114 STAT. 2763A-458 PUBLIC LAW 106-554—APPENDIX E (c) HYBRID INSTRUMENT.—In this title, the term "hybrid instrument" means an identified banking product not excluded by section 403 of this Act, offered by a bank, having one or more payments indexed to the value, level, or rate of, or providing for the delivery of, one or more commodities (as defined in section la(4) of the Commodity Exchange Act). (d) COVERED SWAP AGREEMENT.—In this title, the term "covered swap agreement" means a swap agreement (as defined in section 206(b) of the Gramm-Leach-Bliley Act), including a credit or equity swap, based on a commodity other than an agricultural commodity enumerated in section la(4) of the Commodity Exchange Act if— (1) the swap agreement— (A) is entered into only between persons that are eligible contract participants (as defined in section la(12) of the Commodity Exchange Act, as in effect on the date of the enactment of the Commodity Futures Modernization Act of 2000) at the time the persons enter into the swap agreement; and (B) is not entered into or executed on a trading facility (as defined in section la(33) of the Commodity Exchange Act); or (2) the swap agreement— (A) is entered into or executed on an electronic trading facility (as defined in section la(10) of the Commodity Exchange Act); (B) is entered into on a principal-to-principal basis between parties trading for their own accounts or as described in section la(12)(B)(ii) of the Commodity Exchange Act; (C) is entered into only between persons that are eligible contract participants as described in subparagraph (A), (B)(ii), or (C) of section la(12) of the Commodity Exchange Act, as in effect on the date of the enactment of the Commodity Futures Modernization Act of 2000, at the time the persons enter into the swap agreement; and (D) is an agreement, contract or transaction in an excluded commodity (as defined in section la(13) of the Commodity Exchange Act). SEC. 403. EXCLUSION OF IDENTIFIED BANKING PRODUCTS COMMONLY OFFERED ON OR BEFORE DECEMBER 5, 2000. No provision of the Commodity Exchange Act shall apply to, and the Commodity Futures Trading Commission shall not exercise regulatory authority with respect to, an identified banking product if— (1) an appropriate banking agency certifies that the product has been commonly offered, entered into, or provided in the United States by any bank on or before December 5, 2000, under applicable banking law; and (2) the product was not prohibited by the Commodity Exchange Act and not regulated by the Commodity Futures Trading Commission as a contract of sale of a commodity for future delivery (or an option on such a contract) or an option on a commodity, on or before December 5, 2000.
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