SEC Adopts Registration Rules for Security-based Swap Dealers and Major Security-based Swap Participants | Practical Law

SEC Adopts Registration Rules for Security-based Swap Dealers and Major Security-based Swap Participants | Practical Law

The SEC adopted registration rules for security-based swap dealers (SBSDs) and major security-based swap participants (MSBSPs) under Title VII of the Dodd-Frank Act. The rules also cover the relationships of these "SBS Entities" with certain associated persons (APs).

SEC Adopts Registration Rules for Security-based Swap Dealers and Major Security-based Swap Participants

by Practical Law Finance
Published on 06 Aug 2015USA (National/Federal)
The SEC adopted registration rules for security-based swap dealers (SBSDs) and major security-based swap participants (MSBSPs) under Title VII of the Dodd-Frank Act. The rules also cover the relationships of these "SBS Entities" with certain associated persons (APs).
On August 5, 2015, the SEC adopted final rules under Title VII of the Dodd-Frank Act which provide a comprehensive process for security-based swap dealers (SBSDs) and major security-based swap participants (MSBSPs) to register with the SEC. Because SBSDs and MSBSPs meet certain large notional thresholds of security-based swap (SBS) trading activity (see Practice Note, US Derivatives Regulation: Swap Dealer and MSP Threshold Calculations), they are subject to special regulation under Title VII.
The rules address all aspects of the registration regime for SBSDs and MSBSPs (collectively, SBS Entities), setting out an extensive set of information required to be provided and kept up to date by the registrant. In addition, the rules require senior officers to make certifications about the registrant’s policies and procedures for compliance with the federal securities laws at the time of registration. The rules also cover the relationships of SBS Entities with certain "associated persons" (APs).
Section 15F of the Securities Exchange Act of 1934 (Exchange Act), which was added to the Exchange Act by Section 764(a) of Title VII of the Dodd-Frank Act, requires the SEC to issue rules to provide for the registration of SBS Entities. These final rules and forms establish a process by which SBS Entities can register (and withdraw from registration) with the SEC.
Specifically, the SEC adopted the following new final rules:
  • Rule 15Fb1-1 specifies the format and certain requirements for signatures to electronic submissions (including signatures within the forms and certifications required by Rules 15Fb2-1, 15Fb2-4 and 15Fb6-2, discussed below).
  • Rule 15Fb2-1 describes the process through which an SBS Entity can apply for registration with the SEC. This rule identifies the application form that various types of entities must use to register, how such application must be filed, and the standard the SEC will use to determine whether to grant registration. Under Rule 15Fb2-1, an application for registration of an SBS Entity must be filed on Form SBSE, Form SBSE-A or Form SBSE-BD, as appropriate. An applicant also must file Form SBSE-C as part of its application, which includes two separate certifications. One of those certifications, provided for in Rule 15Fb2-1(b), requires a senior officer of the applicant to certify that, after due inquiry, he or she has reasonably determined that the applicant has developed and implemented written policies and procedures reasonably designed to prevent violations of the federal securities laws and the rules thereunder, and that he or she has documented the process by which he or she reached such determination (the Senior Officer Certification).
  • Rule 15Fb2-3 requires an SBS Entity to promptly file an amendment where the information contained in its Form SBSE, Form SBSE-A, or Form SBSE-BD, as applicable, or in any amendment thereto, is or has become inaccurate for any reason.
  • Rule 15Fb2-4 requires that nonresident SBS Entities obtain a US agent for service of process and an opinion of counsel determining that they can, as a matter of law, provide the SEC with access to their books and records and submit to onsite examination. Rule 15Fb2-4 also requires that, as part of their applications, these entities provide the SEC with information regarding their agent for service of process and certify that they can, as a matter of law, and will provide the SEC with access to their books and records and submit to onsite examination.
  • Rule 15Fb2-5 provides a process through which an SBS Entity may succeed to the business of another SBS Entity.
  • Rule 15Fb2-6 provides a process through which an executor, administrator, guardian, conservator, assignee for the benefit of creditors, receiver, trustee in insolvency or bankruptcy or other fiduciary appointed or qualified by order, judgment or decree of a court of competent jurisdiction may continue the business of an SBS Entity.
  • Rule 15Fb3-1 concerns the duration of registration and provides that an SBS Entity will continue to be registered until the effective date of any cancellation, revocation or withdrawal of registration.
  • Rule 15Fb3-2 provides a process by which an SBS Entity may withdraw from registration with the SEC.
  • Rule 15Fb3-3 provides a process by which the SEC may cancel or revoke the registration of an SBS Entity.
  • Rule 15Fb6-1 provides that unless otherwise ordered by the SEC, when it files an application to register with the SEC as an SBSD or MSBSP, an SBS Entity may permit a person that is associated with it that is not a natural person and that is subject to statutory disqualification to effect or be involved in effecting SBS on its behalf, provided that the statutory disqualification(s), described in Sections 3(a)(39)(A) through (F) of the Exchange Act (15 U.S.C. 78c(a)(39)), occurred prior to the compliance date of this rule, and provided that it identifies each such associated person on Schedule C of Form SBSE, Form SBSE-A, or Form SBSE-BD, as appropriate.
  • Rule 15Fb6-2 requires that the chief compliance officer (CCO) of an SBS Entity certify on Form SBSE-C that it neither knows, nor in the exercise of reasonable care should have known, that any person associated with it who effects or is involved in effecting SBS on its behalf is subject to statutory disqualification, unless otherwise specifically provided by rule, regulation or order of the SEC (the CCO Certification Regarding Associated Persons). This rule also requires that to support the certification, the CCO, or his or her designee, review and sign the questionnaire or application for employment executed by each of the SBS Entity’s associated persons who are natural persons and effect or are involved in effecting SBS on behalf of the SBS Entity.
In addition, the SEC adopted the following forms:
  • Form SBSE-BD, the registration form for SBS Entities registered or registering with the SEC as broker-dealers.
  • Form SBSE-A, the registration form for SBS Entities registered or registering with the CFTC as swap dealers (SDs) or major swap participants (MSPs) (and not also registered or registering with the SEC as broker-dealers).
  • Form SBSE, the registration form for SBS Entities that do not fit either of the above categories.
  • Form SBSE-C, the certification form for SBS entity applicants containing the Senior Officer Certification required by Rule 15Fb2-1(b) and the CCO Certification Regarding Associated Persons required by Rule 15Fb6-2(a).
  • Form SBSE-W, the form that SBS Entities would file for notice of withdrawal from registration.
The SEC notes in the final rules that Section 712(a)(2) of the Dodd-Frank Act provides in part that the SEC shall "consult and coordinate to the extent possible with the [CFTC] and the prudential regulators for the purpose of assuring regulatory consistency and comparability, to the extent possible." The SEC states that in developing these rules and forms, its staff consulted and coordinated with the CFTC and the prudential regulators. Regardless, there appear to be few economies of form between the CFTC SD/MSP registration forms and these new SEC forms.

Compliance Date

Although the final rules technically become effective on October 13, 2015, compliance (including registration) is not required until the latest of the following:
  • Six months after the date of publication in the Federal Register of a final rule release adopting rules establishing capital, margin and segregation requirements for SBS Entities;
  • The compliance date of final rules establishing recordkeeping and reporting requirements for SBS Entities;
  • The compliance date of final rules establishing business conduct requirements under Exchange Act Sections 15F(h) and 15F(k); or
  • The compliance date for final rules establishing a process for a registered SBS Entity to make an application to the SEC to allow an associated person (AP) who is subject to a statutory disqualification to effect or be involved in effecting SBS on the SBS Entity’s behalf.
None of these rules are yet scheduled to take effect, so there is currently no timetable for registration or compliance with the other final rules.

Counting Date

For purposes of complying with the registration and other requirements, persons are not required to begin calculating whether their activities meet or exceed the thresholds established in Exchange Act Rules 3a71-2, 3a67-3, and 3a67-5 (see Practice Note, US Derivatives Regulation: Swap Dealer and MSP Threshold Calculations) until two months prior to the compliance date of these rules. Following the compliance date, a market participant that exceeds the established threshold must register two months after the end of the first month in which it exceeded the relevant threshold (ex: if threshold is exceeded on May 20, registration must be completed by July 31).