A. The prohibitions in Section 3 [58-13A-3 N.M. Stat. Ann.] of the Model State Commodity Code shall not apply to the following:

(1)     a transaction within the exclusive jurisdiction of the commodity futures trading commission as granted under the Commodity Exchange Act;

(2)     a commodity contract for the purchase of one or more precious metals which requires, and under which the purchaser receives, within seven calendar days from the payment in good funds of any portion of the purchase price, physical delivery of the quantity of the precious metals purchased by such payment, provided that, for purposes of this paragraph, physical delivery shall be deemed to have occurred if, within such seven-day period, such quantity of precious metals purchased by such payment is delivered, whether in specifically segregated or fungible bulk form, into the possession of a depository other than the seller which is either:

(a) a financial institution;

(b) a depository the warehouse receipts of which are recognized for delivery purposes for any commodity on a contract market designated by the commodity futures trading commission;

(c) a storage facility licensed or regulated by the United States or any agency thereof; or

(d) a depository designated by the director, and such depository, or other person which itself qualifies as a depository as aforesaid, issues and the purchaser receives, a certificate, document of title, confirmation or other instrument evidencing that such quantity of precious metals has been delivered to the depository and is being and will continue to be held by the depository on the purchaser’s behalf, free and clear of all liens and encumbrances, other than liens of the purchaser, tax liens, liens agreed to by the purchaser or liens of the depository for fees and expenses, which have previously been disclosed to the purchaser;

(3)     a commodity contract for the sale of a cash commodity for deferred shipment or delivery entered into solely between persons engaged in producing, processing, using commercially or handling as merchants, each commodity subject thereto, or any by-product thereof; or

(4)     a commodity contract under which the offeree or the purchaser is a person referred to in Section 4 [58-13A-4 N.M. Stat. Ann.] of the Model State Commodity Code, an insurance company, an investment company as defined in the Investment Company Act of 1940 or an employee pension and profit-sharing or benefit plan, other than a self- employed individual retirement plan or individual retirement account.

B. The director may issue rules, regulations or orders prescribing the terms and conditions of all transactions and contracts covered by the provisions of the Model State Commodity Code which are not within the exclusive jurisdiction of the commodity futures trading commission as granted by the Commodity Exchange Act, exempting any person or transaction from any provision of the Model State Commodity Code conditionally or unconditionally and otherwise implementing the provisions of that code for the protection of purchasers and sellers of commodities.