7 U.S.C. § 27d — Administration of the predominance test

(a) In general No part of the Commodity Exchange Act applies to a hybrid instrument, and the CFTC may not regulate it, unless the CFTC determines — by or under a rule issued under this section — that: (1) the action is necessary and appropriate in the public interest; (2) the action is consistent with the Commodity Exchange Act and its purposes; and (3) the instrument is not predominantly a banking product under the predominance test in section 27c(b) of this title. (b) Consultation Before starting a rulemaking or making a determination under sections 27 to 27f of this title, the CFTC must consult with and seek the agreement of the Federal Reserve Board's Board of Governors, about: (1) the nature of the hybrid instrument; and (2) the history, purpose, extent, and appropriateness of regulating it under the Commodity Exchange Act and under appropriate banking laws. (c) Objection to Commission regulation (1) The Federal Reserve Board's Board of Governors may seek review of any rule or determination under (a) in the U.S. Court of Appeals for the District of Columbia Circuit, by filing a written petition within 60 days of the rule or determination's publication, asking the court to set it aside. The court must expedite any such challenge. (2) The court clerk transmits a copy of the petition to the CFTC. The CFTC must then file with the court the rule or determination under review, plus any documents it refers to, and other relevant materials the court prescribes. (3) Once the petition is filed, the court gets jurisdiction over the matter — which becomes exclusive once the CFTC files its materials — to affirm and enforce, or set aside, the rule or determination. (4) The court decides whether to affirm and enforce, or set aside, the rule or determination, based on: (A) whether the product is predominantly a banking product; and (B) whether applying the Commodity Exchange Act provisions at issue is appropriate given the history, purpose, and extent of regulation under that Act, these sections, and the appropriate banking laws — giving deference to neither the CFTC's nor the Federal Reserve Board's views. (5) Filing the Board's petition operates as a judicial stay — pausing the rule — until the court's determination is final, including any appeal. (6) Any other aggrieved party may also seek judicial review of a CFTC determination or rulemaking under this section, under section 6(c) of the Commodity Exchange Act.