appropriately be classified as futures contracts? What aspects, if any, distinguish event contracts from other types of futures contracts? 35. The event underlying an event contract is typically within the definition of the term “excluded commodity” in CEA section 1a(19). 69 Are there any event contracts that are based on events that are not within this statutory definition? If so, how are those event contracts similar to, or different from, event contracts based on events that are within the statutory definition of “excluded commodity”? How are such differences, if any, relevant to the Commission’s regulation of event contracts and prediction markets? 36. Are there any agreements, contracts or transactions that are significantly similar to event contracts, but are not listed on a DCM or SEF? If so, how are those agreements, contracts or transactions similar to, or different from, event contracts listed on DCMs and SEFs? 37. In the 2012 joint rulemaking to further define the term “swap,” the CFTC and the SEC adopted an interpretation which, in part, listed certain types of agreements, contracts, or transactions that “will not be considered swaps or security-based swaps when entered into by consumers (natural persons) … primarily for personal, family, or household purposes.” 70 In doing so, the CFTC and SEC stated that they “do not believe that Congress intended to include these types of customary consumer and commercial agreements, contracts, or transactions in the swap or security-based swap definition, to limit the types of persons that can enter into or engage in them, or to otherwise to subject 69 7 U.S.C. 1a(19). The definition is set out in full in note 23, supra . 70 Further Definition of “Swap,” “Security-Based Swap,” and “Security-Based Swap Agreement”; Mixed Swaps; Security-Based Swap Agreement Recordkeeping, 77 FR 48208, 48246 (Aug. 13, 2012). This further definition was adopted pursuant to Dodd-Frank Act section 712(d)(1), which directed the CFTC and SEC to undertake a joint rulemaking to define, among other terms, “Swap,” “Security-Based Swap,” and “Security-Based Swap Agreement.”
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