2010-26912

FR Doc 2010-26912[Federal Register: October 27, 2010 (Volume 75, Number 207)]

[Proposed Rules]

[Page 66014-66018]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27oc10-16]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 160

RIN 3038-AD13

Privacy of Consumer Financial Information; Conforming Amendments

Under Dodd-Frank Act

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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

``CFTC'') is proposing to amend its rules under part 160 of its

Regulations to implement new statutory provisions enacted by Titles VII

and X of the Dodd-Frank Wall Street Reform and Consumer Protection Act

(``Dodd-Frank Act''). Section 1093 of the Dodd-Frank Act provides for

certain amendments to Title V of the Gramm-Leach-Bliley Act (``GLB

Act'')--which sets forth certain protections for the privacy of

consumer financial information--affirming the Commission's jurisdiction

in this area. This proposal broadens the scope of Part 160 to cover two

new entities created by Title VII of the Dodd-Frank Act: Swap dealers

and major swap participants. In addition, the Commission proposes to

rename Part 160 as ``Privacy of Consumer Financial Information under

the Gramm-Leach-Bliley Act'' to harmonize the title of this part with

other parts of the Commission's Regulations.

DATES: Comments must be received on or before December 27, 2010.

ADDRESSES: You may submit comments, identified by RIN number 3038-AD13,

by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

E-mail: infoprivacy@cftc.gov.

Mail: David A. Stawick, Secretary of the Commission,

Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

Street, NW., Washington, DC 20581.

Hand Delivery/Courier: Same as mail above.

All comments must be submitted in English, or if not, accompanied

by an English translation. Comments will be posted as received to

http://www.cftc.gov. You should submit only information that you wish

to make available publicly. If you wish the Commission to consider

information that is exempt from disclosure under the Freedom of

Information Act, 5 U.S.C. 552, a petition for confidential treatment of

the exempt information may be submitted according to the established

rules in section 145.9 of the Commission's Regulations.\1\

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\1\ 17 CFR 145.9.

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The Commission reserves the right, but shall have no obligation, to

review, pre-screen, filter, redact, refuse or remove any or all of your

submission from http://www.cftc.gov that it may deem to be

inappropriate for publication, such as obscene language. All

submissions that have been redacted or removed that contain comments on

the merits of the rulemaking will be retained in the public comment

file and will be considered as required under the Administrative

Procedure Act, 5 U.S.C. 551 et seq., and other applicable laws, and may

be accessible under the Freedom of Information Act.

FOR FURTHER INFORMATION CONTACT: Carl E. Kennedy, Counsel, Office of

General Counsel, (202) 418-6625, e-mail: c_kennedy@cftc.gov, Commodity

Futures Trading Commission, Three Lafayette Centre, 1155 21st Street,

NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

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

Street Reform and Consumer Protection Act'' (``Dodd-Frank Act'').\2\

Title VII of the Dodd-Frank Act,\3\ which substantially amended the

Commodity Exchange Act (``CEA''),\4\ established a comprehensive new

regulatory framework for swaps and security-based swaps. It lowers risk

in the financial system, increases transparency, and promotes market

integrity by, among other things: (1) Providing for the comprehensive

regulation of swap dealers and major swap participants; (2) imposing

clearing and trade execution requirements on standardized products; (3)

creating a robust real-time reporting regime; and (4) enhancing the

Commission's enforcement authorities.

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\2\ 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.

\3\ Under Section 701 of the Dodd-Frank Act, Title VII may be

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

2010.''

\4\ 7 U.S.C. 1 et seq.

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Title X of the Dodd-Frank Act creates a new consumer financial

services regulator, the Bureau of Consumer Financial Protection (the

``Bureau''), that will assume most of the consumer financial services

regulatory responsibilities currently spread among numerous agencies.

More specifically, the Dodd-Frank Act removes from the jurisdiction of

the Federal Trade Commission (``FTC'') its rulemaking and other

authorities granted pursuant to Federal consumer law, and cedes that

authority to the Bureau. In addition, section 1093 of the Dodd-Frank

Act amends Title V of the GLB Act (15 U.S.C. 6801 et seq.), to, inter

alia, reaffirm the Commission's authority to promulgate regulations to

require entities that are subject to the Commission's jurisdiction to

provide certain privacy protections for consumer financial information.

Specifically, section 1093 of the Dodd-Frank Act amends section 504 of

the GLB Act by providing that ``the [CFTC] shall have the authority to

prescribe such regulations as may be necessary to carry out the

purposes of [Title V of the GLB

[[Page 66015]]

Act] with respect to any financial institutions and other persons

subject to the jurisdiction of the [CFTC] under section 5g of the

[CEA].'' (Emphasis added.)

As enacted, Title V of the GLB Act \5\ (``Title V''), inter alia,

limits the instances in which a financial institution may disclose

nonpublic personal information about a consumer to nonaffiliated third

parties, and requires a financial institution to disclose to all of its

customers the institution's privacy policies and practices with respect

to information sharing with both affiliates and nonaffiliated third

parties.\6\

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\5\ Public Law 106-102, 113 Stat. 1338 (1999) (codified in

scattered sections of 12 U.S.C. and 15 U.S.C.).

\6\ GLB Act sections 501-510, 15 U.S.C. 6801-6809.

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In 2000, the Commodity Futures Modernization Act of 2000 (``CFMA'')

created section 5g of the CEA, providing that the Commission be treated

as a Federal functional regulator within the meaning of Title V.\7\

Section 5g also granted the Commission the authority to adopt rules

that establish appropriate standards for financial institutions subject

to its jurisdiction to safeguard customer records and information.

Section 5g provides that the following entities are subject to the

Commission's jurisdiction for the purposes of Title V: Futures

commission merchants (``FCMs''), commodity trading advisors (``CTAs''),

commodity pool operators (``CPOs''), and introducing brokers (``IBs'')

(collectively, ``CFTC registrants'').

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\7\ The other agencies subject to GLB Act jurisdiction include

the Office of the Comptroller of the Currency (``OCC''); Board of

Governors of the Federal Reserve System (``Board''); Federal Deposit

Insurance Corporation (``FDIC''); Office of Thrift Supervision

(``OTS''); National Credit Union Administration (``NCUA''); FTC; and

Securities and Exchange Commission (``SEC'').

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The Commission's consumer information privacy rules are set out in

Part 160 of the Commission's regulations, which require CFTC

registrants to adopt appropriate policies and procedures that address

safeguards to customer records and information, including initial and

annual privacy notice requirements, opt-out provisions to the extent

that these registrants wish to share such records and information with

non-affiliates and other measures to protect nonpublic consumer

information. The protections provided in Part 160 inure to the benefit

of individual consumers.\8\ The Commission recently amended the scope

of Part 160 and the definition of ``financial institution'' to include

retail foreign exchange dealers (``RFEDs'').\9\

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\8\ Section 160.3(h)(1) of the Commission's Regulations defines

the term consumer to mean ``an individual who obtains or has

obtained a financial product or service from [a financial

institution] that is to be used primarily for personal, family or

household purposes, or that individual's legal representative.''

\9\ See 75 FR 55410, 55450 (Sept. 10, 2010).

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Title VII of the Dodd-Frank Act creates two new entities over which

the Commission has jurisdiction: Swap dealers (``SDs'') and major swap

participants (``MSPs'').\10\ The Commission proposes in this rulemaking

to: (1) Expand the scope of Part 160 of its Regulations to apply to SDs

and MSPs; (2) in accordance with the transfer of authority in Title X,

changing all references in Part 160 from the FTC to the Bureau; and (3)

rename Part 160 to ``Privacy of Consumer Financial Information under

the Gramm-Leach-Bliley Act'' to harmonize the title of part 160 with

the new part of the Commission's Regulations, which provide protections

to certain customer information under the FCRA.

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\10\ The terms ``SD'' and ``MSP'' as used in this proposed

regulation refer to the statutory definitions of such terms as

defined in Title VII of the Dodd-Frank Act, and as may be further

defined by the Commission in a future rulemaking. See section 721(b)

of the Dodd-Frank Act, which provides that the Commission has the

authority to adopt rules further defining any term in an amendment

to the CEA in the Dodd-Frank Act. See also section 721(c) which

provides that the Commission is required to adopt a rule to further

define, inter alia, the terms ``swap dealer'' and ``major swap

participant'' to include transactions and entities that have been

structured to evade provisions in the Dodd-Frank Act.

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The Commission requests comment on all aspects of these conforming

amendments, as well as comment on specific provisions and issues

highlighted in the section-by-section analysis below.

II. Section-by-Section Analysis

A. Specific Section Amendments

Renaming Part 160

Another provision in Title X of the Dodd-Frank Act, section 1088,

provides that the Commission promulgate regulations under various

sections of the Fair Credit Reporting Act, 15 U.S.C. 1608 et seq.

Similar to Title V of the GLB Act, the FCRA sets forth safeguards for

the protection of a broader range of consumer information. Under a

separate rulemaking, the Commission proposes to create a new part in

its Regulations to provide protections under the FCRA. To harmonize the

title of Part 160 with the new part being adopted by the Commission

promulgated under Title X of the Dodd-Frank Act, the Commission

proposes to rename Part 160 as ``Privacy of Consumer Financial

Information under the Gramm-Leach-Bliley Act.'' \11\

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\11\ Section 1088 of the Dodd-Frank Act provides the CFTC with

authority to implement regulations under sections 624 and 628 of the

FCRA.

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Regulation 160.1(b) Scope

Regulation 160.1(b) sets out the scope of the Commission's rules

and identifies the financial institutions covered by the rules that

include CFTC registrants regardless whether they are required to

register with the Commission. The Commission proposes to add SDs and

MSPs to the scope of Part 160 (and to the definition of ``financial

institution'' therein) because, for example, these new entities may

enter into swap transactions with individuals who qualify as ``eligible

contract participants''.\12\ Section 1a(18)(A)(xi) defines ``eligible

contact participant'' to include any individual who has amounts

invested on a discretionary basis, the aggregate of which is in excess

of either $10,000,000 or, if certain other qualifications are met,

$5,000,000. As a result of this addition, SDs and MSPs that transact

swaps with individuals would have to comply with the various provisions

under Part 160, including requirements to protect the nonpublic

personal information of these individuals. Of course, if any SD or MSP

has no business interactions with natural persons, no obligations would

arise under this proposal. This proposal would ensure that all CFTC

registrants that enter into swap transactions with natural persons

would provide privacy protections to any nonpublic, consumer

information.

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\12\ New section 2(e) of the CEA--as enacted under 723(a)(2) of

the Dodd-Frank Act--provides that it is ``unlawful for any person,

other than an eligible contract participant, to enter into a swap

unless the swap is entered into on, or subject to the rules of, a

board of trade designated as a contract market under section 5 [of

the CEA].''

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Section 160.3--Definitions

Since the scope of the proposed regulations would extend to SDs and

MSPs, the Commission proposes to amend section 160.3 to add the

definitions of SDs and MSPs to the list of defined terms under section

160.3. Specifically, the Commission proposes to define ``major swap

participant'' to have the same meaning as in section 1a(33) of the CEA,

as further defined by the Commission's Regulations, and includes any

person registered as such thereunder. The Commission proposes to define

``swap dealer'' to have the same meaning as in section 1a(49) of the

CEA, as further defined by the Commission's Regulations, and includes

any person registered as such thereunder. There are existing

definitions and related

[[Page 66016]]

provisions under Part 160 that must be amended to include these new

registrants. Specifically, the definitions of ``financial

institution'', ``affiliate'', and ``you'' must be amended to include

swap dealers and major swap participants.

Section 160.15--Other Exceptions to Notice and Opt Out Requirements

As noted above, Title X of the Dodd-Frank Act transferred certain

authority from the FTC to the Bureau. Accordingly, we changed the

reference from the FTC to the Bureau in section 160.15 to reflect that

the Bureau is now a Federal functional regulator.

Section 160.17(b)--Relation to State Laws

As a result of the creation of the Bureau and the transfer of

certain authority from the FTC to the Bureau, the Commission proposes

to amend paragraph (b) by replacing it with the language similar to

section 1041(a)(2) of the Dodd-Frank Act. This section clarifies the

relationship of Title V to state consumer protection laws.

Specifically, section 1041(a)(2) provides, ``For the purposes of this

section, a [State] statute, regulation, order, or interpretation * * *

is not inconsistent with the provisions of [Title V] if the protection

that such statute, regulation, order, or interpretation affords to

consumers is greater than the protection provided under [Title V]. A

determination regarding whether a [State] statute, regulation, order,

or interpretation * * * is inconsistent with the provisions of [Title

V] may be made by the Bureau on its own motion or in response to a

nonfrivolous petition initiated by any interested person.''

Section 160.30--Procedures To Safeguard Customer Records and

Information

Section 160.30 requires CFTC registrants to adopt policies and

procedures that, among other things, address administrative, technical

and physical safeguards for the protection of customer records and

information. The Commission proposes to amend the introductory sentence

of section 160.30 to add SDs and MSPs to the list of CFTC registrants

that must comply with this requirement.

B. Effective Date

Pursuant to section 1100H of the Dodd-Frank Act, the Commission

proposes to make the proposed regulations--the affiliate marketing

rules and the disposal rules--become effective on the ``designated

transfer date'' of authority from various Federal agencies to the

Bureau. Section 1062 of the Dodd-Frank Act provides that the

``designated transfer date'' is a date designated in the Federal

Register no later than 60 days after the enactment of the Dodd-Frank

Act by the Secretary of the Treasury, the Chairman of the Board of

Governors, the Chairman of the Federal Trade Commission, and several

other Federal agencies.\13\ On September 20, 2010, these Federal

agencies issued a notice designating July 21, 2011 as the designated

transfer date.\14\ As a result, the Commission proposes to adopt the

affiliate marketing rules and the disposal rules on that date.

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\13\ The heads of the other Federal agencies are: The

Comptroller of the Currency; the Director of the Office of Thrift

Supervision; the Secretary of the Department of Housing and Urban

Development; the Director of the Office of Management and Budget;

the Chairman of the National Credit Union Administration Board; and

the Chairperson of the Corporation.

\14\ See 75 FR 57252-02 (Sept. 20, 2010).

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III. Related Matters

A. Cost-Benefit Analysis

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

the costs and benefits of its actions before issuing an order under the

CEA. By its terms, section 15(a) does not require the Commission to

quantify the costs and benefits of amendments to regulations to

determine whether the benefits of the amendments outweigh its costs;

rather, it requires that the Commission ``consider'' the costs and

benefits of its actions. Section 15(a) further specifies that the costs

and benefits shall be evaluated in light of five broad areas of market

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

public; (2) efficiency, competitiveness and financial integrity of

futures markets; (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 and could in its discretion determine that,

notwithstanding its costs, a particular amendment is necessary or

appropriate to protect the public interest or to effectuate any of the

provisions or accomplish any of the purposes of the Act. The proposed

conforming rule amendments would broaden the scope of Part 160 to cover

SDs and MSPs.

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\15\ 7 U.S.C. 19(a).

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With respect to costs, the Commission has determined that the

proposed conforming amendments are necessary to implement various

consumer financial information privacy provisions as they relate to SDs

and MSPs, by adding these new registrants to the list of financial

institutions responsible for complying with its provisions under part

160 of its Regulations.

The Commission has determined that market participants and the

public may be harmed if these new registrants are not added to part

160. The notice requirements under part 160 were established to protect

individual customers who do business with CFTC registrants. There is no

reason why SDs and MSPs should be excluded from these requirements to

the extent that they conduct business with a natural person. With

respect to benefits, the Commission has determined that requiring

financial institutions to protect the privacy of nonpublic personal

information about consumers is a benefit that must be maintained given

the risks to the public if it is not, given the minor costs to the

financial institutions affected by the conforming amendments.

The Commission invites public comment on its cost-benefit

considerations. Commenters are also invited to submit any data or other

information that they may have quantifying or qualifying the costs and

benefits of the proposal.

B. Paperwork Reduction Act

Under the Paperwork Reduction Act (``PRA'') an agency may not

conduct or sponsor, and a person is not required to respond to, a

collection of information unless it displays a currently valid control

number.\16\ The proposed amendments to Part 160 of the Commission's

Regulations include a collection of information within the meaning of

the PRA. The Commission therefore is submitting this proposal to the

Office of Management and Budget (``OMB'') for review in accordance with

44 U.S.C. 3507(d) and 5 CFR 1320.11, together with a request for

approval of a revision to the Commission's currently approved

collection associated with part 160. The title of the collection of

information to be revised is ``Privacy of Consumer Financial

Information,'' OMB Control Number 3038-0055. If approved, the provision

of notice to this revised collection of information would be mandatory

for SDs and MSPs.

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\16\ 44 U.S.C. 3501 et seq.

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1. Information Provided by Reporting Entities

The proposed rule would require SDs and MSPs to provide initial and

annual privacy and opt-out notices to all customers that are natural

persons. It is not currently known how many SDs and MSPs will be

required to register as such with the Commission, and this will

[[Page 66017]]

not be known to the Commission until registration requirements for

these entities become effective after July 15, 2011, the date on which

the Dodd-Frank Act becomes effective.

Nonetheless, for purposes of calculating PRA burden, the Commission

estimates that there will be approximately 300 SDs and MSPs who would

be required to provide notices under part 160 on an initial and then on

an annual basis.\17\ It is anticipated that most SDs and MSPs will not

transact business with a significant number of natural persons, causing

the Commission to estimate that each SD and MSP will issue an average

of 20 notices per year. As previously estimated, the average time per

notice will be .24 hours. This will result in an annual aggregate of

1,440 burden hours.

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\17\ While staff believes that there may likely be approximately

200 swap dealers, we have taken a conservative approach in

estimating that there will be 250 swap dealers for PRA purposes.

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2. Information Collection Comments

The Commission invites the public and other Federal agencies to

comment on any aspect of the reporting and recordkeeping burdens

discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission

solicits comments in order to: (i) Evaluate whether the proposed

collection of information is necessary for the proper performance of

the functions of the Commission, including whether the information will

have practical utility; (ii) evaluate the accuracy of the Commission's

estimate of the burden of the proposed collection of information; (iii)

determine whether there are ways to enhance the quality, utility, and

clarity of the information to be collected; and (iv) minimize the

burden of the collection of information on those who are to respond,

including through the use of automated collection techniques or other

forms of information technology. Comments may be submitted directly to

the Office of Information and Regulatory Affairs, by fax at (202) 395-

6566 or by e-mail at OIRAsubmissions@omb.eop.gov. Please provide the

Commission with a copy of submitted comments so that they can be

summarized and addressed in the final rule. Refer to the ADDRESSES

section of this notice of proposed rulemaking for comment submission

instructions to the Commission. A copy of the supporting statements for

the collections of information discussed above may be obtained by

visiting RegInfo.gov. OMB is required to make a decision concerning the

collection of information between 30 and 60 days after publication of

this release. Consequently, a comment to OMB is most assured of being

fully effective if received by OMB (and the Commission) within 30 days

after publication of this notice of proposed rulemaking.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA'') requires that agencies

consider whether their proposed regulations will have a significant

economic impact on a substantial number of small entities and, if so,

provide a regulatory flexibility analysis respecting the impact.\18\

The Commission's proposed regulations now will affect SDs and MSPs, in

addition to the CFTC registrants that are currently subject to

Commission's Regulations under Part 160. These regulations require

periodic notice to be provided to individuals who obtain financial

products or services primarily for personal, family, or household

purposes from the institutions, and may be satisfied by the use of a

model notice developed by the Commission and other regulatory agencies

to minimize the burden of compliance. Accordingly, the Commission has

determined that the obligations created by these rule amendments will

not create a significant economic impact on a substantial number of

small entities. Accordingly, the Chairman, on behalf of the Commission,

hereby certifies pursuant to 5 U.S.C. 605(b) that the proposed rules

will not have a significant impact on a substantial number of small

entities.

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\18\ 5 U.S.C. 601 et seq.

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List of Subjects in 17 CFR Part 160

Brokers, Dealers, Consumer protection, Privacy, Reporting and

recordkeeping requirements.

For the reasons articulated in the preamble, the Commission

proposes to amend Part 160 of Title 17 of the Code of Federal

Regulations as follows:

1. The heading of part 160 is revised to read as follows:

PART 160--PRIVACY OF CONSUMER FINANCIAL INFORMATION UNDER TITLE V

OF THE GRAMM-LEACH-BLILEY ACT

2. The authority citation for part 160 is revised to read as

follows:

Authority: 7 U.S.C. 7b-2 and 12a(5); 15 U.S.C 6801, et seq.,

and title X, sec. 1093, Pub. L. 111-203, 124 Stat. 1376.

3. Amend Sec. 160.1 by revising paragraph (b) to read as follows:

Sec. 160.1 Purpose and scope.

* * * * *

(b) Scope. This part applies only to nonpublic personal information

about individuals who obtain financial products or services primarily

for personal, family, or household purposes from the institutions

listed below. This part does not apply to information about companies

or about individuals who obtain financial products or services

primarily for business, commercial, or agricultural purposes. This part

applies to all futures commission merchants, retail foreign exchange

dealers, commodity trading advisors, commodity pool operators,

introducing brokers, major swap participants and swap dealers that are

subject to the jurisdiction of the Commission, regardless whether they

are required to register with the Commission. These entities are

hereinafter referred to in this part as ``you.'' This part does not

apply to foreign (non-resident) futures commission merchants, retail

foreign exchange dealers, commodity trading advisors, commodity pool

operators, introducing brokers, major swap participants and swap

dealers that are not registered with the Commission.

* * * * *

4. Amend Sec. 160.3 as follows:

a. Revise paragraphs (a), (n)(1)(i), (n)(2)(i), and (o)(1)(i);

b. Redesignating paragraphs (w) and (x) as paragraphs (y) and (z);

c. Redesignating paragraphs (s) through (v) as paragraphs (t)

through (w);

d. Adding new paragraphs (s) and (x); and

e. Revising newly designated paragraphs (y)(4) and (5) and adding

new paragraphs (y)(6) and (7) to read as follows:

Sec. 160.3 Definitions.

* * * * *

(a) Affiliate of a futures commission merchant, retail foreign

exchange dealer, commodity trading advisor, commodity pool operator,

introducing broker, major swap participant, or swap dealer means any

company that controls, is controlled by, or is under common control

with a futures commission merchant, retail foreign exchange dealer,

commodity trading advisor, commodity pool operator, introducing broker,

major swap participant, or swap dealer that is subject to the

jurisdiction of the Commission. In addition, a futures commission

merchant, retail foreign exchange dealer, commodity trading advisor,

commodity pool operator, introducing broker, major swap participant, or

swap dealer subject to the jurisdiction of the Commission will

[[Page 66018]]

be deemed an affiliate of a company for purposes of this part if:

(1) That company is regulated under Title V of the GLB Act by the

Bureau of Consumer Financial Protection or by a Federal functional

regulator other than the Commission; and

(2) Rules adopted by the Bureau of Consumer Financial Protection or

another Federal functional regulator under Title V of the GLB Act treat

the futures commission merchant, retail foreign exchange dealer,

commodity trading advisor, commodity pool operator, introducing broker,

major swap participant, or swap dealer as an affiliate of that company.

* * * * *

(n)(1) * * *

(i) Any futures commission merchant, retail foreign exchange

dealer, commodity trading advisor, commodity pool operator, introducing

broker, major swap participant, or swap dealer that is registered with

the Commission as such or is otherwise subject to the Commission's

jurisdiction; and

(ii) * * *

(2) * * *:

(i) Any person or entity, other than a futures commission merchant,

retail foreign exchange dealer, commodity trading advisor, commodity

pool operator, introducing broker, major swap participant, or swap

dealer that, with respect to any financial activity, is subject to the

jurisdiction of the Commission under the Act.

* * * * *

(o)(1) * * *:

(i) Any product or service that a futures commission merchant,

retail foreign exchange dealer, commodity trading advisor, commodity

pool operator, introducing broker, major swap participant, or swap

dealer could offer that is subject to the Commission's jurisdiction;

and

* * * * *

(s) Major swap participant. The term ``major swap participant'' has

the same meaning as in section 1a(33) of the Commodity Exchange Act, 7

U.S.C. 1 et seq., as may be further defined by this title, and includes

any person registered as such thereunder.

* * * * *

(x) Swap dealer. The term ``swap dealer'' has the same meaning as

in section 1a(49) of the Commodity Exchange Act, 7 U.S.C. 1 et seq., as

may be further defined by this title, and includes any person

registered as such thereunder.

(y) * * *

(4) Any commodity pool operator;

(5) Any introducing broker;

(6) Any major swap participant; and

(7) Any swap dealer subject to the jurisdiction of the Commission.

* * * * *

5. Amend Sec. 160.15 by revising paragraph (a)(4) to read as

follows:

Sec. 160.15 Other exceptions to notice and opt out requirements.

(a) * * *

(4) To the extent specifically permitted or required under other

provisions of law and in accordance with the Right to Financial Privacy

Act of 1978, 12 U.S.C. 3401 et seq., to law enforcement agencies

(including a Federal functional regulator, the Secretary of the

Treasury, with respect to 31 U.S.C. Chapter 53, Subchapter II (Records

and Reports on Monetary Instruments and Transactions) and 12 U.S.C.

Chapter 21 (Financial Recordkeeping), a State insurance authority, with

respect to any person domiciled in that insurance authority's state

that is engaged in providing insurance, and the Bureau of Consumer

Financial Protection), self-regulatory organizations, or for an

investigation on a matter related to public safety;

* * * * *

6. Amend Sec. 160.17 by revising paragraph (b) to read as follows:

Sec. 160.17 Relation to state laws.

* * * * *

(b) Greater protection under state law. For purposes of this

section, a state statute, regulation, order or interpretation is not

inconsistent with the provisions of this part if the protection such

statute, regulation, order or interpretation affords to any consumer is

greater than the protection provided under this part. A determination

regarding whether a state statute, regulation, order, or interpretation

is inconsistent with the provisions of this part may be made by the

Bureau of Consumer Financial Protection, after consultation with the

Commission, on its own motion or in response to a nonfrivolous petition

initiated by any interested person.

7. Revise Sec. 160.30 to read as follows:

Sec. 160.30 Procedures to safeguard customer records and information.

Every futures commission merchant, retail foreign exchange dealer,

commodity trading advisor, commodity pool operator, introducing broker,

major swap participant, and swap dealer subject to the jurisdiction of

the Commission must adopt policies and procedures that address

administrative, technical and physical safeguards for the protection of

customer records and information.

By the Commission.

Dated: October 19, 2010.

David A. Stawick,

Secretary.

Statement of Chairman Gary Gensler

Privacy of Consumer Financial Information; Conforming Amendments Under

Dodd-Frank Act

October 19, 2010

I support today's Commission vote on the notice of public

rulemaking, which expands the scope of the Commission's existing

protections afforded to consumers' information to two new entities

created by the Dodd-Frank Act. The proposed rulemaking expands the

Commission's Part 160 rules to customers of swap dealers and major swap

participants. Part 160 includes the Commission's existing privacy rules

for consumers.

[FR Doc. 2010-26912 Filed 10-26-10; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: October 27, 2010