are financially settled to a spot index of country

origin pricing as calculated by a firm called Data Transmission

Network (``DTN''). Cash settlement is based upon the simple average

of the spot prices published on the last three trading days of the

settlement month.

\39\ See Commodity Options and Agricultural Swaps, 75 FR 6095,

Feb. 3, 2011.

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The definition of an ``excluded commodity'' in current CEA section

1a(13)(iii) \40\ could be read to include any index of agricultural

commodities. That definition provides that ``excluded commodity''

means, among other things, ``any economic or commercial index based on

prices, rates, values, or levels that are not within the control of any

party to the relevant contract, agreement, or transaction.'' However,

such a reading is inconsistent with the requirement in Dodd-Frank that

swaps in agricultural commodities be permitted only pursuant to a

section 4(c) order of the Commission. For example, a swap contract

based on a price index of solely wheat should reasonably be considered

as a swap in an agricultural commodity. Applying a mechanical

interpretation of the definition of excluded commodity could permit

``gaming'' by allowing an index based principally, or even

overwhelmingly, on agricultural commodities to evade any potential

limitations on trading agricultural swaps that are found in the Dodd-

Frank Act. For this reason, the definition issued herein would include

an index based wholly or principally on underlying agricultural

commodities.

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\40\ New section 1a (19)(iii) as renumbered under the Dodd-Frank

Act.

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Onions

Onions present a unique case in that onions are the only

agricultural product specifically excluded from the enumerated

commodities list in current CEA section 1a(4). Also, Public Law 85-839

prohibits the trading of onion futures on any board of trade in the

United States.\41\ Nothing in the definition issued herein affects the

prohibition on onion futures trading.

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\41\ 7 U.S.C. 13-1.

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In defining an agricultural commodity, given that term's statutory

history, as well as the Act's grammatical construction, it would appear

that ``agricultural commodity'' is a subset of ``commodity'' and, since

onions are excluded from the definition of ``commodity,'' onions cannot

be considered an ``agricultural commodity.'' However, under the Dodd-

Frank Act, the definition of ``swap'' in new section 1a(47) of the CEA

is not limited to transactions based upon ``commodities'' as defined in

current section 1a(4) of the Act. Therefore, under the CEA as amended

by Dodd-Frank, a swap may be based upon an item that is not defined as

a ``commodity.'' Thus, onion swaps would seem to be permissible, but

would not be considered to be swaps in an ``agricultural commodity''

under the definition contained herein.

C. Effects of Applying the Definition

It is also important to consider the uses to which the definition

will be put--i.e., what would be the practical effect of a commodity

being classified as an ``agricultural commodity'' under the definition

contained herein? One effect is that the commodity would be covered by

any rules the Commission ultimately adopts for agricultural swaps. If,

based on the current commodity options and agricultural swaps

proposal,\42\ it is determined that agricultural swaps should be

treated the same as other physical commodity swaps, the definition

should have no effect in the agricultural swaps context.

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\42\ See Commodity Options and Agricultural Swaps, 76 FR 6095,

Feb. 3, 2011.

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The other significant effect of a commodity being classified as an

``agricultural commodity'' is that the commodity would be subject to

the timeframes for speculative position limits for agricultural

commodities,\43\ rather than the timeframes for speculative limits for

exempt commodities. As discussed above, the classification of a given

commodity as

[[Page 41055]]

``agricultural'' vs. ``exempt'' should have no long-term practical

effect on the commodity or how it is traded in the speculative limits

context because: (1) The definition will only apply to commodities that

are the subject of actual swaps or futures trading; and (2) the

speculative limits for any such commodities, as proposed, will be based

not on any general across-the-board definition or principle, but on the

individual characteristics of each commodity, its swaps/futures market,

and its underlying cash market.\44\

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\43\ Pursuant to section 737 of the Dodd-Frank Act, the

Commission is required to adopt speculative position limits for

agricultural commodities.

\44\ See Position Limits for Derivatives, 76 FR 4752, Jan. 26,

2011.

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Part IV--Related Matters

A. Paperwork Reduction Act

The final rule will not impose any new recordkeeping or information

collection requirements, or other collections of information that

require approval of the Office of Management and Budget under the

Paperwork Reduction Act.\45\ In the proposed rule, the Commission

invited public comment on the accuracy of its estimate that no

additional recordkeeping or information collection requirements or

changes to existing collection requirements would result from the

proposed rule. The Commission received no comments on the accuracy of

its estimate.

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\45\ 44 U.S.C. 3501 et seq.

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B. Cost Benefit Considerations

Section 15(a) of the CEA requires the Commission to consider the

costs and benefits of its actions before issuing new regulations under

the Act. Section 15(a) does not require the Commission to quantify the

costs and benefits of new regulations or to determine whether the

benefits of adopted regulations outweigh their costs. Rather, section

15(a) requires the Commission to consider the costs and benefits of the

subject regulations in light of five broad areas of market and public

concern: (1) Protection of market participants and the public; (2)

market efficiency, competitiveness, and financial integrity; (3) price

discovery; (4) sound risk management practices; and (5) other public

interest considerations. The Commission may, in its discretion, give

greater weight to any one of the five enumerated areas of concern and

may, in its discretion, determine that, not withstanding its costs, a

particular regulation is necessary or appropriate to protect the public

interest or to effectuate any of the provisions or accomplish any of

the purposes of the CEA.

The agricultural commodity definition is not expected to impose any

significant costs on industry participants. In addition, we believe

that public interest considerations required by CEA section 15(a) weigh

strongly in favor of adopting and issuing the agricultural commodity

definition. The public interest benefit is that the definition provides

legal certainty for indentifying those commodities that are

agricultural commodities--and which may be the subject of a ``swap in

an agricultural commodity (as defined by the [CFTC]).'' See Dodd-Frank

section 723(c)(3).\46\ And as stated in the NPRM, defining an

agricultural commodity for purposes of the CEA would seem to have

limited immediate practical effects. The NPRM noted that the definition

will be necessary for other substantive rulemakings, such as the

timeframes for setting speculative position limits for exempt and

agricultural commodities under section 737 of the Dodd-Frank Act and

determining the permissibility of trading agricultural swaps under

section 723(c)(3) and section 733 of the Dodd-Frank Act. Those other

rulemakings were discussed in the original cost benefit analysis in the

NPRM. As those rules have now been proposed, the respective costs and

benefits of those rules are discussed in those proposed rules.\47\

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\46\ The Commission views this language as a Congressional

directive to provide a formal definition of the term ``agricultural

commodity,'' and by issuing this definition, the Commission is

following that directive.

\47\ See Position Limits for Derivatives, 76 FR 4752, Jan. 26,

2011, and Commodity Options and Agricultural Swaps, 76 FR 6095, Feb.

3, 2011.

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Regarding comments received concerning costs and benefits,

Professor Greenberger stressed that the cost benefit analysis should

concentrate on protecting the public interest. The professor noted that

reasonable food prices are in the public interest and expressed his

view that speculative position limits are an effective tool to curb

excessive speculation that can artificially raise food prices.

Professor Greenberger argued that any multiple commodity index that

references any farm product should be included in the definition of

agricultural commodity. Much like Professor Greenberger, IATP believed

that public interest considerations, including food security, should be

paramount in the cost benefit analysis. As noted in the summary of

comments above, the proposed position limits rulemaking contains a

provision designed to prevent ``gaming'' of speculative position limits

in relation to indexes, including indexes with agricultural components.

In addition, this final rule includes a revised commodity-based index

provision that would include any index made up of more than 50% of

agricultural commodities in the agricultural commodity definition. In

contrast, the proposed rule would only have included an index made up

of more than 50% of a single agricultural commodity.

The Commission also notes that category three of the definition,

which permits the Commission to designate new agricultural commodities

after a notice and comment period, is designed to provide an

appropriate level of flexibility for the Commission as unforeseen

developments and challenges emerge in relation to agricultural

commodities.

The Ag Swaps Working Group, Gavilon, DFA and the CME Group

commented that clarifying that the general operational definition in

the second category of the agricultural commodity definition is self-

executing would increase legal certainty. The Ag Swaps Working Group

and DFA added that such a clarification would be in the public

interest. As noted in the summary of comments above, the Commission has

made such a clarification.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA'') \48\ requires that

agencies consider whether the rules they propose will have a

significant economic impact on a substantial number of small entities

and, if so, provide a regulatory flexibility analysis respecting the

impact. The rules contained herein provide a definition that will

largely be used in other rulemakings and which, by itself, imposes no

significant new regulatory requirements. Accordingly, the Chairman, on

behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b)

that the rules will not have a significant impact on a substantial

number of small entities.

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\48\ 5 U.S.C. 601 et seq.

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List of Subjects in 17 CFR Part 1

Definitions, Agriculture, Agricultural commodity.

In consideration of the foregoing, and pursuant to the authority

contained in the Commodity Exchange Act and, in particular, sections

2(a)(1), 5h, and 8a thereof, 7 U.S.C. 2, 7b-3, and 12a, and pursuant to

the authority contained in section 723(c)(3) of the Dodd-Frank Wall

Street Reform and Consumer Protection Act, Public Law 111-203, 124

Stat. 1376 (2010), the Commission

[[Page 41056]]

hereby amends Chapter 1 of Title 17 of the Code of Federal Regulations

as follows:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

0

1. The authority citation for Part 1 is revised to read as follows:

Authority: 7 U.S.C. 1a, 2, 5, 6, 6a-6p, 7, 7a, 7b, 7b-3, 8, 9,

12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23 and 24, unless

otherwise noted.

0

2. Section 1.3 is amended by adding paragraph (zz) to read as follows:

Sec. 1.3 Definitions.

* * * * *

(zz) Agricultural commodity. This term means:

(1) The following commodities specifically enumerated in the

definition of a ``commodity'' found in section 1a of the Act: Wheat,

cotton, rice, corn, oats, barley, rye, flaxseed, grain sorghums, mill

feeds, butter, eggs, Solanum tuberosum (Irish potatoes), wool, wool

tops, fats and oils (including lard, tallow, cottonseed oil, peanut

oil, soybean oil and all other fats and oils), cottonseed meal,

cottonseed, peanuts, soybeans, soybean meal, livestock, livestock

products, and frozen concentrated orange juice, but not onions;

(2) All other commodities that are, or once were, or are derived

from, living organisms, including plant, animal and aquatic life, which

are generally fungible, within their respective classes, and are used

primarily for human food, shelter, animal feed or natural fiber;

(3) Tobacco, products of horticulture, and such other commodities

used or consumed by animals or humans as the Commission may by rule,

regulation or order designate after notice and opportunity for hearing;

and

(4) Commodity-based indexes based wholly or principally on

underlying agricultural commodities.

* * * * *

Issued in Washington, DC, on July 7, 2011, by the Commission.

David A. Stawick,

Secretary of the Commission.

Appendices to Agricultural Commodity Definition--Commission Voting

Summary and Statements of Commissioners

Note: The following appendices will not appear in the Code of

Federal Regulations

Appendix 1--Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Dunn,

Sommers, O'Malia and Chilton voted in the affirmative; no

Commissioner voted in the negative

Appendix 2--Statement of Chairman Gary Gensler

I support the final rulemaking that defines the term,

``agricultural commodity.'' The Dodd-Frank Act requires that

agricultural commodities be defined. In a separate rulemaking, the

Commission will determine the requirements that apply to swaps on

agricultural commodities.

[FR Doc. 2011-17626 Filed 7-12-11; 8:45 am]

BILLING CODE P

Last Updated: July 13, 2011