114 STAT. 2763A-460 PUBLIC LAW 106-554—APPENDIX E (1) the action is necessary and appropriate in the public interest; (2) the action is consistent with the Commodity Exchange Act and the purposes of the Commodity Exchange Act; and (3) the hybrid instrument is not predominantly a banking product under the predominance test set forth in section 405(b) of this Act. (b) CONSULTATION. —Before commencing a rulemaking or making a determination pursuant to a rule issued under this title, the Commodity Futures Trading Commission shall consult with and seek the concurrence of the Board of Governors of the Federal Reserve System concerning— (1) the nature of the hybrid instrument; and (2) the history, purpose, extent, and appropriateness of the regulation of the hybrid instrument under the Commodity Exchange Act and under appropriate banking laws. (c) OBJECTION TO COMMISSION REGULATION.— (1) FILING OF PETITION FOR REVIEW.— The Board of Governors of the Federal Reserve System may obtain review of any rule or determination referred to in subsection (a) in the United States Court of Appeals for the District of Columbia Circuit by filing in the court, not later than 60 days after the date of publication of the rule or determination, a written petition requesting that the rule or determination be set aside. Any proceeding to challenge any such rule or determination shall be expedited by the court. (2) TRANSMITTAL OF PETITION AND RECORD.—^A copy of a petition described in paragraph (1) shall be transmitted as soon as possible by the Clerk of the court to an officer or employee of the Commodity Futures Trading Commission designated for that purpose. Upon receipt of the petition, the Commission shall file with the court the rule or determination under review and £my documents referred to therein, and any other relevant materials prescribed by the court. (3) EXCLUSIVE JURISDICTION.—On the date of the filing of a petition under paragraph (1), the court shall have jurisdiction, which shall become exclusive on the filing of the materials set forth in paragraph (2), to affirm and enforce or to set aside the rule or determination at issue. (4) STANDARD OF REVIEW. —The court shall determine to affirm and enforce or set aside a rule or determination of the Commodity Futures Trading Commission under this section, based on the determination of the court as to whether— (A) the subject product is predominantly a banking product; and (B) making the provision or provisions of the Commodity Exchange Act at issue applicable to the subject instrument is appropriate in light of the history, purpose, and extent of regulation under such Act, this title, and under the appropriate banking laws, giving deference neither to the views of the Commodity Futures Trading Commission nor the Board of Governors of the Federal Reserve System. (5) JUDICIAL STAY. — The filing of a petition by the Board pursuant to paragraph (1) shall operate as a judicial stay, until the date on which the determination of the court is final (including any appeal of the determination).
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