Proposed Rule Amendments and Guidance Addressing Cross-Border Application of Certain Security-Based Swap Requirements, 24206-24294 [2019-10016]

Download as PDF 24206 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 201 and 240 [Release No. 34–85823; File No. S7–07–19] RIN 3235–AM13 Proposed Rule Amendments and Guidance Addressing Cross-Border Application of Certain Security-Based Swap Requirements Securities and Exchange Commission. ACTION: Proposed rules; proposed interpretations. AGENCY: The Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) is proposing a number of actions to address the cross-border application of certain security-based swap requirements under the Securities Exchange Act of 1934 (‘‘Exchange Act’’) that were added by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the ‘‘DoddFrank Act’’). DATES: Submit comments on or before July 23, 2019. ADDRESSES: Comments may be submitted by any of the following methods: SUMMARY: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/proposed.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number S7– 07–19 on the subject line. khammond on DSKBBV9HB2PROD with PROPOSALS2 Paper Comments • Send paper comments to [ ], Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to File Number S7–07–19. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/proposed.shtml). Comments are also available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change. Persons submitting comments are cautioned that the Commission does not redact or edit personal identifying information from comment submissions. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 You should submit only information that you wish to make publicly available. Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission’s website. To ensure direct electronic receipt of such notifications, sign up through the ‘‘Stay Connected’’ option at www.sec.gov to receive notifications by email. FOR FURTHER INFORMATION CONTACT: Carol M. McGee, Assistant Director, at 202–551–5870, regarding the proposed interpretive guidance related to security-based swap transactions that have been ‘‘arranged’’ or ‘‘negotiated’’ by personnel located in the United States and the proposed amendment to Exchange Act Rule 3a71–3; Devin Ryan, Senior Special Counsel and Edward Schellhorn, Special Counsel regarding the proposed amendment to Commission Rule of Practice 194; Joanne Rutkowski, Assistant Chief Counsel and Bonnie Gauch, Senior Special Counsel, regarding the proposed amendments to Exchange Act Rule 15Fb2–1 and proposed interpretive guidance related to Exchange Act Rule 15Fb2–4; and Joseph Levinson, Senior Special Counsel, regarding the proposed modifications to proposed Exchange Act Rule 18a–5; at 202–551–5777, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–7010. SUPPLEMENTARY INFORMATION: The Commission is proposing for public comment guidance regarding the application of certain uses of the terms ‘‘arranged’’ and ‘‘negotiated’’ in connection with the cross-border application of security-based swap regulation under the Exchange Act, guidance regarding the certification and opinion of counsel requirements in Exchange Act Rule 15Fb2–4 and Rule 3a71–6, amendments to Exchange Act Rules 0–13, 3a71–3, 15Fb2–1, and Commission Rule of Practice 194, and modifications to proposed Rule 18a–5. First, the Commission is proposing supplemental guidance to address how certain requirements under Title VII— related to security-based swap transactions that have been ‘‘arranged’’ or ‘‘negotiated’’ by personnel located in the United States—apply to transactions involving limited activities by those U.S. personnel. Separately, the Commission is requesting comment on two alternative proposals to amend Rule 3a71–3 under the Exchange Act to modify a provision addressing the cross- PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 border application of the ‘‘securitybased swap dealer’’ de minimis exception. Both of the alternative proposals for the amendment would add an exception to the rule’s existing requirement that, for purposes of determining whether an entity must register as a security-based swap dealer, non-U.S. persons must count, as part of their de minimis calculations, securitybased swap dealing transactions that have been ‘‘arranged, negotiated, or executed’’ by personnel located in a U.S. branch or office. The Commission also is proposing corresponding technical revisions to Exchange Act Rule 0–13 in conjunction with the proposed amendment. The Commission further is requesting comment on whether to provide other conditional exceptions for certain other requirements that apply to such ‘‘arranged, negotiated, or executed’’ transactions, including regulatory reporting and public dissemination requirements and security-based swap dealer business conduct requirements. Separately, the Commission is proposing to provide guidance regarding the certification and opinion of counsel requirements in Exchange Act Rule 15Fb2–4. The Commission is proposing to amend Exchange Act Rule 15Fb2–1 to provide additional time for a securitybased swap dealer or major securitybased swap participant (collectively defined as ‘‘SBS Entity’’) to submit the certification and opinion of counsel required under Rule 15Fb2–4(c)(1). In addition, the Commission is proposing to amend Rule of Practice 194 to exclude an SBS Entity, subject to certain limitations, from the prohibition in Exchange Act Section 15F(b)(6) with respect to an associated person who is a natural person who (i) is not a U.S. person and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person. Finally, the Commission is proposing certain modifications to proposed Exchange Act Rule 18a–5 to address the questionnaire or application for employment that an SBS Entity is required to make and keep current with respect to certain foreign associated persons. I. Background The Commission has proposed and finalized a number of rules to implement requirements under Title VII E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 of the Dodd-Frank Act 1 providing for the regulation of security-based swap activity. Several of those rules include provisions to address unique concerns raised by cross-border activity in security-based swaps, including: • Exchange Act Rule 3a71–3, which, among other things, requires (1) nonU.S. persons to include security-based swap dealing transactions that have been ‘‘arranged, negotiated, or executed’’ using U.S. personnel 2 in their calculations under the de minimis exception to the ‘‘security-based swap dealer’’ definition,3 and (2) registered security-based swap dealers to comply with business conduct requirements in connection with certain transactions that have been arranged, negotiated or executed by U.S. personnel. • Regulation SBSR Rules 908(a)(1)(v) and 908(b)(5), which require regulatory reporting and public dissemination of security-based swap transactions ‘‘arranged, negotiated, or executed’’ using personnel located within the United States. • Exchange Act Rule 15Fb2–4, which requires, among other things, that each nonresident security-based swap dealer and nonresident major security-based swap participant (each as defined in Exchange Act Rule 15Fb2–4, collectively ‘‘nonresident SBS Entity’’) registering with the Commission provide a certification and opinion of counsel regarding its willingness and ability to provide the Commission with prompt access to its books and records and submit to onsite inspection and examination by the Commission, on Schedule F to Forms SBSE, SBSE–A and SBSE–BD, as appropriate, which applicants use to provide the certification. • Exchange Act Rule 15Fb6–2, and proposed Rule 18a–5, which together would require each registered SBS Entity, whether a U.S. or non-U.S. person, (1) to certify 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 security-based 1 Public Law 111–203, 124 Stat. 1376 (2010). Unless otherwise indicated, references to Title VII in this release are to Subtitle B of Title VII. 2 For purposes of this release, the term ‘‘U.S. personnel’’ means personnel located in a branch or office in the United States of an entity that is engaged in security-based swap activity, or by personnel of an agent of that entity. 3 The term ‘‘security-based swap dealer’’ is defined in Exchange Act Section 3(a)(71), and further defined by Exchange Act Rules 3a71–1 through 3a71–5. Section 3(a)(71)(D) provides that the Commission shall promulgate regulations to establish factors with respect to the making of any determination to exempt a security-based swap dealer that engages in a de minimis quantity of security-based swap dealing. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 swaps on its behalf is subject to a statutory disqualification and (2) to make and retain a background questionnaire to support this certification. As discussed in more detail below, market participants and other commenters have raised concerns regarding possible disruptive effects of the above requirements, suggesting that the requirements would create significant operational burdens and impose unwarranted costs. Such costs and operational burdens may be exacerbated by differences between the Commission’s rules in these areas and corresponding rules of the Commodity Futures Trading Commission (‘‘CFTC’’) in connection with the regulation of the swaps market. For these reasons, the Commission has determined that it is appropriate to reconsider its approach to these issues and consider whether those rules could be tailored in a manner that would continue to advance the objectives of Title VII while reducing associated costs and burdens and, where appropriate, minimizing differences from the approach taken by the CFTC. In developing these proposals, the Commission has consulted and coordinated with staff of the CFTC and the prudential regulators,4 in accordance with the consultation mandate of the Dodd-Frank Act.5 The Commission also has consulted and coordinated with foreign regulatory authorities through Commission staff participation in numerous bilateral and multilateral discussions with foreign regulatory authorities addressing the 4 The term ‘‘prudential regulator’’ is defined in Section 1a(39) of the Commodity Exchange Act (‘‘CEA’’), 7 U.S.C. 1a(39), and that definition is incorporated by reference in Section 3(a)(74) of the Exchange Act, 15 U.S.C. 78c(a)(74). Pursuant to the definition, the Board of Governors of the Federal Reserve System (‘‘Federal Reserve Board’’), the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Farm Credit Administration, or the Federal Housing Finance Agency (collectively, the ‘‘prudential regulators’’) is the ‘‘prudential regulator’’ of a security-based swap dealer or major security-based swap participant if the entity is directly supervised by that regulator. 5 Section 712(a)(2) of the Dodd-Frank Act provides in part that the Commission shall ‘‘consult and coordinate to the extent possible with the Commodity Futures Trading Commission and the prudential regulators for the purposes of assuring regulatory consistency and comparability, to the extent possible.’’ In addition, Section 752(a) of the Dodd-Frank Act provides in part that ‘‘[i]n order to promote effective and consistent global regulation of swaps and security-based swaps, the Commodity Futures Trading Commission, the Securities and Exchange Commission, and the prudential regulators . . . as appropriate, shall consult and coordinate with foreign regulatory authorities on the establishment of consistent international standards with respect to the regulation (including fees) of swaps.’’ PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 24207 regulation of OTC (over-the-counter) derivatives.6 Through these multilateral and bilateral discussions and the Commission staff’s participation in various international task forces and working groups, the Commission has gathered information about foreign regulatory reform efforts and their effect on and relationship with the U.S. regulatory regime. The Commission has taken and will continue to take these discussions into consideration in developing rules, forms, and interpretations for implementing Title VII of the Dodd-Frank Act. A. Application of Title VII to Transactions ‘‘Arranged, Negotiated, or Executed’’ Using Personnel Located Within the United States 1. Proposed Guidance, Exception, and Solicitation of Comment The Commission is taking a number of steps to address continuing concerns that have been raised regarding the various uses of an ‘‘arranged, negotiated, or executed’’ test in the cross-border application of Title VII. First, the Commission is proposing supplemental guidance regarding the types of activities by U.S. personnel that would—and would not—constitute ‘‘arranging’’ or ‘‘negotiating’’ securitybased swap transactions for purposes of tests that are used to implement a number of Title VII requirements in the cross-border context.7 Separately, the Commission is proposing two alternatives for a conditional exception from the ‘‘arranged, negotiated, or execute’’ test that forms part of the de minimis counting provisions of Exchange Act Rule 3a71–3. Both alternatives would provide an exception from the requirement that non-U.S. 6 Staff participates in a number of international standard-setting bodies and workstreams working on OTC derivatives reforms. For example, Commission staff participates in the Financial Stability Board’s Working Group on OTC Derivatives Regulation. Commission staff also participates in the International Organization of Securities Commissions (‘‘IOSCO’’)’s Committee on Derivatives, the joint Basel Committee on Banking Supervision (‘‘BCBS’’) and IOSCO Working Group on Margin Requirements’ Monitoring Group and participates in international working groups that impact OTC derivatives financial market infrastructures, such as CPMI–IOSCO joint working groups assessing legal and regulatory frameworks for central counterparties and trade repositories and examining central counterparty resilience and recovery. 7 The proposed guidance would address the application of ‘‘arranged’’ and ‘‘negotiated’’ criteria as used in connection with: Two provisions addressing the cross-border application of the de minimis exception to the ‘‘security-based swap dealer’’ definition, security-based swap dealer business conduct requirements, the regulatory reporting and public dissemination requirements of Regulation SBSR, and certain major security-based swap participant requirements. See part II, infra. E:\FR\FM\24MYP2.SGM 24MYP2 24208 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules persons count, against the thresholds associated with the de minimis exception, their security-based swap dealing transactions with non-U.S. counterparties that were arranged, negotiated, or executed by U.S. personnel.8 Finally, the Commission is soliciting comment as to whether to provide additional conditional exceptions from certain other requirements under Title VII that otherwise would apply to transactions ‘‘arranged, negotiated, or executed’’ by U.S. personnel.9 These actions—the proposed guidance, the proposed alternatives for a conditional exception from the ‘‘arranged, negotiated, or executed’’ de minimis counting provision, and the solicitation of comment regarding other possible exceptions from ‘‘arranged, negotiated, or executed’’ test used to implement Title VII—are intended to help appropriately tailor the application of Title VII to the U.S. market concerns raised by the transactions that do not involve U.S. counterparties but that nonetheless result from activity within the United States. In proposing this guidance and exception, the Commission is mindful that the various uses of ‘‘arranged, negotiated, or executed’’ criteria are intended to serve important interests related to avoiding competitive disparities and market fragmentation, and to public transparency.10 The use of the ‘‘arranged, negotiated, or executed’’ test in the context of the security-based swap dealer de minimis counting provision particularly plays an important role in helping to prevent entities from using booking practices to avoid registering as security-based swap dealers, despite being engaged in security-based swap dealing activity in the United States.11 The Commission’s proposals to mitigate the negative consequences potentially associated with the various uses of this type of test accordingly are designed to promote the important Title VII interests that the Commission advanced when it 8 See Exchange Act Rule 3a71–3(b)(1)(iii)(C). requests particularly address the use of ‘‘arranged, negotiated, or executed’’ or equivalent criteria in connection with: The application of the de minimis counting standard of Exchange Act Rule 3a71–3(b)(1)(iii)(A) to certain dealing transactions involving counterparties that are foreign branches of registered security-based swap dealers, regulatory reporting and public dissemination requirements in Rules 908(a)(1)(v) and 908(b)(5) of Regulation SBSR, security-based swap dealer business conduct standards that are not exempted by Exchange Act Rule 3a71–3(c), and major security-based swap requirements in Exchange Act Rule 3a67–10. 10 See notes 19 and 20, infra. 11 See note 18, infra. khammond on DSKBBV9HB2PROD with PROPOSALS2 9 Those VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 incorporated the test into the various cross-border rules. 2. Current Uses of ‘‘Arranged, Negotiated, or Executed’’ Criteria Exchange Act Rule 3a71–3 provides in part that, when determining whether non-U.S. persons will be deemed to be security-based swap dealers—and hence subject to the Title VII requirements applicable to security-based swap dealers—non-U.S. persons must count, against the applicable de minimis threshold, their security-based swap dealing transactions with non-U.S. counterparties that were ‘‘arranged, negotiated, or executed’’ by personnel within the United States.12 The rule separately requires that non-U.S. persons count dealing transactions with U.S. counterparties, and dealing transactions in which their performance under the security-based swap is guaranteed by a U.S. affiliate.13 12 See Exchange Act Rule 3a71–3(b)(1)(iii)(C). Rule 3a71–3(b) specifically addresses which crossborder security-based swap transactions must be counted against thresholds associated with the de minimis exception to the security-based swap dealer definition. Persons whose dealing activities exceed the de minimis thresholds will be required to register as security-based swap dealers once a compliance date is set. See Exchange Act Section 3(a)(71)(D); Exchange Act Rule 3a71–2. The requirement that non-U.S. persons count transactions that have been arranged, negotiated or executed in the United States does not apply to non-U.S. persons that are international organizations such as the International Monetary Fund, the International Bank for Reconstruction and Development and the United Nations. See Exchange Act Rule 3a71–3(a)(4)(iii) and Rule 3a71– 3(b)(1)(iii)(C). 13 Overall, Rule 3a71–3 provides that non-U.S. persons (other than conduit affiliates as defined in paragraph (a)(1) of the rule) must count against the de minimis thresholds the following types of security-based swap dealing transactions: (i) Transactions entered into with U.S. persons (other than certain transactions involving foreign branches of the U.S. person); (ii) guaranteed transactions in which the counterparty has rights of recourse against a U.S. person affiliated with the non-U.S. person; and (iii) transactions that are arranged, negotiated or executed by personnel of the non-U.S. person located in a U.S. branch or office, or by personnel of an agent of the non-U.S. person located in a U.S. branch or office. See Exchange Act Rule 3a71–3(b)(1)(iii). A non-U.S. person’s transactions with foreign branches of registered security-based swap dealers need not be counted so long as the transaction was not arranged, negotiated or executed by U.S. personnel on behalf of the foreign branch. See Exchange Act Rules 3a71–3(b)(1)(iii)(A) (counting standard) and 3a71–3(a)(3) (definition of ‘‘transaction conducted through a foreign branch’’); see also note 81, infra. The de minimis counting rule further provides that a person engaged in transactions that are required to be counted also must count certain transactions of its affiliates, other than affiliates that are registered as security-based swap dealers (and certain others). See Exchange Act Rules 3a71– 3(b)(2), 3a71–4. In addition, Rule 3a71–5, which provides an exception from the de minimis counting requirement for certain cleared anonymous PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Subsequent to incorporating the ‘‘arranged, negotiated, or executed’’ test into the de minimis counting standard, the Commission also incorporated the test into other rules addressing the cross-border application of Title VII. Regulation SBSR in part subjects transactions ‘‘arranged, negotiated, or executed’’ in the United States to regulatory reporting and public dissemination requirements.14 Registered security-based swap dealers also are subject to certain business conduct standards with respect to transactions arranged, negotiated or executed by personnel within the United States.15 The use of ‘‘arranged, negotiated, or executed’’ criteria as part of the de minimis counting test reflects the Commission’s view that a non-U.S. person that, as part of its dealing, ‘‘engages in market-facing activity using personnel located in the United States’’ would perform activities that fall within the security-based swap dealer definition ‘‘at least in part in the United States.’’ 16 When adopting that test and transactions, is not available to transactions arranged, negotiated or executed by U.S. personnel. As discussed below, the proposed Rule 3a71–5 exception would not be relevant to the transactions subject to that proposed exception. See note 100, infra. The proposed guidance regarding what activity would trigger the ‘‘arranged, negotiated, or executed’’ test would be relevant to the application of the Rule 3a71–5 exception, however. See note 90, infra. 14 In particular, Regulation SBSR Rule 908(a)(1)(v) requires regulatory reporting and public dissemination of transactions, connected with a non-U.S. person’s security-based swap dealing activity, that are arranged, negotiated or executed by the U.S. personnel of the non-U.S. person, or by U.S. personnel of the non-U.S. person’s agent. Rule 908(b)(5) further specifies that non-U.S. persons may be subject to regulatory reporting and public dissemination requirements in conjunction with security-based swap transactions arranged, negotiated or executed by U.S. personnel. See also note 80, infra. 15 Exchange Act Rule 3a71–3(c) provides that security-based swap dealers are not subject to certain business conduct standards with regard to their ‘‘foreign business,’’ a term that incorporates additional definitions of ‘‘U.S. business’’ and ‘‘transaction conducted through a foreign branch’’ (see Exchange Act Rules 3a71–3(a)(3), (8) and (9)). The rule in effect applies business conduct requirements to certain security-based swap transactions of foreign security-based swap dealers, and certain transactions conducted through foreign branches of U.S. security-based swap dealers, only when the transactions were arranged, negotiated or executed by U.S. personnel. See also note 79, infra. Equivalent criteria also have been incorporated into rules regarding the cross-border application of Title VII requirements applicable to major securitybased swap participants. See note 82, infra. 16 ‘‘Security-Based Swap Transactions Connected with a Non-U.S. Person’s Dealing Activity That Are Arranged, Negotiated, or Executed By Personnel Located in a U.S. Branch or Office or in a U.S. Branch or Office of an Agent; Security-Based Swap Dealer De Minimis Exception,’’ Exchange Act Release No. 77104 (Feb. 10, 2016), 81 FR 8598, 8621 (Feb. 19, 2016) (‘‘ANE Adopting Release’’); see also E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 addressing alternative views suggested by commenters, the Commission stated that it was appropriate to impose Title VII requirements on such activity given, among other things, the focus of the ‘‘security-based swap dealer’’ definition on a person’s dealing activity,17 the risk that non-U.S. persons engaged in security-based swap dealing activity in the United States could avoid regulation under Title VII,18 concerns about competitive disparities and possible market fragmentation absent such a test,19 and the role of public transparency.20 id. at 8622 (‘‘a non-U.S. person’s market-facing activity in the United States suggests the type of involvement in the U.S. security-based swap market that may raise financial contagion, customer protection, market integrity, and market transparency concerns’’). 17 The statutory definition of ‘‘security-based swap dealer’’ encompasses the following activities: (1) Holding oneself out as a dealer in security-based swaps, (2) making a market in security-based swaps; (3) regularly entering into security-based swaps with counterparties as an ordinary course of business for one’s own account; or (4) engaging in any activity causing oneself to be commonly known in the trade as a dealer in security-based swaps. See Exchange Act Section 3(a)(71)(A); see also ANE Adopting Release, 81 FR at 8614–15 & n.158 (further concluding that the appropriate analysis also considers whether a non-U.S. person is engaged in the United States in an amount above the de minimis thresholds in any of the activities set forth in the statutory security-based swap dealer definition or in the Commission’s further definition of that term, and that the final rule’s treatment of activity performed by an agent on behalf of a nonU.S. person in connection with its dealing activity was consistent with Exchange Act Section 30(c), which prohibits the application of Title VII requirements to a person that transacts a securitybased swap business ‘‘without the jurisdiction of the United States’’). 18 See id. at 8615. ‘‘As long as a non-U.S. person limited its dealing activity with U.S. persons to levels below the dealer de minimis thresholds, it could enter into an unlimited number of transactions connected with its dealing activity in the United States without being required to register as a security-based swap dealer.’’ Id. 19 See id. at 8616. The Commission stated that if financial groups using non-U.S. persons to carry out dealing business in the United States can ‘‘exit the Title VII regulatory regime without exiting the U.S. market with respect to their security-based swap dealing business with non-U.S.-person counterparties (including non-U.S.-person dealers),’’ those non-U.S.-person dealers likely would incur fewer costs related to their U.S. dealing activity than U.S.-person dealers transacting with the same counterparties, and that non-U.S. person counterparties likely would incur lower costs and obtain better pricing by entering into security-based swaps with non-U.S. dealers that are not required to register as security-based swap dealers. The Commission added that U.S.-person dealers would be at a disadvantage as financial groups use their non-registered dealers to cross-subsidize the dealing activity of affiliated registered security-based swap dealers that engage in dealing activity with U.S.person counterparties. See id. 20 See id. at 8615 (stating that aside from mitigating counterparty and operational risks, Title VII security-based swap dealer requirements also ‘‘advance other important policy objectives of security-based swap dealer regulation under Title VII, including enhancing counterparty protections VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 3. Commission Consideration of Alternatives Relying on Registered Broker-Dealers and Banks Before the Commission incorporated an ‘‘arranged, negotiated, or executed’’ test into the Rule 3a71–3(b)(1)(iii)(C) de minimis counting standard applicable to transactions involving two non-U.S. persons, certain commenters had expressed the view that other Exchange Act protections would obviate the need to use Title VII security-based swap dealer regulation to address regulatory concerns arising from non-U.S. persons’ dealing activity using U.S. personnel. Some commenters particularly depicted the concerns raised by such U.S. market-facing activity as relating primarily to counterparty protection, and argued that it would be duplicative to apply Title VII security-based swap dealer requirements to that activity—on the grounds that agents acting on behalf of non-U.S. persons engaged in securitybased swap dealing activity generally would be required to register as brokers and could be required to comply with relevant Exchange Act and Financial Industry Regulatory Authority (‘‘FINRA’’) requirements with respect to the security-based swap transactions that they intermediate.21 Commenters further sought to draw parallels between those circumstances and Exchange Act Rule 15a–6(a)(3), which provides an exemption from the broker-dealer registration requirement for a foreign broker-dealer that uses a registered broker-dealer to intermediate certain transactions.22 Certain commenters particularly suggested that non-U.S. persons should not be required to count the transactions at issue against the security-based swap dealer de and market integrity, increasing transparency, and mitigating risk to participants in the financial markets and the U.S. financial system more broadly’’). 21 See id. at 8617–18. Exchange Act Section 15(a) requires persons who engage in brokerage activities involving securities to register with the Commission unless they can avail themselves of an exception from the registration requirement. The definition of ‘‘broker’’ in Exchange Act Section 3(a)(10), generally encompasses persons engaged in the business of effecting transactions in securities for the account of others, but does not encompass banks that are engaged in certain activities, which may include a significant proportion of banks’ security-based swap dealing activity. See ANE Adopting Release, 81 FR at 8619. The definition of ‘‘security’’ in the Exchange Act (see Exchange Act Section 3(a)(10)) encompasses security-based swaps. The Commission has provided time-limited exemptive relief, expiring February 5, 2020, from the application of certain Exchange Act requirements related to securities activities involving security-based swaps. See Exchange Act Release No. 84991 (Jan. 25, 2019), 84 FR 863 (Jan. 31, 2019). 22 See ANE Adopting Release, 81 FR at 8618. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 24209 minimis thresholds subject to conditions such as: That the U.S. activity be conducted by a registered broker-dealer; or by a bank that complies with certain business conduct and books and records requirements; or that the non-U.S. person be registered in a jurisdiction that the Commission recognizes as comparable; or that the non-U.S. person be subject to Basel capital standards or be located in a G– 20 jurisdiction.23 In rejecting those alternatives, the Commission stated its belief that ‘‘the approach suggested by commenters is inconsistent with the comprehensive, uniform statutory framework established by Congress for the regulation of security-based swap dealers in Title VII.’’ 24 Significantly, in the Commission’s view, broker-dealer regulation does not apply to banks engaged in certain activities.25 The Commission also emphasized that there are distinctions between the regulatory requirements applicable to brokerdealers and those applicable to securitybased swap dealers.26 The Commission further explained that the absence of a U.S. activity trigger for de minimis threshold calculations would create a strong incentive to move booking for transactions with non-U.S. persons to booking entities that are non-U.S. persons.27 23 See id. at 8619. 24 Id. 25 Id. 26 Id. 27 Id. at 8620. The Commission also addressed one comment that suggested that allowing U.S. personnel to rely on broker-dealer requirements would increase efficiency by permitting such personnel to ‘‘be subject to a single set of regulatory compliance obligations with respect to both their underlying securities transactions and derivatives transactions.’’ In response, the Commission noted that such efficiencies would be unavailable to banks that are excepted from the ‘‘broker’’ definition for certain activities, that any such intra-firm efficiencies would be accompanied by competitive disparities, and that Exchange Act and FINRA rules applicable to broker-dealers may incorporate ‘‘similar requirements’’ once relevant exemptions terminate. See id. at 8620. The Commission further noted that concerns expressed by commenters could be mitigated in part by the availability of substituted compliance, which would permit non-U.S. person-dealers to comply with comparable foreign requirements as an alternative to complying with certain Title VII requirements. The Commission recognized, however, that substituted compliance may not be available for some requirements, and that the availability of substituted compliance would be contingent on the relevant foreign requirements being comparable to Title VII requirements. See id. at 8620. E:\FR\FM\24MYP2.SGM 24MYP2 24210 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 4. Reconsideration of the Use of ‘‘Arranged, Negotiated, or Executed’’ Criteria Although the ‘‘arranged, negotiated, or executed’’ test for de minimis counting has yet to be implemented, as the prerequisites for the registration of security-based swap dealers have not yet been finalized, the Commission believes that it is appropriate to reconsider the approach it adopted in 2016 in light of ongoing concern among market participants and other commenters, potential reconsideration by the CFTC of the cross-border application provisions under Title VII governing swap market participants and swaps activities, and regulatory developments in other jurisdictions. First, market participants have continued to raise several concerns about the use of ‘‘arranged, negotiated, or executed’’ criteria. They argue that requiring a non-U.S. dealer to identify transactions that it arranges, negotiates or executes using personnel located in the United States for purposes of compliance with the rule poses significant operational challenges.28 In addition, they express concern that foreign non-dealer counterparties will avoid interacting with personnel located in the United States if doing so would subject them to U.S. regulatory requirements, given the potential for duplication or conflict with foreign regulatory requirements and the concomitant burden.29 To address these concerns, they state that they will be required to ‘‘implement compliance 28 See Institute of International Bankers (‘‘IIB’’), ‘‘U.S. Supervision and Regulation of International Banks: Recommendations for the Report of the Treasury Secretary’’ (Apr. 28, 2017) at 64–65 (‘‘IIB Treasury Letter’’) (‘‘These systems will create barriers within entities and corporate groups based solely on the geographic location of personnel, to the detriment of globalized risk management and at increased cost to clients. Personnel-based tests are also cumbersome to administer, requiring entities to make seemingly arbitrary distinctions about permitted activities of personnel based on their geographic location at any time.’’); see also, e.g., Memorandum from Richard Gabbert, Counsel to Commissioner Hester M. Peirce, dated Nov. 30, 2018 (regarding a November 16, 2018 meeting with representatives of SIFMA), available at https:// www.sec.gov/comments/s7-05-14/s70514-4714190176653.pdf; Memorandum from Richard Gabbert, Counsel to Commissioner Hester M. Peirce, dated Nov. 30, 2018 (regarding a November 16, 2018 meeting with representatives of the International Swaps and Derivatives Association (ISDA)), available at https://www.sec.gov/comments/s7-0514/s70514-4714187-176649.pdf. 29 In particular, IIB noted concerns raised by the need under this test for foreign clients interacting with personnel located in the United States to ‘‘amend[ ] their trading documentation,’’ change their trading practices to account for public reporting requirements, and change their interactions with trading platforms and clearing houses in order to comply with the Commission’s rules. See id. at 64. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 systems that eliminate U.S.-located personnel from arranging, negotiating and executing the clients’ non-U.S. transactions,’’ which in turn will lead to market fragmentation, lower levels of security-based swap activity by foreign dealers in the U.S. market, and potentially lower levels of liquidity, globally and in the U.S. market.30 These market participants argue that the risk that such transactions present to the U.S. financial market (and thus the benefit of subjecting such activity to the Commission’s regulatory framework) is negligible and cannot justify the imposition of these requirements with their concomitant direct and indirect costs.31 The Treasury Department issued a report in October 2017 expressing the view that the Commission and the CFTC should ‘‘reconsider the implications’’ of applying Title VII rules—including the Commission’s de minimis counting rules as well as other Commission and CFTC requirements—to certain transactions ‘‘merely on the basis that U.S.-located personnel arrange, negotiate, or execute the swap, especially for entities in comparably regulated jurisdictions.’’ 32 Since the publication of this report, market participants have reiterated their concerns. For example, two commenters jointly restated their concern that the test ‘‘would discourage non-U.S. clients from interacting with U.S. personnel and impede risk management by expert trading personnel located in the U.S.’’ and impose significant operational burdens, even though ‘‘the benefits of applying additional requirements to 30 See id. at 65 (‘‘The increased costs of compliance and changes to market behavior will impede the ability of non-U.S. dealers to invest and participate in U.S. markets and could lead to the elimination of a significant number of jobs for U.S.located personnel.’’); see also Securities Industry and Financial Markets Association (‘‘SIFMA’’), ‘‘Capital Markets Report—Modernizing and Rationalizing Regulation of U.S. Capital Markets’’ (Aug. 10, 2017) at 115 (‘‘SIFMA Treasury Letter’’) (arguing that the test should be modified ‘‘[t]o encourage firms to hire U.S. front office personnel and promote global market liquidity’’). 31 See IIB Treasury Letter at 65 (‘‘The costs of these rules far exceed any risk-mitigating benefit. For non-U.S. transactions, the presence of U.S.located personnel in arranging, negotiating or executing does not result in risk flowing to the United States.’’); SIFMA Treasury Letter at 120 (‘‘The participation of U.S. personnel does not create risks justifying the imposition of Title VII requirements to these otherwise non-U.S. swaps.’’). 32 See Treasury Department, ‘‘A Financial System That Creates Economic Opportunities: Capital Markets’’ (Oct. 2017) at 133–36, available at https:// www.treasury.gov/press-center/press-releases/ Documents/A-Financial-System-Capital-MarketsFINAL-FINAL.pdf. PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 [transactions captured by the test] are limited.’’ 33 The Commission further is aware of concerns that application of the counting rule could require a financial group to register multiple non-U.S. entities as security-based swap dealers solely because each of those entities makes use of affiliated persons based in the United States to arrange, negotiate or execute security-based swap transactions with non-U.S. counterparties at levels exceeding the de minimis threshold. This may incentivize such groups to relocate U.S. personnel (or the activities performed by U.S. personnel) abroad to avoid triggering security-based swap dealer registration—a result that may raise issues similar to those raised by the commenters described above, including increased fragmentation to the detriment of U.S. market participants, which could harm U.S. markets and the U.S. economy. These concerns may be particularly acute for non-U.S. financial groups with dealers located in jurisdictions for which the Commission has not made a substituted compliance determination.34 Additionally, commenters have continued to urge the Commission to harmonize its rules under Title VII with those of the CFTC, as the CFTC has largely implemented its regulatory framework for swaps and many, if not most, market participants that transact security-based swaps also transact swaps pursuant to the CFTC’s rules.35 Market participants have noted potential inefficiencies that may arise from differences between the Commission’s and the CFTC’s rules and guidance, including the operational challenges that face a dealer’s trading desk that transacts in both swaps and security-based swaps, as different or overlapping requirements may apply 33 IIB and SIFMA, ‘‘SEC–CFTC Harmonization: Key Issues under Title VII of the Dodd-Frank Act’’ (June 21, 2018) at 5–6 (‘‘IIB/SIFMA 6/21/18 Letter’’), available at https://www.sec.gov/ comments/s7-05-14/s70514-3938974-167037.pdf. 34 Exchange Act Rule 3a71–6 permits registered non-U.S. security-based swap dealers to satisfy certain security-based swap dealer requirements— related to business conduct, supervision, chief compliance officers and trade acknowledgment and verification—by complying with foreign requirements that the Commission by order has determined are comparable to the analogous Title VII requirements. 35 See IIB/SIFMA 6/21/18 Letter at 1; see also Futures Industry Association, ‘‘Harmonization of SEC and CFTC Regulatory Frameworks,’’ (Nov. 29, 2018) at 9, available at https://www.sec.gov/ comments/s7-08-12/s70812-4722398-176717.pdf (encouraging the Commission and the CFTC to ‘‘jointly propose and adopt rules reflecting a harmonized and unified approach to the crossborder application of the swaps and security-based swaps provisions of Title VII’’). E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 depending on the specific product or products being traded in connection with a particular transaction.36 Commenters specifically have urged the Commission to amend its rules to be consistent with the CFTC’s approach, which would not require transactions arranged, negotiated, or executed in the United States to be counted toward the de minimis thresholds.37 In the alternative, these commenters have suggested that the Commission consider an exception for such activity to the extent that it is carried out by U.S. personnel employed by an affiliate that is either a registered security-based swap dealer or a registered broker-dealer and the affiliated foreign dealer is ‘‘subject to BCBS–IOSCO compliant capital and margin requirements.’’ 38 In October 2018, CFTC Chairman Giancarlo issued a document setting forth his views regarding possible modifications to the CFTC’s crossborder application of its swap regulations.39 Among other things, the Giancarlo White Paper suggests an approach to the regulation of transactions arranged, negotiated, or executed by personnel located in the United States on behalf of a foreign dealer.40 The Giancarlo White Paper suggests that these transactions generally should be subject to U.S. requirements but also suggests that it may be appropriate to defer to the foreign jurisdiction’s requirements if the foreign dealer is subject to regulation in a ‘‘Comparable Jurisdiction.’’ 41 Finally, in recent years, foreign jurisdictions have continued to implement their own regulatory reforms of the OTC derivatives markets, making it important to explore possible ways to try to reduce conflicts, gaps, inconsistencies and overlaps between Title VII requirements and corresponding foreign requirements. For example, according to the Financial Stability Board (‘‘FSB’’) OTC Derivatives Working Group’s 12th and 13th Progress Reports, only three FSB member jurisdictions had margin requirements for non-centrally cleared derivatives in force at the end of August 2016, while 16 FSB member jurisdictions had such 36 See 37 See IIB/SIFMA 6/21/18 Letter at 1. id. at 5. 38 Id. 39 See Chris Giancarlo, CFTC Chairman, ‘‘CrossBorder Swaps Regulation Version 2.0: A Risk-Based Approach with Deference to Comparable Non-U.S. Regulation’’ (Oct. 1, 2018) (‘‘Giancarlo White Paper’’), available at https://www.cftc.gov/sites/ default/files/2018-10/Whitepaper_CBSR100118.pdf. 40 See Giancarlo White Paper at 76. 41 See id. at 79, 80–81. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 margin requirements in force at the end of September 2018.42 In light of the foregoing, the Commission believes that it is appropriate to reconsider its approach to these transactions before foreign dealers and other foreign market participants are required to comply with requirements based on ‘‘arranged, negotiated, or executed’’ criteria, as used in Exchange Act Rule 3a71–3 and elsewhere to implement Title VII in the cross-border context, to enable the Commission to avoid or mitigate any negative effects that the test may create if firms were required to comply with it as adopted. First, the Commission preliminarily believes that it is appropriate to provide guidance to market participants regarding the types of market-facing activity that the ‘‘arranged’’ or ‘‘negotiated’’ criteria would not encompass. Second, the Commission preliminarily believes that it is possible that an alternative approach may better balance any risks posed by such transactions to the U.S. market against the market-fragmentation and operational risks of subjecting foreign dealers engaged in such transactions to the full range of Title VII regulatory requirements. Moreover, reconsideration of the Commission’s approach would be consistent both with its statutory obligation to consult and coordinate with the CFTC and with both agencies’ recent efforts to harmonize more closely, to the extent possible, their respective requirements under Title VII.43 Finally, reconsideration would permit the Commission to evaluate whether the implementation of regulatory reforms in foreign jurisdictions may address some of the concerns that led the Commission to adopt the various uses of the ‘‘arranged, negotiated, or executed’’ test in connection with the cross-border application of Title VII. For all of these reasons, the Commission preliminarily believes that it is appropriate to provide guidance about the scope of the ‘‘arranged’’ or 42 See FSB, ‘‘OTC Derivatives Market Reforms: Twelfth Progress Report on Implementation’’ (Jun. 29, 2017) at 2, available at https://www.fsb.org/2017/ 06/otc-derivatives-market-reforms-twelfth-progressreport-on-implementation; and FSB, ‘‘OTC Derivatives Market Reforms: Thirteenth Progress Report on Implementation’’ (Nov. 19, 2018) at 1, available at https://www.fsb.org/wp-content/ uploads/P191118-5.pdf. 43 See ‘‘Chief Compliance Officer Duties and Annual Report Requirements for Futures Commission Merchants, Swap Dealers, and Major Swap Participants,’’ 83 FR 43510 (Aug. 27, 2018); ‘‘Capital, Margin, and Segregation Requirements for Security-Based Swap Dealers and Major SecurityBased Swap Participants and Capital Requirements for Broker-Dealers,’’ Exchange Act Release No. 84409 (Oct. 11, 2018), 83 FR 53007 (Oct. 19, 2018). PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 24211 ‘‘negotiated’’ criteria. The proposed guidance is designed to provide market participants with additional information regarding the types of conduct that would trigger the Title VII requirements that use those criteria, and hence provide improved clarity regarding the types of market-facing conduct that would not be subject to the relevant Title VII requirements. Separately, the Commission is proposing an exception from the application of the ‘‘arranged, negotiated, or executed’’ test in connection with the de minimis counting requirement in Exchange Act Rule 3a71–3(b)(1)(iii)(C), and is soliciting comment regarding possible additional exceptions to the use of those criteria in Exchange Act Rules 3a71–3(b)(1)(iii)(A) (with regard to certain dealing transactions involving certain foreign branches of a registered security-based swap dealer), 3a71–3(c) (with regard to the cross-border application of security-based swap dealer business conduct requirements), 3a67–10 (with regard to the cross-border application of security-based swap dealer business conduct requirements), and Regulation SBSR Rules 908(a)(1)(v) and 908(b)(5) (relating to cross-border application of regulatory reporting and public dissemination requirements). The Commission preliminarily believes that the proposed exception to Rule 3a71–3(b)(1)(iii)(C) would reduce the market fragmentation and operational risks associated with the ‘‘arranged, negotiated, or executed’’ test, provide a possible framework for reducing divergence from the CFTC in connection with the treatment of these transactions, and appropriately recognize the role that foreign regulation may play in addressing certain risks that may arise from these transactions, while protecting the important interests that underpin that use of the ‘‘arranged, negotiated, or executed’’ test. B. Proposed Guidance and Amendments Related to the Certification and Opinion of Counsel Requirements In 2015, the Commission adopted rules regarding the registration of SBS Entities.44 These rules include certain requirements specific to nonresident SBS Entities. In particular, Exchange Act Rule 15Fb2–4 requires, among other things, that each nonresident SBS Entity registering with the Commission certify that it can, as a matter of law, and will provide the Commission with prompt access to its books and records and 44 See Registration Process for Security-Based Swap Dealers and Major Security-Based Swap Participants, Exchange Act Release No. 75611 (Aug. 5, 2015), 80 FR 48964 (Aug. 14, 2015) (‘‘Registration Adopting Release’’). E:\FR\FM\24MYP2.SGM 24MYP2 24212 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules submit to on-site inspection and examination by the Commission.45 It also requires that the nonresident SBS Entity obtain and provide to the Commission an opinion of counsel to support this certification.46 As the Commission stated when adopting these requirements, significant elements of an effective regulatory regime are the Commission’s abilities to access registered SBS Entities’ books and records and to inspect and examine the operations of registered SBS Entities.47 The certification and opinion of counsel requirements adopted by the Commission are designed to provide assurances that the Commission is able to access directly the books and records of a nonresident SBS Entity as provided under Sections 15F and 17 of the Exchange Act and the Commission’s rules thereunder, and conduct on-site inspections and examinations of those records.48 In support of these endeavors, the Commission has proposed recordkeeping rules that would require an SBS Entity to furnish promptly to a representative of the Commission legible, true, complete, and current copies of those records of the SBS Entity that are required to be preserved by the rules, or any other records of the SBS Entity subject to examination or required to be made or maintained pursuant to the Exchange Act that are requested by a representative of the Commission.49 The Commission is proposing guidance to Exchange Act Rule 15Fb2– 4 regarding: (i) The foreign laws that must be covered by the certification and opinion of counsel; (ii) the scope of the books and records that are the subject of the certification and opinion of counsel, namely that the certification and opinion of counsel need only address: (1) Records that relate to the ‘‘U.S. business’’ (as defined in Exchange Act Rule 3a71–3(a)(8)) of the nonresident SBS Entity; and (2) financial records necessary for the Commission to assess the compliance of the nonresident SBS Entity with capital and margin 45 See 17 CFR 240.15Fb2–4(c)(1)(i). 17 CFR 240.15Fb2–4(c)(1)(ii). As discussed below, the Commission has incorporated these certification and opinion of counsel requirements into Exchange Act Rule 3a71–6, which governs applications for substituted compliance. 47 See Registration Adopting Release, 80 FR at 48981. 48 See id. 49 See paragraph (j) of Exchange Act Rule 17a–4, and paragraph (g) of proposed Exchange Act Rule 18a–6 (Recordkeeping and Reporting Requirements for Security-Based Swap Dealers, Major SecurityBased Swap Participants, and Broker-Dealers; Capital Rule for Certain Security-Based Swap Dealers, Exchange Act Release No. 71958 (Apr. 17, 2014), 79 FR 25194 (May 2, 2014) (‘‘Recordkeeping and Reporting Proposing Release’’)). khammond on DSKBBV9HB2PROD with PROPOSALS2 46 See VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 requirements under the Exchange Act and rules promulgated by the Commission thereunder, if these capital and margin requirements apply to the nonresident SBS Entity; (iii) predication of a firm’s certification and opinion of counsel, as necessary, on the nonresident SBS Entity obtaining prior consent of the persons whose information is or will be included in the books and records to allow the firm to promptly provide the Commission with direct access to its books and records and to submit to on-site inspection and examination; (iv) applicability of the certification and opinion of counsel to contracts entered into prior to the date on which the SBS Entity submits an application for registration pursuant to Section 15F(b); and (v) whether the certification and opinion of counsel submitted by a nonresident SBS Entity can take into account approvals, authorizations, waivers or consents provided by local regulators. The Commission is also proposing to amend Exchange Act Rule 15Fb2–1 to provide additional time for a nonresident SBS Entity to submit the certification and opinion of counsel required under Exchange Act Rule 15Fb2–4(c)(1). The Commission is proposing to add new paragraphs (d)(2) and (e)(2) to Exchange Act Rule 15Fb2– 1. Proposed paragraph (d)(2) would provide that a nonresident applicant that is unable to provide the certification and opinion of counsel required under Rule 15Fb2–4(c)(1) shall be conditionally registered, for up to 24 months after the compliance date for Rule 15Fb2–1, if the applicant submits a Form SBSE–C and a Form SBSE, SBSE–A, or SBSE–BD, as appropriate, that is complete in all respects but for the failure to provide the certification and the opinion of counsel required by Rule 15Fb2–4(c)(1). Proposed paragraph (e)(2) would provide that if a nonresident SBS Entity became conditionally registered in reliance on paragraph (d)(2), the firm would remain conditionally registered until the Commission acts to grant or deny ongoing registration, and that if the nonresident SBS Entity fails to provide the certification and opinion of counsel within 24 months of the compliance date for Rule 15Fb2–1, the Commission may institute proceedings to determine whether ongoing registration should be denied. As indicated in the Registration Adopting Release, once an SBS Entity is conditionally registered, all of the Commission’s rules applicable to registered SBS Entities apply to the entity and it must comply with them. The guidance regarding the certification and opinion of counsel PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 requirements would also be relevant to Exchange Act Rule 3a71–6, which allows SBS Entities to comply with certain requirements under Section 15F of the Exchange Act through substituted compliance.50 Paragraph (c)(2)(ii) of Rule 3a71–6 provides that substituted compliance applications by parties or groups of parties—other than foreign financial regulatory authorities—must include the certification and opinion of counsel associated with the SBS Entity registration requirements as if the party were subject to that requirement at the time of the request. Recognizing the expected time necessary for the Commission to consider substituted compliance applications it receives, the Commission welcomes submissions of such applications with respect to any of its final rules for which substituted compliance is potentially available. Consistent with this position, the Commission wishes to clarify that, during the pendency of this proposal, the Commission will consider all substituted compliance applications submitted by parties or groups of parties who are not foreign regulatory authorities even when not accompanied by a certification or opinion of counsel.51 This clarification, however, does not mean that the Commission would grant any application for substituted compliance submitted by such parties or groups of parties before the required certification and opinion of counsel are filed. C. Proposed Amendment to Commission Rule of Practice 194 Exchange Act Section 15F(b)(6) makes it unlawful for an SBS Entity to permit an associated person 52 who is subject to a statutory disqualification 53 to effect or 50 Exchange Act Rule 3a71–6. Commission’s rules do not require that applications submitted by foreign regulatory authorities be accompanied by a certification or opinion of counsel. Exchange Act Rule 3a71–6(c). 52 Exchange Act Section 3(a)(70) generally defines the term ‘‘person associated with’’ an SBS Entity to include (i) any partner, officer, director, or branch manager of an SBS Entity (or any person occupying a similar status or performing similar functions); (ii) any person directly or indirectly controlling, controlled by, or under common control with an SBS Entity; or (iii) any employee of an SBS Entity. See 15 U.S.C. 78c(a)(70). The definition generally excludes persons whose functions are solely clerical or ministerial. Id. The definition of ‘‘person’’ under Exchange Act Section 3(a)(9) is not limited to natural persons, but extends to both entities and natural persons. 15 U.S.C. 78c(a)(9) (‘‘The term ‘person’ means a natural person, company, government, or political subdivision, agent, or instrumentality of a government.’’). 53 The term statutory disqualification as used in Exchange Act Section 15F(b)(6) parallels the definition of statutory disqualification in Exchange Act Section 3(a)(39)(A)–(F), 15 U.S.C. 78c(a)(39)(A)–(F). See ‘‘Applications by SecurityBased Swap Dealers or Major Security-Based Swap 51 The E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules be involved in effecting security-based swaps on behalf of the SBS Entity if the SBS Entity knew, or in the exercise of reasonable care should have known, of the statutory disqualification, ‘‘[e]xcept to the extent otherwise specifically provided by rule, regulation, or order of the Commission.’’ 54 In this regard, Exchange Act Section 15F(b)(6) gives the Commission the discretion to determine, by rule, regulation or order, that a statutorily disqualified associated person may effect or be involved in effecting security-based swaps on behalf of an SBS Entity, and/or to establish rules concerning the statutory prohibition in Exchange Act Section 15F(b)(6).55 As outlined below, the Commission has taken several actions with respect to the prohibition in Section 15F(b)(6) of the Exchange Act in its implementation of Title VII of the Dodd-Frank Act.56 khammond on DSKBBV9HB2PROD with PROPOSALS2 1. Registration Requirements for SBS Entities On August 5, 2015, the Commission adopted registration requirements for SBS Entities.57 Several aspects of the adopted rules relate to the statutory prohibition in Exchange Act Section 15F(b)(6). In particular, the Commission adopted Rule 15Fb6–2(a), which requires that an SBS Entity certify electronically on its Form SBSE–C that it neither knows, nor in the exercise of reasonable care should have known, that any person associated with that Participants for Statutorily Disqualified Associated Persons To Effect or Be Involved in Effecting Security-Based Swaps,’’ Exchange Act Release No. 84858 (Dec. 19, 2018), 84 FR 4906 (Feb. 19, 2019) (‘‘Rule of Practice 194 Adopting Release’’). 54 15 U.S.C. 78o–10(b)(6). The statutory prohibition in Exchange Act Section 15F(b)(6) is substantially the same as the statutory provision for a swap dealer or major swap participant (collectively ‘‘Swap Entities’’) in Section 4s(b)(6) of the CEA, 7 U.S.C. 6s(b)(6). 55 See id. 56 On June 15, 2011, the Commission issued an order that, among other things, granted temporary relief from compliance with Exchange Act Section 15F(b)(6) for persons subject to a statutory disqualification who were, as of July 16, 2011, associated with an SBS Entity and who effected or were involved in effecting security-based swaps on behalf of such SBS Entity and allowed such persons to continue to be associated with an SBS Entity until the date upon which rules adopted by the Commission to register SBS Entities became effective. See ‘‘Temporary Exemptions and Other Temporary Relief, Together With Information on Compliance Dates for New Provisions of the Securities Exchange Act of 1934 Applicable to Security-Based Swaps,’’ Exchange Act Release No. 64678 (June 15, 2011), 76 FR 36287, 36301, 36305– 07 (Jun. 22, 2011) (‘‘June 2011 Temporary Exemptions Order’’); see also ‘‘Order Extending Certain Temporary Exemptions and a Temporary and Limited Exception Related to Security-Based Swaps,’’ Exchange Act Release No. 75919 (Sept. 15, 2015), 80 FR 56519 (Sep. 18, 2015) (extending the June 2011 Temporary Exemptions Order). 57 See Registration Adopting Release. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 SBS Entity who effects or is involved in effecting security-based swaps on its behalf is subject to a statutory disqualification, unless otherwise specifically provided by rule, regulation or order of the Commission.58 In addition, Rule 15Fb6–2(b) requires that, to support the certification required by Rule 15Fb6–2(a), the Chief Compliance Officer of an SBS Entity, or his or her designee, must review and sign a questionnaire or application for employment—that the SBS Entity is required to obtain pursuant to the relevant recordkeeping rule—which has been executed by each associated person who is a natural person and who effects or is involved in effecting security-based swaps on behalf of the SBS Entity. The questionnaire or application for employment, in turn, would serve to verify that the associated natural person is not subject to statutory disqualification.59 The Commission also included within the Registration Adopting Release guidance on the scope of the phrase ‘‘involved in effecting security-based swaps,’’ as that phrase is used in Exchange Act Section 15F(b)(6).60 Specifically, the Commission stated that the term ‘‘involved in effecting securitybased swaps’’ generally means engaged in functions necessary to facilitate the SBS Entity’s security-based swap business, including, but not limited to the following activities: (1) Drafting and negotiating master agreements and confirmations; (2) recommending security-based swap transactions to counterparties; (3) being involved in executing security-based swap transactions on a trading desk; (4) pricing security-based swap positions; (5) managing collateral for the SBS Entity; and (6) directly supervising persons engaged in the above-described activities.61 2. Commission Rule of Practice 194 On December 19, 2018, the Commission adopted Rule of Practice 194, which provides, among other things, a process by which an SBS Entity could apply to the Commission to permit an associated person who is a natural person and who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on behalf of the SBS Entity.62 Rule of Practice 194 establishes a 58 See 17 CFR 240.15Fb6–2(a) and Form SBSE–C (17 CFR 249.1600c). 59 See 17 CFR 240.15Fb6–2(b). 60 See Registration Adopting Release, 80 FR at 48974, 48976. 61 See id. at 48976. 62 See Rule of Practice 194 Adopting Release, 84 FR at 4906–47; see also 17 CFR 240.194(a)–(i). PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 24213 process by which the Commission can assess on a case-by-case basis whether to grant relief from the statutory prohibition in Exchange Act Section 15F(b)(6). Rule of Practice 194 excludes associated persons that are not natural persons (defined herein as ‘‘associated person entities’’) from the statutory disqualification prohibition in Exchange Act Section 15F(b)(6).63 As the Commission explained when adopting Rule of Practice 194, granting an automatic exclusion for associated person entities could reduce potential disruptions to the business of SBS Entities that could lead to possible market disruption.64 The exclusion for associated person entities also results in consistency with the CFTC’s approach with respect to the statutory prohibition for Swap Entities as set forth in CEA Section 4s(b)(6).65 3. Proposed Rule of Practice 194(c)(2) As the Commission noted in adopting Rule of Practice 194, there may be instances where it is consistent with the public interest to permit an associated person who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on behalf of an SBS Entity.66 As discussed in greater detail below, the Commission is now proposing to amend Rule of Practice 194, by including proposed paragraph (c)(2), to exclude an SBS Entity, subject to certain limitations, from the prohibition in Exchange Act Section 15F(b)(6) with respect to an associated person who is a natural person who (i) is not a U.S. person and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person. D. Proposed Exchange Act Rule 18a–5 In April 2014, the Commission proposed recordkeeping, reporting, and notification requirements applicable to SBS Entities, securities count requirements applicable to certain security-based swap dealers, and 63 See 17 CFR 240.194(c); see also Rule of Practice 194 Adopting Release, 84 FR at 4906. 64 See Rule of Practice 194 Adopting Release, 84 FR at 4911. 65 See 7 U.S.C. 6s(b)(6). The CFTC, with respect to statutorily disqualified associated persons of swap entities, limits the definition of associated persons of swap entities to natural persons. See 17 CFR 1.3. As a result, the prohibition in CEA Section 4s(b)(6) applies to natural persons (not entities) associated with a swap entity. 66 See Rule of Practice 194 Adopting Release, 84 FR at 4908. E:\FR\FM\24MYP2.SGM 24MYP2 24214 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules additional recordkeeping requirements applicable to broker-dealers to account for their security-based swap and swap activities.67 The proposed requirements were modeled on existing broker-dealer requirements.68 The Commission received a number of comments in response to these proposals.69 Separately, the Commission proposed rules governing the cross-border treatment of recordkeeping and reporting requirements with respect to SBS Entities.70 The Commission received comments in response to these cross-border proposals as well.71 In the Recordkeeping and Reporting Proposing Release, the Commission, among other things, proposed new Exchange Act Rule 18a–5 (patterned after Exchange Act Rule 17a–3—the recordkeeping rule for registered brokerdealers) to establish recordkeeping standards for firms without a prudential regulator that are registered with the Commission only as an SBS Entity (and not as a broker-dealer as well) and SBS Entities for which there is a prudential regulator (collectively, ‘‘stand-alone and bank SBS Entities’’).72 As part of that rulemaking, the Commission proposed to require that an SBS Entity make and keep current a questionnaire or application for employment for each associated person who is a natural person, that includes the associated person’s identifying information, business affiliations for the past ten years, relevant disciplinary history, relevant criminal record, and place of business, among other things (hereinafter the ‘‘questionnaire requirement’’).73 The Commission also proposed a definition of the term ‘‘associated person’’ that would include persons associated with an SBS Entity as defined under Section 3(a)(70) of the Exchange Act.74 One commenter requested that the Commission modify the rule for foreign SBS Entities so that the questionnaire requirement would khammond on DSKBBV9HB2PROD with PROPOSALS2 67 See Recordkeeping and Reporting Proposing Release. 68 See id., 79 FR at 25196–97 (providing the rationale for modeling the proposed requirements on the relevant broker-dealer requirements). 69 The comment letters are available at https:// www.sec.gov/comments/s7-05-14/s70514.shtml. 70 See ‘‘Cross-Border Security-Based Swap Activities; Re-Proposal of Regulation SBSR and Certain Rules and Forms Relating to the Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants,’’ Exchange Act Release No. 69490 (May 1, 2013), 78 FR 30968 (May 23, 2013) (‘‘Cross-Border Proposing Release’’). 71 The comment letters are available at https:// www.sec.gov/comments/s7-02-13/s70213.shtml. 72 See Recordkeeping and Reporting Proposing Release, 79 FR at 25205. 73 Paragraphs (a)(10)(i) and (b)(8)(i) of proposed Rule 18a–5. 74 Id. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 not apply to associated persons who effect or are involved in effecting security-based swap transactions with non-U.S. persons or foreign branches.75 In a subsequent letter, this commenter also requested that the rule be modified to exclude from the questionnaire requirement an associated person employed or located in a non-U.S. branch, office, or affiliate of the firm in circumstances where: (1) Applicable non-U.S. law prohibits the firm from conducting background checks on the associated person and consent does not cure the prohibition or may not be a condition of employment; (2) the associated person is not subject to a statutory disqualification that the firm actually knows about; (3) the associated person does not effect and is not involved in effecting security-based swaps with U.S. counterparties on behalf of the firm; and (4) the associated person complies with applicable registration and licensing requirements in the jurisdiction(s) where he or she effects or is involved in effecting security-based swaps on behalf of the firm.76 As indicated in Exchange Act Rule 15Fb6–2, the questionnaire requirement is intended to serve as a basis for a background check of the associated person who is a natural person and who effects or is involved in effecting security-based swap transactions on the SBS Entity’s behalf to verify that the person is not subject to statutory disqualification.77 The Commission preliminarily believes that it is appropriate to provide flexibility with respect to the questionnaire requirement as applied to associated persons of stand-alone and bank SBS Entities. As discussed above in Section I.C.3., the Commission is proposing to add paragraph (c)(2) to Rule of Practice 194 in order to provide an exclusion from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to an associated person who is not a U.S. person and does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person, subject to certain conditions. Consistent with this proposal, the 75 See SIFMA letter to Kevin M. O’Neill, dated Sep. 5, 2014 (‘‘SIFMA 9/5/14 Letter’’) at 9, available at https://www.sec.gov/comments/s7-05-14/s7051410.pdf. 76 See Letter from IIB and SIFMA, dated Aug. 26, 2016 (‘‘IIB/SIFMA 8/26/16 Letter’’), available at https://www.sec.gov/comments/s7-05-14/s7051418.pdf. 77 See 17 CFR 240.15Fb6–2(b). PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Commission is also proposing modifications to proposed Rule 18a–5 to provide that a stand-alone or bank SBS Entity is not required to make and keep current a questionnaire or application for employment executed by an associated person if the SBS Entity is excluded from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to such associated person. The Commission also is proposing modifications to proposed Rule 18a–5 to address situations where the laws of a non-U.S. jurisdiction in which an associated person is employed or located may prohibit a stand-alone or bank SBS Entity from receiving, creating or maintaining a record of any of the information mandated by the questionnaire requirement.78 The modifications would apply with respect to an associated person who is not a U.S. person and would provide that the stand-alone or bank SBS Entity need not record certain information mandated by the questionnaire requirement with respect to that person if the receipt of that information, or the creation or maintenance of records reflecting such information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located. The Commission emphasizes, however, that every SBS Entity must still comply with Section 15F(b)(6) of the Exchange Act and Rule 15Fb6–2 with respect to every associated person who effects or is involved in effecting security-based swaps on behalf of the SBS Entity absent an exclusion from the statutory disqualification prohibition in Section 15F(b)(6) of the Exchange Act. II. Proposed Guidance Regarding the Meaning of ‘‘Arranged’’ and ‘‘Negotiated’’ in Connection With the Cross-Border Application of Title VII A. Provision of ‘‘Market Color’’ 1. Earlier Guidance In adopting the Exchange Act Rule 3a71–3(b)(1)(iii)(C) ‘‘arranged, negotiated, or executed’’ de minimis counting standard applicable to transactions between two non-U.S. counterparties, the Commission addressed the types of activity that would—and would not—trigger that portion of the de minimis test. The Commission subsequently relied on the analysis underpinning that use of the ‘‘arranged, negotiated, or executed’’ test within the de minimis counting standard when the Commission adopted final rules incorporating those criteria 78 See paragraphs (a)(10)(iii) and (b)(8)(iii) of Rule 18a–5, as proposed. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 into the cross-border application of security-based swap dealer business conduct provisions,79 and into the cross-border application of Regulation SBSR’s regulatory reporting and public dissemination provisions.80 The Commission previously incorporated those criteria into the portion of the security-based swap dealer de minimis exception related to transactions involving counterparties that are foreign branches of registered security-based swap dealers,81 and also has 79 Exchange Act Rule 3a71–3(c) excuses a registered security-based swap dealer from compliance with certain security-based swap dealer business conduct standards with respect to its foreign business. That rule incorporates a standard, via underlying definitions of ‘‘foreign business,’’ ‘‘U.S. business’’ and ‘‘transaction conducted through a foreign branch’’ (see Exchange Act Rules 3a71–3(a)(3), (8) and (9)), that uses ‘‘arranged, negotiated, and executed’’ terminology that functionally is equivalent to the ‘‘arranged, negotiated, or executed’’ standard incorporated by Rule 3a71–3(b)(1)(iii)(C). In adopting Rule 3a71–3(c), the Commission particularly stated that the business conduct rules should apply to transactions that a foreign securitybased swap dealer ‘‘arranges, negotiates, or executes using personnel located in a U.S. branch or office,’’ both to ‘‘preserve customer protections for U.S. counterparties that would expect to benefit from the protection afforded to them by Title VII’’ and to ‘‘help maintain market integrity by subjecting the large number of transactions that involve relevant dealing activity in the United States to these requirements, even if both counterparties are nonU.S. persons.’’ See Business Conduct Standards for Security-Based Swap Dealers and Major SecurityBased Swap Participants, Exchange Act Release No. 77617 (Apr. 14, 2016), 81 FR 29960, 30065 (May 13, 2016) (‘‘Business Conduct Adopting Release’’). The Commission further stated that the business conduct rules need not be applied to a U.S. dealer’s transactions that have been arranged, negotiated or executed through a foreign branch with a non-U.S. counterparty (or with another foreign branch counterparty), reasoning that ‘‘Title VII is concerned with the protection of U.S. markets and participants in those markets, and it remains our view that imposing these requirements on a U.S.person dealer when it arranges, negotiates, or executes through its foreign branch with another foreign branch or a non-U.S. person would produce little or no benefit to U.S. market participants.’’ Id., 81 FR at 30066. 80 In incorporating an ‘‘arranged, negotiated, or executed’’ standard into Regulation SBSR Rules 908(a)(1)(v) and 908(b)(5), regarding the crossborder application of regulatory reporting and public dissemination requirements, the Commission stated that ‘‘[c]onsistent with its territorial application of Title VII requirements, the Commission believes that, when a foreign dealing entity uses U.S. personnel to arrange, negotiate, or execute a transaction in a dealing capacity, that transaction occurs at least in part within the United States and is relevant to the U.S. security-based swap market,’’ and that ‘‘[a]s the Commission has stated previously, declining to apply Title VII requirements to security-based swaps of foreign dealing entities that use U.S. personnel to engage in ANE activity would have the effect of allowing such entities ‘to exit the Title VII regulatory regime without exiting the U.S. market.’ ’’ See Regulation SBSR—Reporting and Dissemination of SecurityBased Swap Information, Exchange Act Release No. 78321 (Jul. 14, 2016), 81 FR 53546, 53590–91 (footnote omitted). 81 Exchange Act Rule 3a71–3(b)(1)(iii)(A) generally requires non-U.S. persons to count VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 incorporated those criteria into Title VII rules regarding major security-based swap participants.82 In discussing the ‘‘arranged, negotiated, or executed’’ test in the context of the de minimis counting standard applicable to transactions involving two non-U.S. counterparties, the Commission explained that the terms ‘‘arrange’’ and ‘‘negotiate’’ were transactions with U.S. counterparties for purposes of the de minimis thresholds, but carves out transactions that constitute ‘‘transactions conducted through a foreign branch of the counterparty.’’ The definition of ‘‘transaction conducted through a foreign branch’’ in part requires that the transaction be ‘‘arranged, negotiated, and executed on behalf of the foreign branch solely by persons located outside the United States.’’ See Exchange Act Rule 3a71– 3(a)(3)(i)(B). When the Commission adopted that foreign branch-related de minimis counting requirement, the Commission concluded that the definition of ‘‘transaction conducted through a foreign branch’’ identifies the functions associated with foreign branch activity ‘‘in a manner that appropriately focuses the exclusion for non-U.S. person’s transactions toward situations in which the branch performs the core dealing functions outside the United States.’’ See ‘‘Application of ‘Security-Based Swap Dealer’ and ‘Major Security-Based Swap Participant’ Definitions to Cross-Border SecurityBased Swap Activities; Republication’’ Exchange Act Release No. 72472 (Jun. 25, 2014), 81 FR 47278, 47322 (Aug. 12, 2014) (‘‘Cross-Border Adopting Release’’). That is consistent with the analysis underlying the use of ‘‘arranged, negotiated, or executed’’ test in connection with the de minimis counting provisions of Rule 3a71–3(b)(1)(iii)(C), related to transactions between two non-U.S. persons, which was intended to prevent the conduct of an unregistered security-based swap dealing business in the United States. See notes 18 and 19, supra. Unless specified otherwise, references to the application of the ‘‘arranged, negotiated, or executed’’ test in the context of de minimis counting refer both to the Rule 3a71–3(b)(1)(iii)(C) test regarding dealing transactions involving two non-U.S. persons, and the Rule 3a71–3(b)(1)(iii)(A) test regarding dealing transactions involving a counterparty that is the foreign branch of a registered security-based swap dealer. 82 The rule implementing the ‘‘major securitybased swap participant’’ definition generally requires consideration of a non-U.S. person’s security-based swap positions with U.S. counterparties, but excludes positions that arise from transactions conducted through a foreign branch of a counterparty that is a registered security-based swap dealer. See Exchange Act Rule 3a67–10(b)(3)(i). This rule incorporates the Rule 3a71–3 definition of ‘‘transaction conducted through a foreign branch,’’ which makes use of ‘‘arranged, negotiated, and executed’’ criteria. In adopting that provision, the Commission noted its consistency with the security-based swap dealer de minimis counting provision related to transactions with counterparties that are foreign branches of registered security-based swap dealers. See CrossBorder Adopting Release, 79 FR at 47343. U.S. and non-U.S. major security-based swap participants similarly are excluded from having to comply with certain business conduct requirements in connection with transactions conducted through a foreign branch, based on that same definition. See Exchange Act Rule 3a67–10(d). In adopting that provision, the Commission noted its consistency with the cross-border application of security-based swap dealer business conduct rules. See Business Conduct Adopting Release, 81 FR at 30069. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 24215 intended to ‘‘indicate market-facing activity of sales or trading personnel in connection with a particular transaction, including interactions with counterparties or their agents.’’ 83 The Commission added that the term ‘‘execute’’ in the rule ‘‘refers to the market-facing act that, in connection with a particular transaction, causes the person to become irrevocably bound under the security-based swap under applicable law.’’ 84 The Commission further distinguished market-facing activity by sales and trading personnel from activity by personnel who perform backoffice functions that generally do not involve direct contact with counterparties. In doing so, the Commission identified types of activities that would not require counting of transactions against the de minimis thresholds, including: Processing trades and other back-office activities; designing security-based swaps without engaging in marketfacing activity in connection with specific transactions; preparing underlying documentation including negotiating master agreements (‘‘as opposed to negotiating with the counterparty the specific economic terms of a particular security-based swap transaction’’); and clerical and ministerial tasks such as entering executed transactions on a non-U.S. person’s books.85 In addition, the Commission stated that it generally viewed the test as requiring the counting of transactions arranged, negotiated or executed by, for example, ‘‘personnel assigned to, on an ongoing or temporary basis, or regularly working in a U.S. branch or office.’’ 86 83 See ANE Adopting Release, 81 FR at 8622. id. The Commission added that the test also applies when U.S. persons direct other persons to arrange, negotiate or execute particular securitybased swaps. ‘‘In other words, sales and trading personnel of a non-U.S. person who are located in the United States cannot avoid application of this rule by simply directing other personnel to carry out dealing activity[.]’’ The Commission further noted that the test includes transactions in which personnel located in a U.S. branch or office ‘‘specify the trading strategy or techniques carried out through algorithmic trading or automated electronic execution of security-based swaps, even if the related server is located outside the United States.’’ Id. at 8623. 85 See id. at 8622. 86 Id. at 8623. The Commission separately explained that the rule applies to security-based swap transactions that the non-U.S. person, in connection with its dealing activity, arranges, negotiates or executes, using personnel located in a U.S. branch or office, even when such transactions are in response to inquiries from a nonU.S. person counterparty outside business hours in the counterparty’s jurisdiction and occur pursuant to product, credit and market risk parameters set by 84 See E:\FR\FM\24MYP2.SGM Continued 24MYP2 24216 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules On the other hand, the counting standard does not extend to transactions arranged, negotiated or executed ‘‘by personnel assigned to a foreign office if such personnel are only incidentally in the United States,’’ such as while attending an educational or industry conference.87 khammond on DSKBBV9HB2PROD with PROPOSALS2 2. Proposed Supplemental Guidance The Commission is proposing to provide supplemental guidance regarding the types of market-facing activity that would—and would not— constitute ‘‘arranging’’ or ‘‘negotiating’’ a security-based swap for purposes of the relevant Title VII requirements.88 For the reasons discussed below, this proposed guidance would take the position that a person may provide ‘‘market color’’ in specific circumstances without that activity constituting ‘‘arranging’’ or ‘‘negotiating’’ security-based swap transactions for purposes of the ‘‘arranged, negotiated, or executed’’ test 89 that is used in connection with de minimis counting,90 the cross-border management personnel outside the United States. See id. at 8623–24. 87 See id. at 8623. The Commission stated that this should mitigate the burdens of determining whether a particular transaction needs to be counted. See id. More generally, the Commission emphasized that the rule would avoid the need for the non-U.S. person to monitor the location of its counterparty’s personnel or receive associated representations. See id. at 8621–22; see also id. at 8612–13 (discussing prior Commission proposal to address the crossborder application of the security-based swap dealer definition via a test that would have required counting of transactions that were solicited, negotiated, executed or booked in the United States by or on behalf of either counterparty). 88 The Commission does not believe there is a reason to revisit its prior guidance regarding the scope of the term ‘‘execute’’; the Commission therefore is not providing any additional guidance regarding the interpretation of that term. 89 Certain provisions applying Title VII securitybased swap requirements in the cross-border context, such as the de minimis counting test in Rule 3a71–3(b)(2)(iii), incorporate ‘‘arranged, negotiated, or executed’’ terminology. Other crossborder provisions make use of the definition of ‘‘transaction conducted through a foreign branch’’ in Rule 3a71–3(a)(3), which incorporates the functionally equivalent ‘‘arranged, negotiated, and executed’’ terminology. This proposed guidance would apply to both uses of that terminology, as found in the rules discussed in notes 90 through 93, infra, and accompanying text. 90 In connection with de minimis counting, this proposed guidance would apply to: (1) Exchange Act Rule 3a71–3(b)(1)(iii)(C), which requires the counting of security-based swap dealing transactions between non-U.S. counterparties that have been ‘‘arranged, negotiated, or executed’’ in the United States; (2) Exchange Act Rule 3a71– 3(b)(2), which addresses the counting of affiliate transactions described by paragraph (b)(1) (which includes the (b)(1)(iii)(C) requirement); (3) Exchange Act Rule 3a71–5, which excepts certain cleared anonymous transactions from the individual counting requirement of paragraph (b)(1) of Rule 3a71–3 and from the affiliate counting VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 application of business conduct rules,91 regulatory reporting and public dissemination requirements,92 and major security-based swap participant rules.93 For purposes of this guidance, the term ‘‘market color’’ means background information regarding pricing or market conditions associated with particular instruments or with markets more generally, including information regarding current or historic pricing, volatility or market depth, and trends or predictions regarding pricing, volatility or market depth, as well as other types of information reflecting market conditions and trends. The Commission believes that the earlier guidance, which focused on the presence of market-facing activities by U.S. personnel, provides a useful starting point for identifying the types of U.S. activity that should trigger the various uses of the ‘‘arranged, negotiated, or executed’’ test. The Commission nonetheless has come to recognize that there are significant variations among the types of marketfacing activity that may occur in connection with security-based swap transactions, and that U.S. personnel in some circumstances may engage in activity that, although market-facing, reasonably may not be characterized as ‘‘arranging’’ or ‘‘negotiating’’ a securitybased swap transaction—as those terms are understood generally and in the context of the relevant regulatory interests. On one hand, U.S. personnel may actively market security-based swaps to counterparties on behalf of a firm. Those types of market-facing activity by U.S. personnel appropriately would trigger the various uses of the ‘‘arranged, negotiated, or executed’’ test, because otherwise those activities could cause a firm to engage in a dealing business in requirement of paragraph (b)(2), but is unavailable to transactions ‘‘arranged, negotiated, or executed’’ by U.S. personnel; and (4) the de minimis counting requirement of Exchange Act Rule 3a71– 3(b)(1)(iii)(A), requiring the counting of dealing transactions between dealing transactions involving a foreign branch of a registered security-based swap dealer and a non-U.S. counterparty (or another foreign branch). The regulatory interests underlying the Rule 3a71–3(b)(1)(iii)(C) and Rule 3a71– 3(b)(1)(iii)(A) uses of arranged, negotiated and/or executed criteria to implement the de minimis counting requirement are similar (as are, derivatively, the Rule 3a71–3(b)(2) and Rule 3a71– 5 uses). See note 81, supra. 91 See note 79, supra (addressing Exchange Act Rule 3a71–3(c) business conduct exclusion). 92 See note 80, supra (addressing Regulation SBSR Rules 908(a)(1)(v) and 908(b)(5), regarding the cross-border application of regulatory reporting and public dissemination requirements). 93 See note 82, supra (addressing cross-border major security-based swap participant provisions of Exchange Act Rules 3a67–10(b)(3)(i) and 3a67– 10(d)). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 the United States without being subject to applicable Title VII requirements. At the other end of the spectrum, U.S. personnel may engage in limited market-facing activity such as providing market-related information to counterparties in response to inquiries, or providing market data or other information that helps to set the price associated with a security-based swap transaction that otherwise is negotiated by non-U.S. personnel. When the remaining market-facing activity connected with a transaction occurs outside the United States, such limited market-facing activity by U.S. personnel standing alone does not trigger the concerns and regulatory interests that underpin the various uses of the ‘‘arranged, negotiated, or executed’’ test in connection with the transaction.94 Accordingly, the earlier reliance on the presence of market-facing activity may not sufficiently recognize circumstances in which the marketfacing activity of U.S. personnel is so limited that it would not implicate the regulatory interests underlying the relevant Title VII requirements.95 For those reasons, the Commission is proposing guidance that U.S. personnel who provide market color in connection with security-based swap transactions— 94 Such limited U.S. market-facing activity of that type seems unlikely to implicate the regulatory interests underlying the various uses of the ‘‘arranged, negotiated, or executed’’ test for purposes of the security-based swap dealer de minimis counting requirement, or for purposes of the regulatory reporting and public dissemination requirements of Regulation SBSR, because the activity of the U.S. personnel standing alone would not appear comprehensive enough to pose a significant risk of allowing an entity to exit the Title VII regulatory regime without exiting the U.S. market. That type of limited U.S. market-facing activity further seems unlikely to implicate the regulatory interests underlying the use of the ‘‘arranged, negotiated, or executed’’ test for purposes of the security-based swap dealer business conduct requirements for the same reason, and also because non-U.S. counterparties reasonably may not expect Title VII business conduct requirements to apply merely as the result of receiving technical information from U.S. personnel. 95 When the Commission adopted the ‘‘arranged, negotiated, or executed’’ counting rule applicable to transactions between two non-U.S. counterparties, the Commission stated that ‘‘to the extent that personnel located in a U.S. branch or office engage in market-facing activity normally associated with sales and trading, the location of those personnel would be relevant, even if the personnel are not formally designated as sales persons or traders.’’ See ANE Adopting Release, 81 FR at 8622 n.224. Just as the ‘‘arranged, negotiated, or executed’’ test reasonably may be triggered by U.S. personnel that are not formally designated as sales persons or traders when they engage in arranging or negotiating activity, the Commission does not believe that the test invariably must be triggered by the presence of U.S. personnel who are designated as sales persons or traders when their activity is too limited to implicate the principles underlying the uses of the test. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 in the form of information or data as described above, including marketrelated information regarding the pricing of particular instruments or background information regarding general market conditions—do not trigger the Title VII requirements that use an ‘‘arranged, negotiated, or executed’’ test, when the following circumstances exist: • No client responsibility—The U.S. personnel have not been assigned, and do not otherwise exercise client responsibility in connection with the transaction. • No transaction-linked compensation—The U.S. personnel do not receive compensation based on or otherwise linked to the completion of transactions on which the ‘‘U.S. personnel’’ provide market color.96 In those circumstances, U.S. personnel may provide information to counterparties, pursuant to the proposed guidance, regarding pricing or market conditions associated with particular instruments or with markets more generally, including information regarding current or historic market pricing, volatility or market depth, as well as general trends or predictions regarding those matters and information related to risk management. This should help promote the efficient use of such U.S. personnel without raising concerns that such activity constitutes ‘‘arranging’’ or ‘‘negotiating’’ a securitybased swap transaction for purposes of the requirements under Title VII that incorporate the ‘‘arranged, negotiated, or executed’’ test—i.e., requirements related to de minimis counting, the cross-border application of business conduct and regulatory reporting and public dissemination requirements, and the cross-border major security-based swap participant rules.97 96 The Commission understands that it is commonplace for firms to account for the overall profit or loss of the firm, or of a particular division or office, in calculating bonuses. The language regarding ‘‘compensation based on or otherwise linked to the completion of transactions’’ is not intended to extend to such profit-sharing arrangements or other compensation practices that account for aggregated profits, as such arrangements would not be expected to incentivize U.S. personnel in a similar manner or to a similar degree as compensation that is directly linked to the success of individual transactions. 97 Nothing in this guidance would restrict the ability of firms to risk manage their security-based swap positions on a global basis. Separately, in circumstances where the proposed guidance allows for market-facing activity by U.S. personnel without triggering the ‘‘arranged, negotiated, or executed’’ standard, the federal securities laws, including applicable antifraud provisions, still may apply to that activity depending on the particular facts and circumstances. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Under the guidance, U.S. persons could provide market-based information in connection with security-based swap transactions—including but not limited to information regarding pricing, depth of market, and anticipated demand—in support of non-U.S. persons who actually arrange, negotiate and execute those transactions on behalf of their clients. B. Solicitation of Comments The Commission is soliciting comment regarding all aspects of this proposed guidance, including whether other approaches would be appropriate—as a supplement to or in lieu of the proposed guidance—to address particular types of marketfacing activity that may not raise the concerns that underpinned the ‘‘arranged, negotiated, or executed’’ test. Commenters particularly are invited to address the following: 1. To what extent do non-U.S. persons that engage in security-based swap dealing activity with non-U.S. counterparties make use of U.S. personnel in a market-facing capacity in connection with that dealing activity? What specific types of market-facing activities do such U.S. personnel conduct? 2. Would the proposed guidance provide a workable approach for distinguishing between market-facing activity that falls within the scope of ‘‘arranging’’ and ‘‘negotiating’’ securitybased swap transactions and that which does not? Would a different type of Commission action (e.g., exemptive relief or some other approach) be more appropriate? 3. Would the proposed guidance appropriately apply to the use of the ‘‘arranged, negotiated, or executed’’ test in the context of de minimis counting, the cross-border application of regulatory reporting and public dissemination, and the cross-border application of business conduct requirements? If not, in which circumstances would the proposed guidance be more or less appropriate when applied to particular requirements? 4. Would the use of U.S. personnel solely to provide ‘‘market color’’ to the counterparties of non-U.S. dealers— such as by providing information regarding pricing or market conditions, including information regarding current or historic pricing, volatility or market depth, and trends or predictions regarding those matters—raise concerns regarding the uniform application of the Title VII security-based swap dealer regime and/or the ability of firms to conduct an unregistered security-based PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 24217 swap dealing business in the United States? Commenters particularly are invited to address any gaps in regulation that may result from guidance that excludes from the test transactions involving such market-facing activity in the United States from the ambit of the various requirements that make use of the ‘‘arranged, negotiated, or executed’’ test, including, inter alia, issues associated with the failure to apply security-based swap dealer requirements to those U.S. marketfacing activities as a result of excluding certain transactions from the de minimis counting requirement. 5. Would the proposed guidance effectively distinguish the types of market-facing activity that appropriately should fall within the ‘‘arranged, negotiated, or executed’’ test from other types of market-facing activity? Alternatively, are different or additional standards appropriate to distinguish between those two types of activity? For example, should the ‘‘arranged, negotiated, or executed’’ test encompass activity by U.S. personnel that involves arranging or finalizing non-pricing aspects of the transaction, such as underlier, notional amounts or tenor, or otherwise play more than a peripheral role with regard to the completion of the transaction? In regard to these issues, commenters are invited to discuss current practices regarding the use of U.S. personnel to provide limited information such as ‘‘market color,’’ including the nature of the information provided, the time of day such information is provided, and the underliers typically associated with that type of activity. 6. Is the proposed distinction between market-facing activity that involves transaction-based compensation of U.S. personnel and market-facing activity that does not involve transaction-based compensation workable in light of existing compensation practices associated with such activity by U.S. personnel? Are there typical compensation practices that would raise interpretive issues regarding the application of the ‘‘arranged, negotiated, or executed’’ test under the guidance? Commenters particularly are requested to discuss firm-specific or other typical arrangements for compensating U.S. personnel of foreign dealing entities in circumstances where the U.S. personnel have some involvement with the firm’s transactions with non-U.S. counterparties. Commenters further are requested to address whether firms may restructure their compensation arrangements to rely on this type of guidance, and whether the resulting alternative compensation practices E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24218 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules would incentivize U.S. personnel in a similar manner or to a similar degree as compensation that is linked directly to the success of individual transactions. 7. What other market practices, if any, should the Commission address in any guidance it provides regarding the scope of ‘‘arranging’’ and ‘‘negotiating’’ for purposes of the test? 8. If the Commission separately were to adopt rules providing for an exception from the application of the ‘‘arranged, negotiated, or executed’’ test to the security-based swap dealer de minimis counting requirement, pursuant to one of the alternatives being proposed (see part III, infra), in what circumstances would non-U.S. persons have an incentive to rely on the proposed guidance? For example—and depending on the contours of this guidance—is it possible that such guidance primarily would be used by a non-U.S. person that is not located in a ‘‘listed jurisdiction’’? 98 Is it possible that such guidance primarily would be used by a non-U.S. person that does not have a U.S. broker-dealer affiliate, or that would prefer to use non-affiliated personnel to engage in such marketfacing activities? 9. Would the proposed guidance obviate the need for the more general exception to the ‘‘arranged, negotiated, or executed’’ test that the Commission is proposing (related to de minimis counting of transactions involving two non-U.S. counterparties)? 10. Are the limits to the proposed guidance sufficient to prevent non-U.S. counterparties that interact with such U.S. personnel from incorrectly presuming that the entire Title VII regulatory framework would apply to the transaction? If not, what additional limits could be appropriate to control that possibility? 11. Could the availability of the proposed market color guidance potentially affect the security-based swap booking practices of U.S. or nonU.S. dealing entities? For example, if this type of guidance were available, would a non-U.S. person that currently uses U.S. personnel to engage in dealing transactions with U.S. and non-U.S. counterparties have the incentive to prospectively book transactions with U.S. counterparties into a registered affiliate, so the non-U.S. person may avoid registering as a security-based swap dealer while still being able to use U.S. personnel to facilitate its dealing 98 See part III.B.5, infra (addressing ‘‘listed jurisdiction’’ condition to availability of proposed conditional exception from use of ‘‘arranged, negotiated, or executed’’ test in connection with security-based swap dealer de minimis counting provisions). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 transactions with non-U.S. counterparties? If so, would bifurcating dealing books in this way limit the liquidity available to U.S. market participants? III. Proposed Exception to Rule 3a71–3 A. Purpose The Commission continues to believe that the use of the ‘‘arranged, negotiated, or executed’’ test appropriately applies the security-based swap dealer de minimis counting requirement in connection with transactions involving two non-U.S. counterparties. At the same time, based on the concerns that have been expressed regarding that use of the test, the Commission recognizes that in some circumstances this use of the test, among other possible outcomes, may cause financial groups to relocate U.S. personnel or relocate the activities performed by U.S. personnel, to avoid security-based swap dealer registration, and that such results have the potential to increase fragmentation and harm U.S. market participants and the U.S. economy.99 To address that concern, the Commission is soliciting public comment on two alternative proposals for a conditional exception from the use of the ‘‘arranged, negotiated, or executed’’ test in connection with that part of the de minimis counting requirement, set forth in Exchange Act Rule 3a71–3(b)(1)(iii)(C).100 These 99 See part I.A.4, supra. The potential ramifications of this use of the ‘‘arranged, negotiated, or executed’’ test are linked in part to whether market participants in practice would relocate personnel or functions due to this use of the test, as well as to the actual effects of such relocations. Alternative practices by market participants—such as compliance with the counting requirement with no relocation of personnel or functions—may mitigate those ramifications and/or produce other ramifications. Similarly, it is possible that relocation of personnel or functions may not lead to the fragmentation and other consequences that have been described. The Commission is soliciting comment regarding the uses of U.S. personnel in connection with the transactions at issue, and the potential ramifications of not providing this type of exception. See parts III.D.1, III.D.2, infra. 100 The proposed conditional exception to Rule 3a71–3(b)(1)(iii)(C) would have ramifications to the affiliate counting provisions of paragraph (b)(2) of Rule 3a71–3. Paragraph (b)(2) requires persons engaged in security-based swap transactions described in paragraph (b)(1) of the rule—which includes the transactions at issue—also to count certain dealing transactions of affiliates under common control, including transactions described in paragraph (b)(1)(iii) (unless, pursuant to Rule 3a71–4, the affiliate itself is a registered securitybased swap dealer or a person in the process of registering as a security-based swap dealer). As a result, transactions subject to the proposed Rule 3a71–3(b)(1)(iii)(C) exception further would not be subject to the paragraph (b)(2) affiliate transaction counting requirement. Also, Exchange Act Rule 3a71–5 excepts certain cleared anonymous transactions from the PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 alternative proposals are intended to protect the policy goals associated with security-based swap dealer regulation by focusing relevant requirements on the arranging, negotiating and executing activity occurring in the United States, while avoiding potentially problematic consequences—such as relocation of personnel outside the United States that may lead to fragmentation that reduces market access available to persons within the United States—that otherwise may be associated with that aspect of the counting requirement.101 The first alternative proposal (Alternative 1) conditionally would permit a non-U.S. person not to count the security-based swap dealing transactions at issue against the de minimis thresholds so long as all arranging, negotiating or executing activity within the United States is performed by personnel associated with an affiliated entity that is registered with the Commission as a securitybased swap dealer. The second alternative proposal (Alternative 2) would be broader than the first alternative by also allowing for activity individual counting requirement of paragraph (b)(1) of Rule 3a71–3 (which includes the (b)(1)(iii)(C) requirement) and from the affiliate counting requirement of paragraph (b)(2), but the Rule 3a71– 5 exception is unavailable to transactions arranged, negotiated, or executed by U.S. personnel. Because the proposed exception to (b)(1)(iii)(C) would prevent the transactions at issue from triggering either the (b)(1) or (b)(2) counting requirements, the Rule 3a71–5 exception would not be relevant to those transactions. 101 In practice, the proposed exception would affect the set of dealing transactions that a non-U.S. person must include within the 12-month lookback for determining whether it can avail itself of the de minimis exception from the ‘‘security-based swap dealer’’ definition. Exchange Act Rule 3a71–2(a)(1) determines the availability of the de minimis exception based on whether a person’s securitybased swap dealing activity over the prior 12 months is below the applicable notional threshold, and the cross-border counting provisions of Exchange Act Rule 3a71–2(b) (including the ‘‘arranged, negotiated, or executed’’ provision of Rule 3a71–3(b)(1)(iii)(C)) partially determine which positions must be counted pursuant to Rule 3a71– 2(a)(1). The structure of the de minimis counting provisions also would make this proposed exception available to non-U.S. persons that are registered as security-based swap dealers. In particular, Exchange Act Rule 3a71–2(c) (in conjunction with paragraph (a) of that rule) provides that a security-based swap dealer may apply to withdraw its registration if it has been registered for at least 12 months and its dealing activity over the preceding 12 months is below the applicable de minimis thresholds. Because the proposed exception from the ‘‘arranged, negotiated, or executed’’ counting requirement of Rule 3a71– 3(b)(1)(iii)(C) would cause the transactions at issues not to be counted against the applicable thresholds, a registered security-based swap dealer could rely on the exception to make use of the withdrawal provision. The Commission is soliciting comment regarding whether the proposed exception should be modified to make it unavailable to registered security-based swap dealers. See part III.D.10, infra. E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules in the United States to be performed by personnel associated with an affiliate that is registered with the Commission as a broker (or, as with the first alternative, that is registered as a security-based swap dealer). As discussed in further detail below, under either alternative the non-U.S. person and the affiliated registered entity would have to comply with certain conditions related to business conduct, trade acknowledgments, portfolio reconciliation, disclosure, records, and financial responsibility. The proposed exception may be particularly relevant, for example, for financial groups that use one or more non-U.S. dealing entities to transact (i.e., book transactions directly) with Canadian or Latin American counterparties, but that manage the trading or sales relationships with those counterparties out of an affiliated entity in the United States—whether for customer convenience, for more direct access to the market in which the underliers are traded, or for operational or other reasons. Under the proposed exception, transactions that are booked by the foreign dealing entity but arranged, negotiated or executed by personnel associated with an affiliated registered entity in the U.S. generally would not be counted toward the foreign entity’s de minimis threshold, and the entity accordingly would not be required to register as a security-based swap dealer by virtue of those transactions.102 Antifraud provisions of the federal securities laws and certain relevant Title VII requirements would continue to apply to the transaction— e.g., transaction reporting and the prohibitions in Section 5(e) of the Securities Act of 1933 and Section 6(l) of the Exchange Act with respect to transactions with counterparties that are not eligible contract participants (‘‘ECPs’’). The Commission preliminarily believes that this approach would appropriately balance the application of Title VII requirements to any risks presented by the activity while reducing the likelihood of market fragmentation that otherwise might arise if the foreign dealing entity were subject to requirements that are not tailored to the associated risks. As discussed below, although the proposed exception would subject 102 Other dealing activity of that foreign entity, such entering into security-based swap transactions with U.S. person counterparties, may cause the entity to exceed the de minimis threshold and thus have to register as a security-based swap dealer. The foreign entity also would be subject to provisions requiring it to count certain dealing transactions of its affiliates. See notes 13 and 100, supra (addressing other prongs of the cross-border de minimis counting test). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 arranging, negotiating and executing activity in the United States to certain Title VII requirements, the exception would not fully apply certain other requirements, such as financial responsibility requirements, in connection with security-based swaps resulting from that U.S. activity. On balance, the Commission preliminarily believes that the conditions that have been proposed for the exception would mitigate any potential negative consequences that otherwise might arise from tailoring the security-based swap dealer requirements that apply to those activities. In making this proposal, the Commission is mindful that U.S.-based dealing entities may use this type of exception to structure their booking practices to manage the application of Title VII to their security-based swap dealing business—e.g., by booking dealing transactions with non-U.S. counterparties into their non-U.S. affiliates, to reduce the application of Title VII security-based swap dealer requirements to those transactions. The Commission is soliciting comment regarding the potential effect of the proposed exception on booking practices, and further address those potential consequences as part of the economic analysis.103 B. Alternative 1—First Alternative Proposed Conditional Exception The Commission is proposing to amend Exchange Act Rule 3a71–3 to incorporate a conditional exception from the ‘‘arranged, negotiated, or executed’’ counting standard under conditions that would apply a focused alternative method of regulation to the transactions at issue. The proposal recognizes that certain arranging, negotiating or executing activity involving U.S. personnel warrants Title VII oversight, but also recognizes that U.S. activity in connection with transactions between two non-U.S. persons may not implicate the same types of risks to U.S. persons and to U.S. markets as other types of dealing activity in the United States. The proposed exception hence is intended to more closely align the application of Title VII oversight to the U.S. market concerns associated with such transactions between non-U.S. persons. Proposed new paragraph (d) of Exchange Act Rule 3a71–3 would incorporate this conditional 103 See parts III.D.9 (solicitation of comment), VII.A.7 (estimate of persons that may rely on proposed exception) and VII.B.1 (addressing costs and benefits of the proposed amendment), infra. PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 24219 exception.104 Under Alternative 1, this paragraph (d) would except a non-U.S. person from having to count transactions arranged, negotiated or executed in the United States for purposes of the security-based swap dealer definition, subject to the following conditions: • All such arranging, negotiating and executing activity in the United States would be conducted by personnel located in a U.S. branch or office in their capacity as associated persons of a majority-owned affiliate that is registered with the Commission as a security-based swap dealer; • That registered security-based swap dealer would comply with specific requirements applicable to securitybased swap dealers as if the entity were a counterparty to the non-U.S. person’s counterparties; • The Commission could access relevant books, records and testimony of the non-U.S. person, and the registered security-based swap dealer would be required to maintain records related to the transaction; • The non-U.S. person would consent to service of process for any civil action brought by or proceeding before the Commission; • The registered security-based swap dealer would provide certain disclosures to the counterparties of the non-U.S. person; and • The non-U.S. person would be subject to the margin and capital requirements of a ‘‘listed jurisdiction.’’ For the reasons set forth below, the Commission preliminarily believes that an exception that incorporates those elements would apply security-based swap dealer requirements to arranging, negotiating or executing activity in the United States, allow for Commission access to related books and records, and eliminate incentives to alter transaction booking practices to avoid securitybased swap dealer registration, in a manner that appropriately addresses the scope of the regulatory concerns raised by this type of U.S. activity.105 104 Apart from adding a conditional exception as new paragraph (d) of Rule 3a71–3, proposed Alternative 1 (as well as proposed Alternative 2) would amend the introductory language of paragraph (b)(1)(iii)(C) of Rule 3a71–3, to specify that the ‘‘arranged, negotiated, or executed’’ counting requirement is subject to the conditional exception. 105 The conditional exception would address only the Rule 3a71–3(b)(1)(iii)(C) requirement that nonU.S. persons count transactions that involve dealing activity in the United States. Rule 3a71–3 would continue to require non-U.S. persons to count all of their security-based swap dealing transactions with U.S. counterparties, and all of their security-based swap dealing transactions that are guaranteed by their U.S. affiliates. E:\FR\FM\24MYP2.SGM 24MYP2 24220 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules The Commission preliminarily believes that this type of arranging, negotiating or executing conduct associated with security-based swap transactions also would generally constitute ‘‘broker’’ activity under the Exchange Act. Entities engaged in such conduct accordingly would be required to register with the Commission as brokers unless they can avail themselves of an exception from broker status, such as the exception for bank brokerage activity, or an exemption from broker registration.106 1. U.S. Activity Conducted by a Majority-Owned Registered SecurityBased Swap Dealer Affiliate khammond on DSKBBV9HB2PROD with PROPOSALS2 Under Alternative 1, the arranging, negotiating and executing activity by U.S. personnel that otherwise would need to be counted but for the exception must be conducted by such personnel in their capacity as persons associated with an entity that is: (a) Registered as a security-based swap dealer, and (b) a majority-owned affiliate 107 of the nonU.S. person relying on the exception.108 By requiring that the U.S. arranging, negotiating or executing activity be conducted by U.S. personnel in their capacity as associated persons of a registered security-based swap dealer, the proposed condition would help ensure that the U.S. activity would be subject to key security-based swap dealer requirements under Title VII, including requirements regarding supervision, books and records, trade acknowledgments and verifications, and business conduct, among other things.109 106 See generally note 21, supra (addressing application of ‘‘broker’’ and ‘‘security’’ definitions in the security-based swap context). 107 Proposed paragraph (a)(10) would define the term ‘‘majority-owned affiliate’’ to encompass a relationship whereby one entity directly or indirectly owns a majority interest in another, or where a third party directly or indirectly owns a majority interest in both, where ‘‘majority interest’’ reflects voting power, the right to sell, or the right to receive capital upon dissolution or the contribution of capital. 108 See Alternative 1—proposed paragraph (d)(1)(i) of Rule 3a71–3. Exchange Act Section 3(a)(70) defines the term ‘‘person associated with a security-based swap dealer or major security-based swap participant’’ to encompass, inter alia, partners, officers, directors, employees and persons controlling, controlled by, or under common control with a security-based swap dealer or major security-based swap participant. Exchange Act Rule 3a71–2(e) provides for the voluntary registration of a person that chooses to be a security-based swap dealer, regardless of whether that person engages in dealing activity that exceeds the de minimis thresholds. 109 The relevant transactions also would remain subject to regulatory reporting and public dissemination requirements under Title VII. See note 52, supra. But see part III.D.10, infra (soliciting comment regarding whether to make a similar VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 The registered security-based swap dealer must be a majority-owned affiliate of the non-U.S. person relying on the exception. As discussed above, concerns have been expressed that the existing counting standard could lead financial groups to relocate their U.S.based personnel to avoid triggering security-based swap dealer registration. To the extent that such groups make use of this exception in lieu of relocating U.S.-based personnel, the Commission would expect those groups to use affiliated entities to satisfy the conditions of the exception. Moreover, requiring that the arranging, negotiating or executing activity be performed by U.S. personnel associated with an affiliated registered security-based swap dealer would help guard against the risk that a financial group may seek to attenuate its responsibility for any shortcomings in the registered securitybased swap dealer’s compliance with the requirements applicable to registered security-based swap dealers.110 The proposal makes use of a majority-ownership standard to achieve this goal—rather than other measures of affiliation such as a common control standard or alternative ownership thresholds—to help ensure that the financial group has a significant interest in the registered security-based swap dealer, including its compliance with the requirements applicable to securitybased swap dealers (in addition to the non-U.S. person’s interest in the registered security-based swap dealer complying with the conditions of the exception), to help promote appropriate compliance and oversight practices.111 Taken as a whole, those elements differentiate the proposal from the approach commenters previously suggested that would have excused the counting of such transactions when the relevant activity in the United States is performed by a registered broker-dealer or by a U.S. bank. When the Commission considered but rejected that type of approach in adopting the ‘‘arranged, negotiated, or executed’’ counting requirement, the Commission noted that the broker-dealer framework exception available in connection with the application of the ‘‘arranged, negotiated, or executed’’ test in connection with the regulatory reporting and public dissemination requirements of Regulation SBSR). 110 The registered security-based swap dealer’s non-compliance with the conditions of the exception would make the exception unavailable to the non-U.S. person. 111 The Commission has used a majorityownership standard as part of other rules implementing Title VII, including in a rule providing that inter-affiliate security-based swaps need not be considered in determining whether a person is a security-based swap dealer. See Exchange Act Rule 3a71–1(d). PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 does not apply to banks engaged in certain activities, which may include a significant proportion of security-based swap dealing activity, and stated that such an approach would effectively supplant Title VII security-based swap dealer regulation for a majority of dealing activity carried out in the United States with a ‘‘cobbled together’’ grouping of other requirements.112 Alternative 1, in contrast, would apply Title VII security-based swap dealer regulation to arranging, negotiating or executing activity in the United States, regardless of whether that activity is conducted by banks or non-banks, consistent with the uniform securitybased swap dealer framework anticipated by Title VII. 2. Compliance With Specific SecurityBased Swap Dealer Requirements a. Conditions Regarding Application of Specific Requirements The proposal would incorporate provisions related to how Title VII requirements would apply to the registered security-based swap dealer’s activities conducted on behalf of its non-U.S. affiliate. As noted, Alternative 1 would be conditioned on any U.S. personnel who arrange, negotiate or execute security-based swap transactions in the United States acting in their capacity as an associated person of a registered security-based swap dealer. Security-based swap dealers in general must comply with a variety of obligations, including those related to: Financial responsibility; books, records and reports; trade acknowledgment and verification; supervision and chief compliance officers; and business conduct.113 Security-based swap dealers 112 See ANE Adopting Release, 81 FR at 8619; see also part I.A.3, supra. 113 See generally Exchange Act Section 15F. The Commission has adopted final rules to implement certain security-based swap dealer requirements under Section 15F. See Business Conduct Adopting Release, 81 FR 29960 (final rules addressing business conduct, supervision and chief compliance officer requirements); Exchange Act Release No. 78011 (Jun. 8, 2016), 81 FR 39808 (Jun. 17, 2016) (final rules addressing trade acknowledgment and verification requirements) (‘‘Trade Acknowledgment Adopting Release’’). The Commission also has proposed rules to implement security-based swap dealer requirements regarding: (1) Capital, margin and segregation (see Exchange Act Release No. 68071, 77 FR 70214 (Nov. 23, 2012) (‘‘Capital, Margin and Segregation Proposing Release’’); Exchange Act Release No. 71958 (Apr. 17, 2014), 79 FR 25194, 25254 (May 2, 2014)); (2) Recordkeeping and reporting (see Exchange Act Release No. 71958 (Apr. 17, 2014), 79 FR 25194 (May 2, 2014) (‘‘Recordkeeping and Reporting Proposing Release’’)); (3) Risk mitigation, including requirements relating to portfolio reconciliation, portfolio compression and trading relationship E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 also are subject to regulatory reporting and public dissemination requirements.114 Absent additional conditions, however, the transactions that would be subject to the proposed exception would not necessarily be subject to certain of those security-based swap dealer requirements. In particular, several provisions of the Exchange Act and the rules thereunder impose obligations upon security-based swap dealers with regard to their activities that involve a ‘‘counterparty.’’ 115 For transactions subject to the proposed exception, however, the registered security-based swap dealer that engages in arranging, negotiating and executing activity in the United States would not be a contractual party to the security-based swaps resulting from that arranging, negotiating or executing activity, and therefore would not be a ‘‘counterparty’’ to the transaction. The Commission accordingly is proposing to condition the exception on the registered security-based swap dealer complying with the following requirements ‘‘as if’’ the counterparties to the non-U.S. person relying on the exception also were counterparties to the registered security-based swap dealer: 116 • Disclosure of risks, characteristics, material incentives and conflicts of interest. The registered security-based swap dealer must disclose information regarding the material risks and characteristics of the security-based swap, and regarding the material incentives or conflicts of interest of the security-based swap dealer, including the material incentives and conflicts of documentation (see Exchange Act Release No. 84861 (Dec. 19, 2018), 84 FR 4614 (Feb. 15, 2019) (‘‘Risk Mitigation Proposing Release’’)); and (4) The cross-border application of various Title VII requirements, including certain security-based swap dealer requirements (see Cross-Border Proposing Release, 78 FR 30968). 114 See generally Regulation SBSR, 17 CFR 242.900 et seq. 115 See, e.g., Exchange Act Rule 15Fh–3(a) (eligible counterparty verification); Rule 15Fh–3(b) (disclosure of risks, characteristics, incentives and conflicts; Rule 15Fh–3(c) (daily mark disclosure); Rule 15Fh–3(d) (clearing rights disclosure); Rule 15Fh–3(e) (‘‘know your counterparty’’ requirement); Rule 15Fh-3(f) (suitability of recommendations); Rule 15Fh–3(g) (fair and balanced communications); Exchange Act Rule 15Fi–2(a) (trade acknowledgment and verification). Certain of the Exchange Act provisions that underlie those rules also explicitly refer to activities involving a ‘‘counterparty.’’ See Exchange Act Section 15F(h)(3)(A) (eligible counterparty verification); Sections 15F(h)(3)(B)(i), (ii) (disclosure of risks, characteristics, incentives and conflicts); Section 15F(h)(3)(B)(iii) (daily mark disclosure). 116 See Alternative 1—proposed paragraph (d)(1)(ii)(A) of Rule 3a71–3 (providing for ‘‘as if’’ compliance with certain specified requirements). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 interest associated with the non-U.S. person relying on the exception.117 • Suitability of recommendations. The registered security-based swap dealer must comply with requirements regarding the suitability of any recommendations that its associated persons make.118 • Fair and balanced communications. The registered security-based swap dealer must comply with fair and balanced communication requirements.119 • Trade acknowledgment and verification. The registered securitybased swap dealer must comply with trade acknowledgment and verification requirements.120 • Portfolio reconciliation requirements. The registered securitybased swap dealer must comply with the portfolio reconciliation requirements applicable to securitybased swap dealers for the securitybased swap resulting from the transaction as if the security-based swap were being included in the securitybased swap dealer’s portfolio, but only the first time that the security-based swap would be reconciled by the security-based swap dealer.121 117 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(1) of Rule 3a71–3 (citing the requirements for the disclosure of risks, characteristics, incentives and conflicts in Exchange Act Sections 15F(h)(3)(B)(i), (ii) and Rule 15Fh–3(b) thereunder). The underlying Rule 15Fh–3(b) requirement states that disclosure is required only so long as the identity of the counterparty is known to the security-based swap dealer ‘‘at a reasonably sufficient time prior to execution of the transaction’’ to permit compliance. The proposed condition specifies that the disclosure should address not only the material incentives and the conflicts of interest of the registered security-based swap dealer engaged in the arranging, negotiating or executing activity in the United States, but also those of the affiliated non-U.S. person relying on the exception, which is intended to allow the counterparty to the transaction to be appropriately informed regarding incentives and conflicts of interest relevant to the transaction. 118 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(2) of Rule 3a71–3 (citing the suitability requirements set forth in Rule 15Fh–3(f)). 119 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(3) of Rule 3a71–3 (citing the fair and balanced communications requirement set forth in Exchange Act Section 15F(h)(3)(C) and Rule 15Fh– 3(g) thereunder). 120 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(4) of Rule 3a71–3 (citing the trade acknowledgment and verification requirement set forth in Exchange Act Rules 15Fi–1 and 15Fi–2). 121 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(5) of Rule 3a71–3 (citing the portfolio reconciliation requirement proposed to be set forth in Exchange Act Rule 15Fi–3). In practice, this condition would require the security-based swap dealer to establish, maintain, and follow written policies and procedures reasonably designed to ensure that it engages in the initial portfolio reconciliation for transactions for which it arranges, negotiates, or executes security-based swap transactions for its foreign affiliates. See Risk PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 24221 The Commission preliminarily believes that requiring the registered security-based swap dealer engaged in arranging, negotiating or executing activity in the United States to comply with the standards of conduct required by the above requirements in connection with the transactions at issue generally would not impose significant additional informationgathering or documentation burdens on that registered security-based swap dealer. At the same time, the Commission recognizes that certain of those requirements, particularly the disclosure and suitability requirements, in some cases may require the registered security-based swap dealer to undertake potentially significant additional efforts related to information-gathering and documentation. In the Commission’s view, however, the customer protections provided by imposing those requirements would justify the associated burdens. For example, disclosure of risks, characteristics, material incentives, and conflicts of interest will permit a counterparty to more effectively assess whether and under which terms to enter a transaction. Although the compliance burdens associated with that disclosure obligation may be significant, those burdens should be mitigated by the underlying provision stating that the requirement to disclose risks, characteristics, material incentives and conflicts of interest will apply only when the registered security-based swap dealer knows the identity of the counterparty at a reasonably sufficient time prior to execution of the transaction.122 The burden of complying with the suitability requirement, including obtaining the required counterparty information and making a suitability assessment using that information, similarly may be significant in some cases, but the Commission preliminarily believes that those burdens are justified by the importance of the counterparty protections provided by the suitability requirement.123 The Commission further Mitigation Proposing Release (proposing Exchange Act Rule 15Fi–3). 122 See Exchange Act Rule 15Fh–3(b). 123 If the registered security-based swap dealer makes a recommendation in connection with the transaction—apart from a recommendation to a security-based swap dealer, swap dealer, major security-based swap participant, or major swap participant—the suitability rule would require the entity both to undertake reasonable diligence to understand the potential risks and rewards associated with a recommended security-based swap or trading strategy involving a security-based swap (see Rule 15Fh–3(f)(1)(i)), and to have a reasonable basis to believe that the recommended security-based swap or trading strategy involving a E:\FR\FM\24MYP2.SGM Continued 24MYP2 24222 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 notes that the suitability requirement would apply only when the registered security-based swap dealer makes a recommendation to the counterparty, and that the associated burdens may be lessened by the institutional suitability provisions of the requirement.124 In this regard, moreover, we understand that in some cases, U.S. personnel currently manage trading or sales relationships with counterparties, and the registered security-based swap dealer accordingly may already possess the information needed to comply with obligations such as disclosure or suitability.125 The Commission is proposing to condition the exception on the registered security-based swap dealer complying with the trade acknowledgement and verification requirements to help assure that there are definitive written records of the terms of the resulting transactions and to help control legal and operational risks for the counterparties.126 The proposal to condition the exception on the registered entity complying with the portfolio reconciliation requirements as if it were security-based swap is suitable for the counterparty (see Rule 15Fh–3(f)(1)(ii)). 124 In the case of recommendations to certain institutional counterparties, the security-based swap dealer may satisfy the counterparty-specific suitability requirement if it receives certain written representations and provides certain disclosures. See Rules 15Fh–3(f)(2) and (3). 125 The Commission is soliciting comment regarding the practicability of requiring compliance with the suitability condition in the circumstances at issue. See part III.D.5, infra. 126 See generally Trade Acknowledgment Adopting Release, 81 FR at 39809. This proposed condition has parallels to Exchange Act Rule 15a–6(a)(3), which provides a conditional exemption from broker-dealer regulation for foreign broker-dealers in connection with certain activities that are intermediated (or ‘‘chaperoned’’) by registered broker-dealers. Under Rule 15a–6(a)(3)(iii)(A)(2), the registered brokerdealer must issue all required confirmations and statements. In the present context the Commission would expect the registered security-based swap dealer to use the same general techniques, to obtain requisite information to satisfy the trade acknowledgment and verification condition, as registered broker-dealers use to obtain the information needed to satisfy the Rule 15a–6 confirmation condition. Given that the registeredsecurity-based swap dealer would be affiliated with the non-U.S. person relying on the exception, the use of common back office platforms may help facilitate transfer of that information. As further discussed in Section IV, the Commission is mindful that foreign blocking laws, privacy laws, secrecy laws and other foreign legal barriers may limit or prohibit firms from providing books and records directly to the Commission, Similarly, such laws may impede the transfer of relevant records among affiliates for purposes of complying with the exception. The Commission preliminarily believes that the exception should not be available if such impediments to transferring information precluded compliance with the trade acknowledgement and verification condition, given those requirements’ importance in providing for definitive records and controlling risks. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 the counterparty to the transaction, but only for the initial reconciliation, should help advance two goals: Helping to ensure the accuracy of the data reported to security-based swap data repositories (‘‘SDRs’’), and helping to facilitate the ability of registered SDRs to comply with requirements that they verify the information they receive.127 The Commission believes that the condition would promote those goals while imposing only minimal additional burdens on the registered entity, based in part on the understanding that the registered entity typically would have access to the necessary information because the registered entity is likely to report the transaction to the SDR on behalf of its non-U.S. affiliate (due to the registered entity being the only U.S. person involved in the transaction). Moreover, for these transactions the underlying proposed portfolio reconciliation rule focuses on there being reasonable policies and procedures in place,128 meaning that the registered entity would not fall out of compliance with the condition merely because it has not been provided necessary counterparty information. In addition, the Commission is conditioning the exception on the registered security-based swap dealer 127 In proposing the portfolio reconciliation requirements, the Commission explained that the requirements have been designed not only to help ensure that the counterparties to a transaction are and remain in agreement with respect to all material terms, but also to help ensure that the information reported to SDRs is complete and accurate. See Risk Mitigation Proposing Release, 84 FR at 4634. This objective is applicable to the transactions at issue because transactions that are arranged, negotiated, or executed by U.S. personnel of a registered security-based swap dealer are subject to Regulation SBSR based on that activity. See Regulation SBSR Rule 908(a)(1)(v). The portfolio reconciliation requirement further may assist SDRs in satisfying their obligations under Section 13(n)(5)(B) of the Exchange Act and rule 13n–4(b)(3) thereunder to verify the terms of each security-based swap with both counterparties. See Risk Mitigation Proposing Release, 84 FR at 4633–4644. 128 In the Risk Mitigation Proposing Release, the Commission proposed that, with respect to transactions with persons who are not SBS Entities, security-based swap dealers would be required to establish, maintain, and follow written policies and procedures reasonably designed to ensure that it engages in portfolio reconciliation for those security-based swap transactions. As such, conditioning the exception on security-based swap dealers complying with the initial portfolio reconciliation requirements as if the security-based swap dealer were the counterparty to the transaction, will require that its required policies and procedures regarding reconciliation include transactions for which the security-based swap dealer arranges, negotiates or executes a securitybased swap transaction on behalf of another person. By contrast, the proposed rule expressly requires portfolio reconciliation to occur with respect to security-based swap transactions between two SBS Entities. See Risk Mitigation Proposing Release, 84 FR 4618–20. PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 complying with fair and balanced communication requirements to promote investor protection, which prohibit registered entities from overstating the expected benefits or understating the expected risks of potential transactions in their communications with counterparties.129 Conversely, this proposed compliance condition would not extend to certain other ‘‘counterparty’’-related requirements applicable to securitybased swap dealers. In part, the proposed exception would not be conditioned on compliance with ECP verification requirements 130 and ‘‘know your counterparty’’ requirements 131 because the Commission preliminarily believes that in some circumstances the registered security-based swap dealer would have limited interaction with the counterparty to the transactions at issue, making it difficult to obtain the information needed to satisfy those requirements. For example, compliance with the ‘‘know your counterparty’’ requirement would be expected to necessitate the creation of documentation that may be infeasible for the registered security-based swap dealer.132 Compliance with the ECP verification requirement would require the registered security-based swap dealer to verify that a counterparty meets the eligibility standards for an ECP before entering into a securitybased swap with that counterparty— which could be problematic in this context given the diverse set of circumstances in which the registered security-based swap dealer may arrange, negotiate or execute transactions subject to the exception. To be clear, however, although the Commission is not proposing to condition the exception on compliance with security-based swap dealer ECP verification requirements, existing limitations on entering into 129 See Business Conduct Adopting Release, 81 FR at 30001–02 (‘‘we believe the requirement promotes investor protection by prohibiting SBS Entities from overstating the benefits or understating the risks to inappropriately influence counterparties’ investment decisions’’). 130 See Alternative 1—proposed paragraph (d)(1)(ii)(C)(1) of Rule 3a71–3 (citing the eligible contract participant verification requirement set forth in Exchange Act Section 15F(h)(3)(A) and Rule 15Fh–3(a)(1) thereunder); see also Business Conduct Adopting Release, 81 FR at 29978–79. 131 See Alternative 1—proposed paragraph (d)(1)(ii)(C)(4) of Rule 3a71–3 (citing the ‘‘know your counterparty’’ requirement is set forth in Rule 15Fh-3(e)); see also Business Conduct Adopting Release, 81 FR at 29993–94. 132 The scope of the ‘‘know your counterparty’’ requirement is in contrast the suitability requirements addressed above, which would apply only when the registered security-based swap dealer makes a recommendation. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 security-based swaps with non-ECPs would remain in effect.133 In addition, the proposed exception would not be conditioned on compliance with clearing rights disclosure requirements,134 because the transactions at issue would not be expected to be subject to the underlying clearing rights.135 Finally, the proposed exception would not be conditioned on compliance with daily mark disclosure requirements 136 and with certain risk mitigation rules 137 because those requirements are predicated on there being an ongoing relationship between the security-based swap dealer and the counterparty that may not be present in connection with the transactions at issue, and further would be linked to risk management functions that are likely to be associated with the entity in which the resulting security-based swap position is booked. Separately, although the Exchange Act and Commission rules apply certain requirements to security-based swap dealers that act as advisors or counterparties to special entities,138 the Commission has defined the term ‘‘special entity’’ so as not to encompass non-U.S. persons.139 Because the 133 See Exchange Act Section 6(l) (requiring security-based swaps with non-ECPs to be effected on a national securities exchange); Securities Act Section 5(e) (requiring registration of the offer and sale of security-based swaps to non-ECPs). The registered security-based swap dealer might use information obtained from its non-U.S. affiliate to verify that a counterparty to the security-based swap is in fact an ECP. 134 See Alternative 1—proposed paragraph (d)(1)(ii)(C)(3) of Rule 3a71–3 (citing the clearing rights disclosure requirement set forth in Rule 15Fh–3(d)); see also Business Conduct Adopting Release, 81 FR at 29992–93. 135 See Exchange Act Section 3C(g)(5) (addressing clearing rights of transactions that have been ‘‘entered into’’ by security-based swap dealers). 136 See Alternative 1—proposed paragraph (d)(1)(ii)(C)(2) of Rule 3a71–3 (citing the requirement for the disclosure of daily marks set forth in Exchange Act Section 15F(h)(3)(B)(iii) and Rule 15Fh–3(c) thereunder). 137 See Alternative 1—proposed paragraphs (d)(1)(ii)(C)(5)-(6) of Rule 3a71–3. Those paragraphs cross-reference requirements regarding the following: (1) Security-based swap portfolio compression (proposed Exchange Act Rule 15Fi–4). The proposed portfolio compression rule would address processes whereby counterparties terminate or change the notional value of security-based swap in the portfolio between the counterparties. (2) Security-based swap trading relationship documentation (proposed Exchange Act Rule 15Fi– 5). The proposed trading documentation rule would address the trading relationship between counterparties, including terms addressing payment obligations, netting, default or termination events and allocation of reporting obligations. 138 See generally Exchange Act Sections 15F(h)(4) and (5), and Exchange Act Rules 15Fh–3(a)(2), (3), 15Fh–4 and 15Fh–5. 139 See Exchange Act Rule 15Fh–2(d); see also Exchange Act Release No. 77617 (Apr. 14, 2016), 81 FR 29960, 30013 (May 13, 2016). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 counterparties to the transactions that are the subject of this exception would not be U.S. persons, the special entity requirements would not apply to those transactions. b. Application of Other Requirements By virtue of being a registered security-based swap dealer, the entity engaged in arranging, negotiating or executing activity in the United States would have to comply with additional requirements applicable to securitybased swap dealers, including, but not limited to requirements related to supervision, chief compliance officers, books and records and financial responsibility. 3. Commission Access to Relevant Books, Records and Testimony, and Related Obligations Under the proposal, the non-U.S. person relying on the conditional exception would, upon request, promptly have to provide the Commission or its representatives with any information or documents within the non-U.S. person’s possession, custody or control related to transactions under the exception, as well as making its foreign associated persons available for testimony, and providing assistance in taking the evidence of other persons, wherever located, related to those transactions.140 In addition, the registered securitybased swap dealer engaged in that activity in the United States must create and maintain all required books and records relating to the transaction subject to the exception, including those required by Exchange Act Rules 17a–3 and 17a–4, or Rules 18a–5 and 18a–6, as applicable.141 The condition further Exchange Act Section 15F(h)(4)(A)(iii) and Exchange Act Rule 15Fh–4(a)(3), which prohibit security-based swap dealers from engaging in any act, practice or course of business that is fraudulent, deceptive or manipulative, still would apply to those registered security-based swap dealers in connection with this exception, notwithstanding those provisions’ basis in Section 15F(h)(4) (which mostly addresses a security-based swap dealer’s obligations in dealing with special entities). 140 See Alternative 1—proposed paragraph (d)(1)(iii)(A) of Rule 3a71–3. That proposed paragraph further would specify that the non-U.S. person must provide this information under request of the Commission or its representatives or pursuant to arrangements or agreements reached between any foreign securities authority, including any foreign government, and the Commission or the U.S. government. Proposed paragraph (a)(11) of Rule 3a71–3 in general would define the term ‘‘foreign associated person’’ as a natural person domiciled outside the United States that is a partner, officer, director, branch manager or employee of the non-U.S. person taking advantage of the exception, or that controls, is controlled by or is under common control with that non-U.S. person. 141 See Alternative 1—proposed paragraph (d)(1)(iii)(B)(1) of Rule 3a71–3. Under proposed PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 24223 clarifies that this obligation would extend to books and records requirements related to the conditions, discussed above, requiring the registered security-based swap dealer to comply with Title VII requirements relating to: Disclosure of risks, characteristics, incentives and conflicts; suitability; fair and balanced communications; trade acknowledgment and verification; and portfolio reconciliation.142 The registered security-based swap dealer further must obtain from the nonU.S. person relying on the exception, and maintain, documentation encompassing all terms governing the trading relationship between the nonU.S. person and its counterparty relating to the transactions subject to this exception, including terms addressing payment obligations, netting of payments, events of default or other termination events, calculation and netting of obligations upon termination, transfer of rights and obligations, allocation of any applicable regulatory reporting obligations, governing law, valuation, and dispute resolution.143 books and records requirements, a registered security-based swap dealer would be required to comply with the books and records requirements of Exchange Act Rules 17a–3 and 17a–4 if it is dually registered as a broker-dealer, or the requirements of Rules 18a–5 and 18a–6 if it is not. See generally Recordkeeping and Reporting Proposing Release, 79 FR at 25298–302, 25307–13; Risk Mitigation Proposing Release, 84 FR at 4674–75. Consistent with the provisions of those proposed books and records requirements, the registered entity would make and/or preserve the following types of records related to the transactions at issue: Records of communications; written agreements; copies of trade acknowledgments; records related to transactions not verified in a timely manner; documents related to compliance with securitybased swap dealer business conduct standards; and documents related to compliance with portfolio reconciliation requirements. Other types of records addressed by those proposed books and records requirements—e.g., inclusion of trades in financial ledgers—preliminarily would not appear to be required for the registered entity in connection with these transactions, as the registered entity would not have direct financial obligations under the transactions. 142 See Alternative 1—proposed paragraph (d)(1)(iii)(B)(1) of Rule 3a71–3 (requiring creation and maintenance of books and records relating to the requirements specified in proposed paragraph (d)(1)(ii)(B)). 143 See Alternative 1—proposed paragraph (d)(1)(iii)(B)(2) of Rule 3a71–3. These records are consistent with those required by the Commission’s proposed trading relationship documentation rule. See Risk Mitigation Proposing Release, 84 FR at 4673–74 (proposing Exchange Act Rule 15Fi–5). As discussed above in connection with the implementation of the trade acknowledgment and verification condition (see note 126, supra), the Commission is mindful that foreign blocking laws, privacy laws, secrecy laws and other foreign legal barriers may impede the transfer of relevant records among affiliates for purposes of complying with this condition. Here too, the Commission preliminarily believes that the exception should not be available E:\FR\FM\24MYP2.SGM Continued 24MYP2 24224 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 In addition, the registered securitybased swap dealer would have to obtain from the non-U.S. person relying on the exception written consent to service of process for any civil action brought by or proceeding before the Commission, specifying that process may be served on the non-U.S. person in the manner set forth in the registered security-based swap dealer’s current Form SBSE, SBSE–A or SBSE–BD, as applicable.144 Those proposed requirements— relating to Commission access to information of the non-U.S. person, the obligation of the registered securitybased swap dealer to create and maintain information related to the transaction, and to obtain and maintain trading relationship documentation from the non-U.S. person, and the obligation of the non-U.S. person to consent to service of process—should help provide the Commission with a comprehensive view of the dealing activities connected with transactions relying on the proposed exception, and facilitate the Commission’s ability to identify fraud and abuse in connection with transactions that have been arranged, negotiated or executed in the United States.145 if such impediments to transferring information precluded compliance with the condition requiring the registered entity to obtain trading relationship documentation, given the need for the Commission to have a comprehensive view of the dealing activities connected with transactions relying on the proposed exception, to facilitate the Commission’s ability to identify fraud and abuse in connection with transactions that have been arranged, negotiated or executed in the United States. 144 See Alternative 1—proposed paragraph (d)(1)(iii)(B)(3) of Rule 3a71–3. Form SBSE addresses applications for registration as securitybased swap dealers or major security-based swap participants. Form SBSE–A addresses such applications by persons that are registered or registering with the CFTC as swap dealers. Form SBSE–BD addresses such applications by persons that are registered broker-dealers. These forms may be found at https://www.sec.gov/forms. 145 The proposed conditions regarding Commission access to information of the non-U.S. person, and regarding the need for the non-U.S. person to consent to service of process, are similar to the access and consent to service conditions in Exchange Act Rule 15a–6(a)(3). Rule 15a–6 in part provides a conditional exemption from brokerdealer regulation for foreign broker-dealers in connection with certain activities that are intermediated by registered broker-dealers. That rule in part requires that a foreign broker-dealer provide the Commission (upon request or pursuant to agreements reached between any foreign securities authority and the Commission or the U.S. Government) with any information or documents within the possession, custody, or control of the foreign broker or dealer, any testimony of foreign associated persons, and any assistance in taking the evidence of other persons, wherever located. See Exchange Act Rule 15a–6(a)(3)(i)(B), (c). The proposed conditions would modify the Rule 15a– 6 access language to better describe the breadth of the access afforded under this condition—e.g., the proposed condition requires that the information be VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 The proposed condition related to access to information, documents or testimony further provides that if, despite the non-U.S. person’s best efforts, the non-U.S. person is prohibited by applicable foreign law or regulations from providing such access to the Commission, the non-U.S. person may continue to rely on the exception until the Commission issues an order modifying or withdrawing an associated ‘‘listed jurisdiction’’ determination.146 As discussed below, proposed provisions relating to the ‘‘listed jurisdiction’’ condition to the exception in part would permit the Commission to withdraw a listed jurisdiction determination if the jurisdiction’s laws or regulations have had the effect of preventing the Commission or its representatives from accessing such information, documents and testimony.147 4. Disclosures to Counterparties The proposed exception further would be conditioned on the registered security-based swap dealer notifying the counterparties of the non-U.S. person relying on the exception that the nonU.S. person is not registered as a security-based swap dealer, and that certain Exchange Act provisions or rules addressing the regulation of securitybased swaps would not be applicable to the non-U.S. person in connection with the transaction, including provisions affording clearing rights to counterparties.148 To promote effective provided ‘‘promptly,’’ and specifically references supervisory or enforcement memoranda of understanding and other arrangements with foreign authorities. The proposed conditions regarding the obligation of the registered security-based swap dealer contains elements comparable to a condition of Rule 15a–6 that states that a registered broker-dealer must be responsible for maintaining required books and records relating to the transactions conducted pursuant to the exemption, including books and records required by applicable Exchange Act rules. See Exchange Act Rule 15a–6(a)(3)(iii)(A)(4). The proposal also incorporates language providing for the registered security-based swap dealer to obtain trading relationship documentation to further promote effective Commission access to relevant information. 146 See Alternative 1—proposed paragraph (d)(1)(iii)(A) of Rule 3a71–3 (referring to listed jurisdiction withdrawal provisions of paragraph (d)(2)(iii)). That continued reliance provision is limited to circumstances in which the failure to provide access is due to applicable foreign law or regulations. Accordingly, a non-U.S. person’s failure to provide the Commission with required information for any reason other than prohibition by applicable foreign law or regulations would cause the person to be in violation of the conditions to the exception, making the exception unavailable to that person. 147 See part III.B.5, infra. 148 See Alternative 1—proposed paragraph (d)(1)(iv) of Rule 3a71–3; see also notes 134 and PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 disclosure, the registered security-based swap dealer would have to provide this information contemporaneously with and in the same manner (e.g., oral, electronic or otherwise) as the arranging, negotiating or executing activity at issue.149 This proposed condition is intended to help guard against counterparties assuming that the involvement of U.S. personnel in a arranging, negotiating or executing capacity as part of the transaction would be accompanied by all of the safeguards associated with Title VII security-based swap dealer regulation. Because the disclosure must be provided contemporaneously with, and in the same manner as, the activity at issue (e.g., via oral disclosure in the event that the market facing activity occurs via oral communications), the Commission does not believe that such disclosure reasonably could be provided via inclusion in standard trading documentation. 5. Applicability of Financial Responsibility Requirements of a Listed Jurisdiction Finally, the proposed exception would be conditioned on the requirement that the non-U.S. person relying on the exception be subject to the margin and capital requirements of a ‘‘listed jurisdiction’’ when engaging in transactions subject to this exception.150 The Commission conditionally or unconditionally may determine ‘‘listed jurisdictions’’ by order, in response to applications or upon the Commission’s own initiative.151 135, supra, and accompanying text regarding clearing rights. 149 This disclosure requirement would not apply if the identity of that counterparty is not known to that registered security-based swap dealer at a reasonably sufficient time prior to the execution of the transaction to permit such disclosure. Id. Circumstances in which the registered securitybased swap dealer engaged in relevant activity may not know the identity of the counterparty could include circumstances in which the registered security-based swap dealer provides only execution services, and does not arrange or negotiate the transactions at issue, as well as circumstances where personnel in the United States specify a trading strategy or techniques carried out through algorithmic trading or automated electronic execution of security-based swaps. See also note 117, supra (discussing a similar carveout in connection with the security-based swap dealer requirements for disclosure of risks, characteristics, material incentives and conflicts of interest). 150 See Alternative 1—proposed paragraph (d)(1)(v) of Rule 3a71–3 (cross-referencing proposed the data access provisions of proposed paragraph (d)(1)(iii)(A)). 151 See Alternative 1—proposed paragraph (d)(1) of Rule 3a71–3. Proposed paragraph (a)(12) of Rule 3a71–3 would define the term ‘‘listed jurisdiction’’ to mean any jurisdiction which the Commission by order has designated as a listed jurisdiction for purposes of the exception. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 The proposed listed jurisdiction condition is intended to help avoid creating an incentive for dealers to book their transactions into entities that solely are subject to the regulation of jurisdictions that do not effectively require security-based swap dealers or comparable entities to meet certain financial responsibility standards. Absent this type of condition, the exception from the de minimis counting requirement could provide a competitive advantage to non-U.S. persons that conduct security-based swap dealing activity in the United States without being subject to sufficient financial responsibility standards. More generally, the proposed condition is consistent with the belief the Commission expressed when it adopted the ‘‘arranged, negotiated, or executed’’ de minimis counting rule, that applying capital and margin requirements to such transactions between two non-U.S. persons can help mitigate the potential for financial contagion to spread to U.S. market participants and to the U.S. financial system more generally.152 Commenters to the Commission’s proposal for the ‘‘arranged, negotiated, or executed’’ counting requirement suggested that potential concerns regarding that type of outcome could be addressed by conditioning a brokerdealer-based alternative to the counting rule on the non-U.S. entity being regulated in a ‘‘local jurisdiction recognized by the Commission as comparable,’’ or in a G–20 jurisdiction or in a jurisdiction where the entity would be subject to Basel capital requirements.153 The Commission, however, does not believe that concerns The proposal also specifies that applications for listed jurisdiction status may be made by parties or groups of parties that potentially would rely on the exception from the counting rule, and by any foreign financial authorities supervising such parties. The proposal further states that such applications must be filed pursuant to the procedures specified in Exchange Act Rule 0–13. See Alternative 1—proposed paragraph (d)(2)(i) of Rule 3a71–3. Rule 0–13 currently addresses substituted compliance applications, and the Commission is proposing to amend the caption of that rule and make certain additions to the text of that rule so that it also references ‘‘listed jurisdiction’’ applications. 152 See ANE Adopting Release, 81 FR at 8616. The Commission further has stated: Subjecting non-U.S. persons that engage in security-based swap dealing activity in the United States at levels above the dealer de minimis threshold to capital and margin requirements also should help reduce the likelihood of firm failure and the likelihood that that the failure of a firm engaged in dealing activity in the United States might adversely affect not only its counterparties (which may include other firms engaged in security-based swap dealing activity in the United States) but also other participants in that market. Id. at 8617. 153 See note 23, supra, and accompanying text. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 regarding potential risks associated with this type of exception would adequately be addressed by a ‘‘one size fits all’’ approach that is linked simply to a jurisdiction’s membership in the G–20 or compliance with Basel standards, with no further opportunity to consider relevant regulatory practices and requirements.154 In considering a jurisdiction’s potential status as a ‘‘listed jurisdiction’’—whether upon the Commission’s own initiative or in response to an application for an order—the Commission would consider whether the order would be in the public interest.155 Factors would include consideration of the jurisdiction’s applicable margin and capital requirements, and the effectiveness of the foreign regime’s supervisory compliance program and enforcement authority in connection with those requirements, including in the cross-border context.156 The Commission further may by order, on its own initiative, modify 157 or withdraw a listed jurisdiction determination, after notice and opportunity for comment, if the Commission determines that continued listed jurisdiction status would not be in the public interest.158 The Commission may base that modification or withdrawal on the factors discussed above regarding the foreign jurisdiction’s margin and capital requirements and associated supervisory and enforcement 154 The Commission is mindful that a jurisdiction’s membership in the G–20 or its compliance with Basel standards can be a positive indicator regarding the effectiveness of the jurisdiction’s margin and capital regimes. At the same time, the Commission also recognizes that implementation and oversight practices may vary even among those jurisdictions. Accordingly, the Commission preliminarily believes that the proposed individualized ‘‘listed jurisdiction’’ assessment would provide us an appropriate degree of discretion to consider whether the jurisdiction has implemented appropriate financial responsibility standards and exercises appropriate supervision in connection with those standards, and whether the Commission as necessary could access relevant information. 155 See Alternative 1—proposed paragraph (d)(2)(ii) of Rule 3a71–3. 156 See Alternative 1—proposed paragraph (d)(2)(ii)(A), (B) of Rule 3a71–3. 157 As discussed below, the Commission may modify a listed jurisdiction designation by broadening or narrowing the application of listed jurisdiction status in connection with a particular class of market participants or an individual market participant within that jurisdiction. 158 See Alternative 1—proposed paragraph (d)(2)(iii) of Rule 3a71–3. The Commission preliminarily expects that any such notice would be via publication in the Federal Register and on the Commission’s website, to allow all interested parties the opportunity to comment, including persons that are located in the jurisdiction at issue and are relying on the exception. PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 24225 practices.159 The Commission may also consider whether the jurisdiction’s laws or regulations have had the effect of preventing the Commission or its representatives from promptly being able to obtain information regarding the non-U.S. persons relying on the exception.160 This latter provision reflects the importance of the proposed exception’s information access condition,161 and the conclusion that it would be appropriate to modify or withdraw listed jurisdiction status if, in practice, the Commission or its representatives have been prevented from accessing information required under the exception due to the jurisdiction’s laws or regulations.162 Because listed jurisdiction determinations may be conditional or unconditional, the Commission may modify a determination, among other circumstances, when: (1) Certain market participants or classes of market participants in the jurisdiction are not required to comply with the financial responsibility requirements that 159 See Alternative 1—proposed paragraph (d)(2)(iii)(A) of Rule 3a71–3 (cross-referencing paragraph (d)(2)(ii)). 160 See Alternative 1—proposed paragraph (d)(2)(iii)(B) of Rule 3a71–3. These would include potential barriers to the Commission’s ability to obtain testimony of the non-U.S. person’s foreign associated persons, and to obtain the assistance of the non-U.S. person in taking the evidence of other persons. Id. 161 As discussed, the proposed exception is conditioned in part on the non-U.S. person promptly making relevant information available to the Commission and its representatives. The access condition is intended to help ensure that the Commission and its representatives in practice can obtain a full view of the dealing activities connected with transactions at issue, to avoid impediments in identifying fraud and abuse in connection with transactions that have been arranged, negotiated or executed in the United States. See part III.B.3, supra. 162 Given the importance of the proposed access condition, the Commission does not believe that persons from a foreign jurisdiction should be able to continue relying on the exception if the jurisdiction’s law or regulations prevent the Commission from obtaining access to relevant information. At the same time, the Commission’s initial consideration of whether to designate a particular jurisdiction as a ‘‘listed jurisdiction’’ would focus on the jurisdiction’s applicable margin and capital requirements and the foreign regime’s supervisory compliance program and enforcement authority in connection with those requirements. This in part reflects the listed jurisdiction condition’s core role in helping to ensure that non-U.S. persons that rely on the proposed exception are subject to adequate capital and margin requirements. More generally, this approach also reflects the expectation that, in practice, methods may be developed to help provide the Commission with access to requested information. Separately, the Commission’s decision to modify or withdraw listed jurisdiction status may be based on any other factor it determines to be relevant to whether continued status as a listed jurisdiction would be in the public interest. See Alternative 1— proposed paragraph (d)(2)(iii)(C) of Rule 3a71–3. E:\FR\FM\24MYP2.SGM 24MYP2 24226 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 underpin the designation; (2) the jurisdiction’s supervisory or enforcement practices oversee certain market participants or classes of market participants differently than others; or (3) the jurisdiction’s barriers to data access apply to certain market participants or classes of market participants but not others. In practice, the Commission’s use of this authority may cause the exception to be unavailable to certain groups of market participants in a jurisdiction, or to individual market participants.163 Preliminarily—based on the Commission’s understanding of relevant margin and capital requirements in those jurisdictions—the Commission anticipates that the initial set of listed jurisdiction determinations may include some or all of the following jurisdictions: Australia, Canada, France, Germany, Hong Kong, Japan, Singapore, Switzerland, and the United Kingdom. The Commission is soliciting comment as to whether listed jurisdiction status may be appropriate for any of those jurisdictions, based on those jurisdictions’ financial responsibility requirements and associated supervisory and enforcement programs.164 The Commission further anticipates that it may issue a set of listed jurisdiction orders in conjunction with its final action on this proposal, including orders addressing the jurisdictions specified above. As discussed above, however, if the Commission determines that the laws or regulations of a listed jurisdiction have prevented the Commission from obtaining relevant information required pursuant to this exception in relation to any person in the listed jurisdiction availing itself of the exception, the Commission may modify or withdraw a listed jurisdiction designation for that reason. ‘‘Listed jurisdiction’’ applications may be expected to raise issues that are analogous to those that would accompany applications for substituted compliance in connection with margin and capital rules, in that both types of applications would require the 163 For example, as discussed above in conjunction with the information access provision, if a non-U.S. person is prohibited by applicable foreign law or regulations from providing access to the Commission or its representatives, the non-U.S. person may continue to rely on the exception until the Commission issues an order modifying or withdrawing an associated ‘‘listed jurisdiction’’ determination. To the extent that such prohibitions apply in practice to a particular class of market participants, or to an individual market participant in that jurisdiction, a modification of a listed jurisdiction order may exclude that class of market participants or that individual market participant from reliance on the exception. 164 See part III.D.3, infra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Commission to consider the substance and implementation of foreign margin and capital standards.165 Those two types of applications, however, would arise in materially distinct contexts. In particular, ‘‘listed jurisdiction’’ status would be relevant only with regard to non-U.S. persons whose dealing transactions with U.S.-person counterparties, if any, would be below the de minimis thresholds. This de minimis cap on its dealing transactions with U.S. persons likely would attenuate—although not eliminate—the potential effect of the firm’s failure on U.S. persons and markets. Substituted compliance, in contrast, would address the margin and capital requirements applicable to registered security-based swap dealers that may engage in dealing transactions with U.S. counterparties in amounts above the de minimis thresholds, and whose failure is likely to pose greater direct threats to U.S. persons and markets. Substituted compliance accordingly would be predicated on the foreign margin and capital regime producing regulatory outcomes that are comparable to the analogous requirements under Title VII. Similarly, although the Commission will also consider, in connection with a substituted compliance determination, the effectiveness with which a regime administers its supervisory compliance program and exercises its enforcement authority, the different purposes of these proposed exclusions and a substituted compliance determination mean that the Commission may reach different conclusions regarding these issues when considering a substituted compliance determination than it does when considering listed status. 165 The Commission has proposed to make a mechanism for substituted compliance orders generally available in connection with securitybased swap dealer requirements under Exchange Act Section 15F. See ‘‘Cross-Border Security-Based Swap Activities; Re-Proposal of Regulation SBSR and Certain Rules and Forms Relating to the Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants’’ (May 1, 2013), 78 FR 30968, 31207–08 (May 23, 2013) (proposing substituted compliance rule for section 15F requirements; since then a mechanism for substituted compliance has been adopted via Exchange Act Rule 3a71–6 in connection with business conduct and trade acknowledgment and verification requirements). Those Section 15F requirements include security-based swap dealer margin and capital requirements. Substituted compliance provides a mechanism by which a nonU.S. security-based swap dealer may satisfy its requirements under Title VII via compliance with analogous requirements of a foreign regime, contingent in part on the Commission deeming the scope and objectives of the relevant foreign requirements to be comparable to analogous Title VII requirements. As proposed, substituted compliance would not be available in connection with the Commission’s segregation requirements. PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 C. Alternative 2—Second Alternative Proposed Conditional Exception Alternative 2 for the proposed conditional exception would share a number of elements with Alternative 1, but instead would allow the arranging, negotiating or executing activity in the United States to be conducted by an entity that is registered as a broker, without requiring that entity also to register as a security-based swap dealer.166 Alternative 2 also would permit that conduct to be conducted by a registered security-based swap dealer, consistent with the Alternative 1.167 Certain proposed conditions to Alternative 2 would be the same as those of Alternative 1, while others would be modified to reflect the potential for the activity in the United States to be conducted by a registered broker that is not also registered as a security-based swap dealer. Alternative 2 accordingly would make use of broker regulation to provide for oversight of the transactions at issue while adding certain conditions to fill gaps in regulation that otherwise may arise absent the involvement of a registered security-based swap dealer. Those conditions should help mitigate the previously expressed concerns that a broker-focused approach may effectively supplant Title VII security-based swap dealer regulation for a majority of dealing activity carried out in the United States.168 1. U.S. Activity Conducted by a Majority-Owned Registered Broker Affiliate or by a Security-Based Swap Dealer Affiliate Under Alternative 2, the U.S.-based arranging, negotiating and executing activity that otherwise would trigger the counting requirement must be conducted by the U.S. personnel in their capacity as persons associated with an entity that: (a) Is registered as a broker or a security-based swap dealer, and (b) 166 Alternative 2 would not be satisfied if this arranging, negotiating or executing activity is conducted by a bank that has not registered as a broker due to the Exchange Act’s ‘‘broker’’ definition’s exceptions for bank brokerage activity, unless the bank is registered as a security-based swap dealer. 167 For the reasons set forth above (see note 106, supra, and accompanying text), the Commission believes that such a security-based swap dealer also generally would be required to register as a broker unless it can avail itself of an exception or exemption from broker registration. 168 See part I.A.3, supra. Because Alternative 2 would not be satisfied by the use of a bank that is not registered as a broker, the Commission’s previously expressed concerns regarding differences in oversight between brokers and banks should not be a concern here. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules is a majority-owned affiliate of the nonU.S. person relying on the exception.169 Consistent with Alternative 1, the affiliation requirement is intended to help tailor the exception to reflect the proposed exception’s objective of helping to avoid personnel relocation, and to also help ensure that the financial group has a significant financial interest in the registered entity’s compliance with applicable requirements.170 khammond on DSKBBV9HB2PROD with PROPOSALS2 2. Compliance With Certain SecurityBased Swap Dealer Requirements For a non-U.S. person to rely on Alternative 2, the registered broker or security-based swap dealer that conducts the arranging, negotiating or executing activity in the United States would be required to comply with certain security-based swap dealer requirements ‘‘as if’’: (a) The counterparties to the non-U.S. person relying on the exception also were counterparties to that entity, and (b) that entity were registered with the Commission as a security-based swap dealer (in the event the entity is registered only as a broker and not as a security-based swap dealer). As with Alternative 1, the Commission preliminarily believes that it would be appropriate to condition Alternative 2 on compliance by the registered entity with the following requirements applicable to security-based swap dealers: Disclosure of risks, characteristics, incentives and conflicts; suitability of recommendations; fair and balanced communications; trade acknowledgment and verification; and portfolio reconciliation.171 As discussed in connection with Alternative 1, those requirements would impose standards of conduct in connection with the transactions at issue, but would not be expected to impose significant additional information-gathering or documentation burdens on the registered entity.172 While recognizing that certain of the Title VII security-based swap dealer requirements have similarities to the requirements applicable to broker169 See Alternative 2—proposed paragraph (d)(1)(i) of Rule 3a71–3. Exchange Act Section 3(a)(18) defines the terms ‘‘person associated with a broker or dealer’’ and ‘‘associated person of a broker or dealer’’ to encompass, inter alia, partners, officers, directors, employees and persons controlling, controlled by, or under common control with a broker or dealer. Alternative 2 shares, with Alternative 1, the definitions of ‘‘majority-owned affiliate,’’ ‘‘foreign associated person’’ and ‘‘listed jurisdiction.’’ 170 See part III.A, supra. 171 See Alternative 2—proposed paragraphs (d)(1)(ii)(A), (B) of Rule 3a71–3. 172 See part III.B.2.a, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 dealers, the Commission preliminarily believes that the arranging, negotiating or executing security-based swap activity of U.S. personnel should be carried out pursuant to standards of conduct imposed under Title VII, regardless of whether the ultimate counterparties are U.S. or non-U.S. persons. Alternative 2, like Alternative 1, also would provide that the exception would not be conditioned on the registered entity’s compliance with eligible contract participant verification, clearing rights disclosure, ‘‘know your counterparty,’’ daily mark disclosure and certain proposed risk mitigation requirements.173 As discussed above, the fact that the proposal would not be conditioned on compliance with the ECP verification requirement would not affect existing limitations on entering into security-based swaps with nonECPs.174 By virtue of being a registered broker, the registered entity also would be subject to all other applicable brokerdealer requirements under the federal securities laws and self-regulatory organization (‘‘SRO’’) rules. 3. Other Conditions Consistent with Alternative 1, and for the same reasons, Alternative 2 further would encompass conditions related to: Commission access to books, records and testimony of the non-U.S. person relying on the exception; the registered entity’s maintenance of trading relationship documentation; consent to service of process;175 disclosures to counterparties; and the non-U.S. person being subject to the financial responsibility requirements of a listed jurisdiction.176 4. Carveout From De Minimis Counting Requirements In adopting the ‘‘arranged, negotiated, or executed’’ counting requirement, the Commission recognized that arranging, negotiating or executing conduct by personnel in the United States could 173 See second alternative—proposed paragraph (d)(1)(ii)(C) of Rule 3a71–3; see also notes 130 through 137, supra, and accompanying text. Those particular Title VII requirements would be at issue only if the entity is registered as a security-based swap dealer. 174 See note 133, supra, and accompanying text. 175 Because the registered entity under Alternative 2 may be a registered broker, Alternative 2 allows for process to be served on the non-U.S. person in the manner set forth in the registered entity’s Form BD (or, consistent with Alternative 1, in the manner set forth in the registered entity’s Forms SBSD, SBSE–A or SBSE– BD). 176 See Alternative 2—proposed paragraphs (d)(1)(iii) through (d)(1)(v), (d)(2) and (d)(3) of Rule 3a71–3; see also parts III.B.3—III.B.5, supra. PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 24227 constitute dealing activity in the United States, regardless of the fact that the parties to the transactions are not U.S. persons.177 To avoid ambiguity regarding whether a registered broker’s U.S. activity under this alternative independently must be counted against the applicable de minimis thresholds— and hence potentially require the registered broker also to register as a security-based swap dealer—Alternative 2 would provide that the persons that engage in such conduct pursuant to the exception would not have to count the associated security-based swap transactions against the de minimis thresholds.178 Absent such an exception, the Commission is concerned that Alternative 2 potentially would be ineffective due to the reluctance of entities that are not registered as security-based swap dealers to engage in the arranging, negotiating or executing conduct envisioned by the proposed alternative. D. Solicitation of Comments Regarding the Proposed Amendment to Rule 3a71– 3 The Commission requests comment on all aspects of the proposed amendment to Rule 3a71–3, including the following issues: 1. Involvement of U.S. Personnel in Arranging, Negotiating and Executing Transactions Between Non-U.S. Counterparties To what extent do U.S. personnel participate in arranging, negotiating or executing activities in connection with security-based swap dealing transactions involving two non-U.S. counterparties? Commenters particularly are invited to address the following: a. What particular services do U.S. personnel typically provide as part of such activities? b. What types of information do U.S. personnel typically communicate to an affiliate’s security-based swap counterparties in connection with such activities? c. To what extent are U.S. personnel typically involved in negotiating pricing or other terms of security-based swaps in connection with such activities? d. What is the typical mode of communication (e.g., telephonic, written, in-person) used between those U.S. personnel and an affiliate’s security-based swap counterparties in connection with such activities? e. What types of instruments (e.g., securities issued by U.S. persons) 177 See ANE Adopting Release, 81 FR at 8621. Alternative 2—proposed paragraph (d)(4) of Rule 3a71–3. 178 See E:\FR\FM\24MYP2.SGM 24MYP2 24228 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 typically underlie the security-based swaps that are the subject of such transactions involving arranging, negotiating or executing activity by U.S. personnel? f. Are U.S. personnel involved in such arranging, negotiating or executing activities on behalf of non-U.S. persons that are not affiliates? If so, what services do U.S. personnel provide and what types of instruments are the subject of such activities by U.S. personnel on behalf of unaffiliated nonU.S. persons? g. Are there particular categories of arranging, negotiating or executing activity that U.S. personnel typically perform, to facilitate a non-U.S. person’s security-based swap dealing transactions with non-U.S. counterparties, that are so limited in scope that they may not trigger the concerns that led to the adoption of the ‘‘arranged, negotiated, or executed’’ counting standard? h. To what extent do U.S. personnel typically provide the primary point of contact for managing sales and trading relationships with non-U.S. person counterparties on behalf of non-U.S. affiliates engaged in security-based swap dealing activity? Conversely, to what extent is the involvement of such U.S. personnel typically incidental to a relationship that the non-U.S. person dealer manages primarily from an office outside the United States, and what is the nature of any such incidental involvement? i. To the extent U.S. personnel perform both types of functions— serving as a primary point of contact for some transactions and serving an incidental role for other transactions— are those functions determined on the basis of counterparty location, product characteristics, or on the basis of some other factors? 2. Implementation Issues Associated With the Existing ‘‘Arranged, Negotiated, or Executed’’ Counting Requirement To what extent would a conditional exception from the ‘‘arranged, negotiated, or executed’’ counting requirement be appropriate to address implementation issues potentially associated with that requirement? Commenters particularly are invited to address the following: a. What would be the expected consequences if the Commission does not adopt either proposed alternative for an exception to the de minimis counting requirement? For example, how many financial groups would expect to register one or more non-U.S. entities as security-based swap dealers absent an VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 exception? How many non-U.S. entities would such financial groups typically expect to have to register in those circumstances? Conversely, how many financial groups would be expected to register non-U.S. entities as securitybased swap dealers in the presence of this type of exception? b. What contingency plans, if any, have such financial groups drawn up to address the potential consequences associated with compliance with the ‘‘arranged, negotiated, or executed’’ counting standard? c. In practice, would such financial groups be expected to relocate U.S. personnel and/or relocate functions out of the United States to avoid having to count security-based swap transactions pursuant to the ‘‘arranged, negotiated, or executed’’ counting standard? 3. ‘‘Listed Jurisdiction’’ Condition and Definition, and Potential Effect of Barriers to the Transfer of Information Would the proposed ‘‘listed jurisdiction’’ condition and associated definition appropriately prevent the proposed exception from permitting persons that engage in security-based swap dealing activity in the United States from booking transactions into affiliated non-U.S. booking entities that are not subject to adequate financial responsibility oversight or that would not allow for sufficient access to information by the Commission? Commenters particularly are invited to address the following: a. What criteria should the Commission use to help ensure that non-U.S. persons relying on the exception are subject to adequate financial responsibility requirements? b. Would it be appropriate, as commenters previously suggested, to exclude transactions that are arranged, negotiated or executed by U.S. personnel if the non-U.S. dealer is located in a G–20 jurisdiction or is subject to the margin and capital requirements of a Basel-compliant jurisdiction? c. Would ‘‘listed jurisdiction’’ status be appropriate for the following jurisdictions: Australia, Canada, France, Germany, Hong Kong, Japan, Singapore, Switzerland, and the United Kingdom? • In this regard commenters particularly are invited to address whether listed jurisdiction status would be warranted in light of those jurisdictions’ applicable margin and capital requirements, and the effectiveness of those jurisdictions’ supervisory compliance program and enforcement authority in connection with those requirements, including in the cross-border context. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 • Commenters also are invited to address potential impediments to the Commission’s ability to promptly access information or documents regarding the activities of persons in those jurisdictions, to obtain the testimony of non-U.S. persons that are associated with those persons, and to obtain the assistance of persons relying on the exception in taking the evidence of other persons, wherever located.179 d. What criteria should the Commission use to help ensure that it can access information from non-U.S. persons relying on the exception? Commenters also are invited to address how potential impediments to the crossborder transfer of information may affect compliance with the information access condition and other conditions to the exception, including the effect of any such impediments on the registered entity’s ability to comply with conditions related to the trade acknowledgment and verification, and to the registered entity’s obligation to obtain trading relationship documentation from its non-U.S. affiliate. 4. Appropriate Counterparty Protections What conditions are appropriate to afford protections to the counterparties to the security-based swap transactions at issue, consistent with by Title VII and its implementing regulations? Commenters particularly are invited to address the following issues, and, to the extent possible, address similarities and differences between the activities implicated by the proposed exception and the activities that unregistered foreign broker-dealers may conduct pursuant to the exemption provided by Exchange Act Rule 15a–6: 180 179 As discussed above (see notes 160 through 162, supra, and accompanying text), although the Commission preliminarily does not expect to consider impediments to information access as part of initial listed jurisdiction determinations, the Commission may modify or withdraw listed jurisdiction status in the event that, in practice, the Commission or its representatives have been prevented from accessing information due to the jurisdiction’s laws and regulations. 180 Exchange Act Rule 15a–6 in part permits unregistered foreign broker-dealers to engage in certain activities in the United States in connection with major institutional investors represented by U.S. fiduciaries on an ‘‘unchaperoned’’ basis. See Rule 15a–6(a)(3). The Rule 15a–6(a)(3) exemption in part is conditioned on the requirement that a registered broker-dealer is responsible for effecting the resulting transactions, the requirement that an associated person of the registered broker-dealer be involved in all of the foreign entity’s visits to defined U.S. institutional investors, and prohibitions against the involvement of statutorily disqualified foreign associated persons of the foreign-broker dealer. Commission staff has provided statements regarding the operation of Rule 15a–6. For example, a 1997 staff no-action letter, inter alia, stated that E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 a. Do the alternatives for the proposed exception appropriately distinguish between certain security-based swap dealer requirements that will be applied to the arranging, negotiating or executing activity in the United States as a condition to the exception (i.e., requirements related to disclosures of risks, characteristics, incentives and conflicts, suitability, fair and balanced communications, trade acknowledgement and verification, initial portfolio reconciliation, and books and records), and other requirements that the Commission is not proposing to apply to that activity as a condition to the exception (i.e., requirements related to ECP verification, daily mark disclosure, clearing rights disclosure, ‘‘know your counterparty’’ and proposed risk mitigation requirements)? b. To the extent that commenters believe that there should be changes to the proposed allocation of securitybased swap dealer requirements between those that are conditions to the exception, and those that are not, please explain how those requirements should be allocated for purposes of the exception, and describe how that alternative allocation would address concerns raised by the activity of the registered entity. Please also describe the practical challenges raised by the Commission’s proposed allocation, how a different allocation would address those challenges, and whether there are any inconsistencies in the proposed allocation. c. To what extent would the transactions at issue be subject to the staff would not recommend enforcement action when foreign associated persons of a foreign brokerdealer: (i) Engaged in oral communications from outside the U.S. with certain U.S. institutional investors outside of U.S. trading hours, so long as the foreign associated persons do not accept orders (other than those involving foreign securities); and (ii) have in-person visits with certain ‘‘major’’ U.S. institutional investors, so long as those contacts do not exceed 30 days a year and the foreign associated persons do not accept orders. That letter also provided a staff statement regarding the meaning of ‘‘major U.S. institutional investor.’’ See Letter re Securities Activities of U.S.-Affiliated Foreign Dealers from Richard R. Lindsey, Director, Division of Market Regulation to Giovanni P. Prezioso, Cleary, Gottlieb, Steen & Hamilton, dated Apr. 9, 1997 (‘‘Nine Firms Letter’’), available at https:// www.sec.gov/divisions/marketreg/mr-noaction/ cleary040997.pdf. Staff guidance regarding the operation of Rule 15a–6 is summarized in ‘‘Frequently Asked Questions Regarding Rule 15a– 6 and Foreign Broker-Dealers,’’ available at https:// www.sec.gov/divisions/marketreg/faq-15a-6-foreignbd.htm. In contrast to Rule 15a–6, which provides an exemption for foreign entities’ transactions with activities involving U.S. person customers, the proposed exception to Rule 3a71–3 would permit foreign entities to make use of U.S. activity only in connection with security-based swaps with nonU.S. counterparties. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 requirements in foreign jurisdictions that are analogous to the Title VII requirements that are proposed to be applied as conditions to the exception? To what extent would the transactions at issue be subject to requirements in foreign jurisdictions that are analogous to the Title VII requirements that are not proposed to be applied as conditions to the exception? To what extent would analogous FINRA requirements apply to these transactions if the registrant is registered as a broker? d. As an alternative to the proposed conditions to this exception, should this exception instead be subject to conditions that are styled after the staff guidance that describes conditions under which foreign broker-dealers may operate in the United States pursuant to Exchange Act Rule 15a–6(a)(3)? 181 In this regard the Commission notes that foreign broker-dealers relying on Rule 15a–6 differ from foreign dealers that would avail themselves of proposed exceptions in at least two respects: First, the former are permitted to engage in only limited activity inside the United States, while the latter would be arranging, negotiating, and executing transactions using U.S. personnel on an ongoing basis; second, the former exemption applies to transactions with U.S. persons while the latter exception would apply only to transactions with non-U.S. persons. How should those differences affect the scope of any relief provided and any conditions placed on that relief? Should compliance with any or all of the requirements that are a condition to the proposed exception be eliminated, either entirely or for certain ‘‘sophisticated’’ counterparties? If so, how should ‘‘sophisticated’’ be defined for these purposes? Should any eligible contract participant be considered ‘‘sophisticated,’’ or should ‘‘sophisticated’’ encompass only a counterparty that meets a higher standard, such as a standard similar to the standards applicable to: (1) Qualified institutional buyers under Rule 144A(a)(1)–(4) 182 under the Securities Act of 1933; (2) major institutional investors, as defined in Exchange Act Rule 15a–6 and discussed in subsequent staff guidance; or (3) the security-based swap dealer suitability requirement’s institutional counterparty standard under Rule 15Fh–3(f)(4)? 183 Would this alternative type of approach appropriately balance the implementation concerns associated with the use of the ‘‘arranged, negotiated, or executed’’ test against the 181 See note 180, supra. 17 CFR 230.144A. 183 See note 180, supra. 182 See PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 24229 regulatory interests underlying the de minimis counting requirement? e. Are additional conditions necessary to help ensure that the entity that engages in arranging, negotiating or executing activity in the United States appropriately would be subject to all relevant security-based swap dealer requirements, notwithstanding a lack of contractual privity with the counterparty to the transaction? 5. Issues Potentially Associated With Specific Conditions Are there specific conditions to the proposed exception that may pose implementation issues, or that otherwise should be modified? Commenters particularly are invited to address the following: a. Suitability—Are there any aspects of the suitability requirements applicable to security-based swap dealers that would raise implementation issues in the event that the entity engaged in arranging, negotiating or executing activity in the United States makes recommendations in connection with the transactions at issue? In this regard please describe the nature of the relationship between U.S. personnel operating pursuant to the exception and the foreign counterparties, and any challenges to obtaining the information necessary to comply with the suitability requirement. To what extent, if at all, is the suitability requirement necessary in light of the institutional nature of the market and the limited suitability requirements that apply to transactions with institutional counterparties? Could the concerns addressed by Rule 15Fh– 3(f) be mitigated if the suitability condition to the exception were instead limited solely to the security-based swap dealer’s compliance with Rule 15Fh–3(f)(2)(iii), which would require the security-based swap dealer to disclose that it is acting in its capacity as a counterparty, and is not undertaking to assess the suitability of the security-based swap or trading strategy for the counterparty? b. Disclosure of risks, characteristics, material incentives and conflicts of interest—Are there implementation issues that may arise in connection with the proposed condition requiring the registered entity engaged in arranging, negotiating or executing activity in the United States to comply with requirements related to the disclosure of information regarding risks, characteristics, material incentives and conflicts of interest? Commenters particularly are invited to address whether there may be impediments related to the ability of the registered entity to disclose or gather information E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24230 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules regarding material incentives and conflicts of interest associated with the non-U.S. person relying on the proposed exception, and regarding how to address any such potential impediments. For example, should the disclosure requirement be limited to information regarding material incentives and conflicts of interest associated with the registered entity engaged in such activity in the United States? c. Disclosure that non-U.S. person is not registered—Are there implementation issues that may arise in connection with the proposed condition requiring disclosure that the non-U.S. person relying on this exception is not registered with the Commission as a security-based swap dealer, and that certain Exchange Act security-based swap requirements may not be applicable? Commenters particularly are invited to address whether disclosure of less information or additional information would be appropriate, and to address whether alternative approaches regarding the timing and manner of disclosure would be appropriate. d. Trade Acknowledgment and Verification—Should the Commission, as is proposed under Alternatives 1 and 2, condition the exception on the registered entity that engages in arranging, negotiating or executing activity in the United States complying with trade acknowledgment and verification requirements under Title VII as if they were a counterparty to the transaction? The trade acknowledgment and verification requirements apply in connection with a transaction in which a security-based swap dealer purchases or sells to any counterparty a securitybased swap. For purposes of this exception, should the Commission treat the registered entity that arranges, negotiates, or executes a security-based swap as if it purchased or sold a security-based swap for purposes of the trade acknowledgment and verification requirements? Will a security-based swap dealer (under Alternative 1 or 2) or a registered broker-dealer (under Alternative 2) that provides limited services in connection with arranging, negotiating, or executing a transaction necessarily be able to comply with the trade acknowledgment and verification requirements as if it were a party to the transaction? Will the security-based swap dealer or registered broker-dealer necessarily have all the information required for a trade acknowledgment to which it is not a party? How will it obtain verification? Would there be potential impediments to the registered entity’s ability to accurately reflect the terms of the transaction on the trade VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 acknowledgement? Would it be sufficient to condition the exception on the broker-dealer complying with the transaction confirmation requirements of Exchange Act Rule 10b–10 as if the counterparty were the ‘‘customer’’ of the broker-dealer? 184 Would it be necessary to modify the information required to be confirmed under Exchange Act Rule 10b–10 to accommodate security-based swaps? e. Affiliation condition—Are there implementation issues that would arise in connection with the proposed condition that would require the registered entity engaged in arranging, negotiating or executing activity in the United States to be a majority-owned affiliate of the non-U.S. person relying on the exception? Commenters particularly are invited to address the appropriateness of an affiliation condition, the potential use of alternatives to a majority-ownership standard in connection with the condition (e.g., common control or ‘‘wholly owned’’ standards), and any technical or other implementation issues that may accompany the use of an affiliation standard. f. Portfolio reconciliation condition— The Commission further requests comment regarding the proposed condition that would require the registered entity engaged in arranging, negotiating or executing conduct in the United States to perform the initial portfolio reconciliation required by proposed Exchange Act Rule 15Fi–3. Commenters particularly are invited to address implementation issues that may be associated with that proposed condition. Commenters also are invited to address the potential effectiveness of that proposed condition in helping registered security-based swap data repositories comply with their verification requirements. 6. Potential Additional Conditions Should the proposed exception be subject to additional conditions? Commenters particularly are invited to address the following: a. Should the exception be made unavailable in circumstances in which U.S. entities or their personnel manage the relationship with the non-U.S. counterparty to the transaction? Alternatively, should additional conditions (e.g., compliance with ECP verification and ‘‘know your counterparty’’ requirements) be applied to the exception in those circumstances? 184 The transaction confirmation requirements apply when a broker-dealer ‘‘effect[s] for or with any customer any transaction in, or [induces] the purchase or sale by such customer’’ of securities. See Exchange Act Rule 10b–10(a). PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 b. Should the exception be conditioned on the registered entity complying with ECP verification and ‘‘know your counterparty’’ requirements ‘‘as if’’ the counterparties to the nonU.S. person relying on the exception also were counterparties to the registered entity? In this regard, commenters are requested to discuss whether the registered entity reasonably would be expected to possess information regarding the counterparty to the transaction that is sufficient to permit compliance with those requirements. c. Instead, should the treatment of ECP verification and ‘‘know your counterparty’’ requirements for purposes of the exception depend in part on whether the Commission also has issued ‘‘market color’’ guidance, as discussed in part II supra. For example, if the Commission issues ‘‘market color’’ guidance, would it be likely that nonU.S. persons would rely on the guidance when their U.S. personnel have only a peripheral involvement with the resulting transaction, and that non-U.S. persons would rely on the exception when their U.S. personnel engage with the counterparty more comprehensively? In that event, should the exception require compliance with the ECP verification and ‘‘know your counterparty’’ provisions, based on the assumption that the exception would be used when U.S. personnel have a comparatively comprehensive degree of engagement with the counterparty, which would allow for compliance with those conditions? d. Alternatively, should the exception from the de minimis counting requirement be conditioned on ‘‘as if’’ compliance with those ECP verification and ‘‘know your counterparty’’ requirements, unless the registered entity has had no prior interactions with the counterparty, and there is no basis to believe that the registered entity would have further interactions with that counterparty? e. Should the exception further be conditioned on the registered entity having to disclose information regarding clearing rights? Commenters particularly are invited to address the expected application of the underlying clearing rights provisions in Exchange Act Section 3C(g)(5) to the transactions at issue. f. Should the proposed exception be conditioned on the non-U.S. person relying on the condition having some involvement in the registered entity’s arranging, negotiating or executing activity to the extent practicable, to help prevent the counterparties to these transactions from misconstruing the role E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules of the registered entity and the application of Title VII safeguards to the transactions at issue. g. Are there additional conditions that would be appropriate for incorporation into the exception? khammond on DSKBBV9HB2PROD with PROPOSALS2 7. Treatment of the Non-U.S. Person Relying on the Exception, Including Commission Access to Information To what extent would the absence of direct security-based swap dealer regulation of the non-U.S. person relying on the proposed exception— notwithstanding its use of U.S. personnel to conduct security-based swap dealing activity—raise concerns regarding gaps in the application of Title VII to transactions arising from security-based swap dealing in the United States? 185 Commenters particularly are invited to address the following: a. What issues may arise due to the lack of Commission regulation of communications between the non-U.S. person and its counterparties? Could this lack of regulation potentially facilitate improper practices in connection with dealing transactions that occur in part in the United States? b. What issues may arise due to the lack of direct Commission financial responsibility regulation of the non-U.S. person? How significant are associated concerns regarding spillovers and contagion arising from reputational effects that an affiliate’s failure may have on other affiliates within the same corporate group? c. Do the proposed provisions to (a) require the non-U.S. person relying on the exception to promptly provide the Commission with information, documents and testimony in connection with the transaction, and (b) require the registered entity to obtain and maintain related books and records, adequately provide for transparency into the dealing activities associated with transactions subject to the exception? Should the rules provide further specificity regarding the procedures for withdrawing the exception in the event of impediments to such access? Should the exception incorporate a notice provision to require the non-U.S. person relying on the exception (or the registered entity engaged in arranging, 185 Absent additional Commission action, see part III.D.10, infra, under the proposed exception the regulatory reporting and public dissemination requirements of Regulation SBSR still would apply directly to the security-based swap, by virtue of the transaction having been arranged, negotiated or executed in the United States, see Regulation SBSR Sections 908(a)(1)(v) and 908(b)(5) (and, under alternative 2, by virtue of the transaction having been effected by or through a registered brokerdealer, see Regulation SBSR Section 908(a)(1)(iv)). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 negotiating or executing activity in the United States) to inform the Commission as to the transactions being conducted in reliance on the exception? Are there modifications that would allow the Commission to obtain the necessary access to books and records at a lower cost to the non-U.S. person and the registered entity? d. For purposes of the access provisions of proposed paragraph (d)(1)(iii)(A) of Rule 3a71–3—which would require non-U.S. persons relying on the exception to promptly make their ‘‘foreign associated persons’’ available to the Commission for testimony—is the proposed ‘‘foreign associated person’’ definition in paragraph (a)(11) of the rule crafted appropriately? For example, should the proposed definition be limited so it applies only to persons who effect or who are involved in effecting security based swaps? If so, why? 8. Distinctions Between the Two Proposed Alternatives Comparatively, to what extent would the two proposed alternatives for the conditional exception effectively address implementation concerns while continuing to preserve the principles that underpin the ‘‘arranged, negotiated, or executed’’ standard? Commenters particularly are invited to address the following: a. Under the second alternative, what concerns may arise from applying Title VII business conduct requirements to brokers via condition in lieu of securitybased swap dealer registration? b. How would comparative securitybased swap dealer capital requirements and broker-dealer capital requirements affect the implementation of the two alternatives? 186 Would those capital requirements limit the ability to use a stand-alone entity to engage in arranging, negotiating or executing conduct in the United States on behalf 186 The proposed capital requirements applicable to those entities would depend on whether they are a stand-alone nonbank security-based swap dealer, a security-based swap dealer that is dually registered as a broker-dealer, a bank security-based swap dealer, or stand-alone broker-dealer. See Capital, Margin and Segregation Proposing Release, 77 FR at 70333 (proposing capital requirements for nonbank security-based swap dealers, including security-based swap dealers dually registered as broker-dealers); 80 FR 74840 (Nov. 30, 2015) (adopting capital requirements for bank securitybased swap dealers); 17 CFR 240.15c3–1 (prescribing capital requirements for brokerdealers). Those existing and proposed capital requirements are tailored, among other reasons, based on the different types of entities (e.g., a bank, a security-based swap dealer, or a broker-dealer) and the activities those entities engage in. Therefore, two different types of entities may be subject to substantially different capital requirements. PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 24231 of a non-U.S. affiliate? Would those capital requirements affect the potential use of a registered entity that also engages in a separate security-based swap dealing business, or that is registered as a swap dealer or as a bank? 187 9. Effect on Booking Practices The Commission requests comment regarding how the availability of the proposed exception would be expected to affect prospective booking practices by industry participants. Commenters particularly are invited to address the following: a. Would the proposed exception incentivize U.S.-based dealing entities to bifurcate their dealing books by prospectively booking security-based swap transactions with non-U.S. counterparties into non-U.S. affiliates, to avoid having that portion of their security-based swap businesses being subject to Title VII security-based swap dealer requirements? If so, what would be the expected extent of such booking practices? What would be the expected economic consequences? 188 b. Are the proposed conditions appropriate to help guard against any negative consequences (e.g., loss of business conduct protection, potential market fragmentation) that potentially would result from U.S.-based dealing entities using such booking practices to limit the application of Title VII to their dealing businesses involving non-U.S. counterparties? If not, what additional conditions—e.g., restrictions on the availability of the exception when the counterparty relationship is managed by U.S. personnel rather than by non-U.S. personnel of the booking entity—would be appropriate to help prevent those negative consequences? c. Would a differently tailored application of the counting requirements to cross-border transactions be appropriate, instead of or in addition to the alternatives being proposed in this release? For example, 187 For example, would the security-based swap dealer capital requirements associated with Alternative 1 effectively limit the use of that alternative to situations in which the arranging, negotiating or executing activity is conducted through a registered security-based swap dealer that engages in a separate security-based swap dealing business (apart from conducting arranging, negotiating or executing activity on behalf of an affiliate), or that also engages in a swap dealing business, or that is a bank? Conversely, would Alternative 2 better accommodate the establishment of new registered entities to conduct arranging, negotiating or executing activity consistent with the conditions to the proposed exception? 188 See part VII.A.7, infra (addressing potential number of U.S.-based dealing entities that may seek to use the exception in connection with those types of prospective booking practices). E:\FR\FM\24MYP2.SGM 24MYP2 24232 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules should a non-U.S. person engaged in dealing activity be permitted to exclude certain transactions with a U.S.-person dealer from its de minimis calculations, subject to certain conditions? If so, please describe the conditions that should apply to such an exception. Alternatively, should a non-U.S. person engaged in dealing activity be permitted to avail itself of such an exception only to the extent that it is located in a ‘‘listed jurisdiction’’? 10. Availability to Registered SecurityBased Swap Dealers As proposed, the exception not only would affect the set of dealing transactions that non-registered persons would consider when evaluating whether they fall under the securitybased swap dealer de minimis thresholds, but also would be relevant to non-U.S. persons that are registered as security-based swap dealers but that wish to withdraw their registration based on their dealing activity over the prior 12 months.189 Should the exception be made unavailable to registered security-based swap dealers in connection with the potential withdrawal of registration? Commenters particularly are invited to address whether the rationale that underpins the proposed exception, related in large part to the consequences of actions that nonU.S. persons otherwise may take to avoid security-based swap dealer registration, would also be relevant in connection with non-U.S. persons that have registered with the Commission. 11. Other Uses of ‘‘Arranged, Negotiated, or Executed’’ Criteria Should similar exceptions also be made available in connection with other Title VII requirements that in part rely on ‘‘arranged, negotiated, or executed’’ test? Commenters particularly are invited to address the following: khammond on DSKBBV9HB2PROD with PROPOSALS2 a. Regulation SBSR Commenters are invited to address the application of ‘‘arranged, negotiated, or executed’’ criteria in connection with the cross-border application of the regulatory reporting and public dissemination requirements of Regulation SBSR. Regulation SBSR requires reporting and dissemination of transactions, connected with a non-U.S. person’s security-based swap dealing activity, that have been ‘‘arranged, negotiated, or executed’’ by U.S. personnel of the non-U.S. person, or by U.S. personnel of the non-U.S. person’s 189 See note 101, supra (discussing application of proposal to registered security-based swap dealers). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 agent.190 In adopting Regulation SBSR, the Commission determined that requiring those transactions to be reported to a registered swap data repository would ‘‘enhance the Commission’s ability to oversee relevant security-based swap activity within the United States as well as to evaluate market participants for compliance with specific Title VII requirements’’ and monitor for fraudulent activity.191 The Commission further stated that public dissemination of those transactions would ‘‘contribute to price discovery and price competition in the U.S. security-based swap market’’ by providing a ‘‘more comprehensive view of activity in the U.S. market.’’ 192 The Commission is soliciting comment regarding those prior conclusions. Commenters particularly are invited to address whether the existing requirements related to the cross-border application of Regulation SBSR could cause non-U.S. person counterparties to avoid transacting with foreign dealers who use U.S. personnel to arrange, negotiate or execute securitybased swap transactions. In this regard, commenters are invited to address whether there should be any modifications to existing provisions of Regulation SBSR (and, if so, which) regarding the application of regulatory reporting and public dissemination requirements to transactions arranged, negotiated or executed in the United States. Commenters also are invited to provide their views as to whether, for a security-based swap where a non-U.S. person engages in dealing activity but relies on an exception from having to count that transaction against its de minimis threshold, Regulation SBSR should be amended to re-assign the duty to report that transaction from the nonU.S. person engaged in dealing activity to its affiliated U.S. entity (be it a registered broker-dealer or registered security-based swap dealer) that is conducting the arranging, negotiating or executing activity in the United States. Commenters further are invited to comment on possible alternative compliance mechanisms for the regulatory reporting and public dissemination requirements. For example, should Regulation SBSR be amended to conditionally permit the transaction to be reported pursuant to the requirements of the foreign 190 See Regulation SBSR Sections 908(a)(1)(v) and 908(b)(5); see also note 14, supra. Regulation SBSR was adopted pursuant to the regulatory reporting and public dissemination requirements set forth in Exchange Act Sections 13(m)(1)(C), 13(m)(1)(G) and 13A(a)(1). 191 81 FR at 53591. 192 Id. at 53592. PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 jurisdiction which applies its reporting requirements to the affiliated non-U.S. person? If so, what conditions should apply to such an approach (e.g., limiting the approach to circumstances where that jurisdiction’s reporting and dissemination requirements and practices meet certain criteria), and how should the Commission or market participants determine whether a jurisdiction meets any relevant criteria for this purpose? Alternatively, is the availability of substituted compliance in connection with the regulatory reporting and public dissemination requirements sufficient to address concerns regarding regulatory burdens potentially associated with this use of an ‘‘arranged, negotiated, or executed’’ test?193 b. Additional Title VII Requirements Commenters also are invited to address the use of an ‘‘arranged, negotiated, or executed’’ test in connection with the cross-border application of certain security-based swap dealer business conduct requirements.194 Here too, the Commission particularly requests comment regarding the potential relevance of Exchange Act Rule 15a– 6(a)(3), which in part conditionally allows unregistered foreign brokerdealers to communicate with U.S. institutional investors and major institutional investors without having to register with the Commission as brokerdealers.195 Would it be appropriate to provide conditional relief—akin to the proposed exception from the de minimis counting requirement or to the conditional broker-dealer registration exemption set forth in Rule 15a– 6(a)(3)—from relevant business conduct requirements for registered foreign security-based swap dealers in securitybased swap transactions with non-U.S. persons that the foreign dealers arrange, negotiate, or execute using personnel located within the United States? If so, should such relief be conditioned on the sophistication of the counterparty or its 193 Rule 908(c) of Regulation SBSR provides that the Title VII requirements for regulatory reporting and public dissemination of security-based swaps may be satisfied by compliance with the rules of a foreign jurisdiction that the Commission has found to have requirements that are comparable to those of Title VII. 194 Exchange Act Rule 3a71–3(c) states that a registered security-based swap dealer is not subject to certain business conduct requirements ‘‘with respect to its foreign business.’’ The ‘‘foreign business’’ definition (Rule 3a71–3(a)(9)) references the definition of ‘‘U.S. business,’’ which in relevant part includes transactions of foreign security-based swap dealers that have been arranged, negotiated or executed by personnel located in a U.S. branch or office. See Exchange Act Rule 3a71–3(a)(8)(i)(B). 195 See note 180, supra. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules advisor or compliance with any other conditions? In addition, commenters are invited to address the application of ‘‘arranged, negotiated, and executed’’ criteria in connection with the exception from the de minimis counting requirement related to the dealing transactions of non-U.S. persons with counterparties that are foreign branches of registered security-based swap dealers.196 To the extent that this counting test raises operational or other challenges, are these addressed by the guidance that the Commission has proposed to provide in Part II above regarding the scope of activity that is encompassed by the terms ‘‘arranging’’ and ‘‘negotiating’’ under the test? Alternatively, should the definition of ‘‘transaction conducted through a foreign branch’’ in Exchange Act Rule 3a71–3(b)(1)(iii)(A) be modified to incorporate exceptions similar to those being proposed here? Would such an exception from that aspect of the de minimis counting requirement potentially lead to unlimited involvement of U.S.-based personnel in such transactions? If so, how could the exception be tailored appropriately to avoid such a result? Commenters also are invited to address the use of those criteria in connection with rules regarding the cross-border application of requirements applicable to major security-based swap participants.197 12. Additional Issues The Commission further requests comment regarding any additional issues associated with the proposed exception, or regarding other potential approaches toward addressing issues associated with the ‘‘arranged, negotiated, or executed’’ counting standard. khammond on DSKBBV9HB2PROD with PROPOSALS2 IV. Proposed Guidance and Amendments Related to the Certification and Opinion of Counsel Requirements A. Discussion Since the adoption of the registration rules for SBS Entities,198 the Commission staff has received a number of questions regarding the scope of the certification and opinion of counsel requirement in Exchange Act Rule 15Fb2–4.199 Certain of these questions related to issues raised by foreign blocking laws, privacy laws, secrecy laws and other foreign legal barriers that 196 See note 81, supra. note 82, supra. 198 See Registration Adopting Release. 199 See, e.g., IIB/SIFMA 8/26/2016 Letter; see also IIB 11/16/2016 Email. 197 See VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 may limit or prohibit firms from: (i) Providing books and records directly to the Commission; or (ii) submitting to an onsite inspection or examination by SEC staff.200 Specifically, firms have requested guidance as to whether the certification and opinion of counsel may take into account different approaches available under foreign blocking laws, privacy laws, secrecy laws or other legal barriers that may facilitate firms’ ability to provide books and records to the Commission and submit to an examination or inspection by Commission staff in a manner consistent with a particular foreign legal requirement. The Commission recognizes that foreign blocking laws, privacy laws, secrecy laws or other legal barriers may vary in purpose and scope, among other aspects. For example, while some foreign laws may affect the ability of a Commission registrant to provide personal data to the Commission, other laws may prevent a Commission registrant from providing any information to the Commission or submitting to an onsite visit without specific authorization from the foreign government. In light of the differences among foreign laws, the Commission deems it appropriate to propose guidance to firms seeking clarification as to the Commission’s requirements for the certification and opinion of counsel. For example, firms have asked whether the required certification and opinion of counsel may take into account the ability in some jurisdictions for a firm to provide the Commission with access to books and records if the firm obtains the consent of the person whose information is documented in the books and records.201 One commenter 200 See, e.g., Registration Adopting Release, 80 FR at 48981. 201 See, e.g., Memorandum from the Division of Trading and Markets regarding a April 3, 2018 meeting with representatives of Societe Generale, April 3, 2018, available at https://www.sec.gov/ comments/s7-05-14/s70514-3405388-162169.pdf; Memorandum from the Division of Trading and Markets regarding a April 4, 2018 meeting with representatives of Barclays, April 4, 2018, available at https://www.sec.gov/comments/s7-05-14/s705143405597-162172.pdf; Memorandum from the Division of Trading and Markets regarding a April 11, 2018 meeting with representatives of UBS, April 11, 2018, available at https://www.sec.gov/ comments/s7-05-14/s70514-3461169-162204.pdf; Memorandum from the Division of Trading and Markets regarding a April 11, 2018 meeting with representatives of Morgan Stanley, April 11, 2018, available at https://www.sec.gov/comments/s7-0514/s70514-4035093-168391.pdf; Memorandum from the Division of Trading and Markets regarding a April 30, 2018 meeting with representatives of UBS, April 30, 2018, available at https://www.sec.gov/ comments/s7-05-14/s70514-4042895-168865.pdf; Memorandum from the Division of Trading and Markets regarding a June 4, 2018 meeting with representatives of Credit Suisse, June 5, 2018, PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 24233 also asked that the Commission clarify that in certain circumstances the certification and opinion of counsel may be based on the assumption that the nonresident security-based swap dealer will provide the Commission access to its books and records through, and submit to on-site inspection and examination with the approval of, the relevant foreign regulatory authority.202 In addition, firms have asked whether the certification and opinion of counsel should address only the laws of the ‘‘home country’’ of the nonresident SBS Entity (for example, its principal place of business or where it is incorporated), or if the Commission expects a nonresident SBS Entity to address applicable law in every jurisdiction in which the nonresident SBS Entity may conduct business or in which its counterparties, customers, or personnel may be located.203 Firms also have asked if the certification and opinion of counsel are meant to cover Commission inspection and examination of books and records in the jurisdictions in which they are located.204 The Commission has been considering these issues, and believes it would be appropriate to address certain of these concerns as described below. The guidance set forth below regarding the certification and opinion of counsel requirements would also be relevant to Exchange Act Rule 3a71–6, which allows SBS Entities to comply with certain requirements under Section 15F of the Exchange Act through substituted compliance.205 In particular, Paragraph (c)(2)(ii) of Rule 3a71–6 provides that substituted compliance applications by parties or groups of parties—other than foreign financial regulatory authorities—must include the certification and opinion of counsel associated with the SBS Entity registration requirements as if such party were subject to that requirement at the time of the request.206 Recognizing available at https://www.sec.gov/comments/s7-0812/s70812-3785770-162712.pdf; and Memorandum from the Division of Trading and Markets regarding a July 18, 2018 meeting with representatives of BNP Paribas, July 24, 2018, available at https:// www.sec.gov/comments/s7-05-14/s70514-4107153170272.pdf. 202 IIB/SIFMA 8/26/2016 Letter, at page 3. 203 See note 201, supra. 204 See IIB/SIFMA 8/26/2016 Letter, at page 2. 205 Exchange Act Rule 3a71–6. 206 Separately, paragraph (c)(3) of Rule 3a71–6 provides that foreign financial regulatory authorities may make substituted compliance requests only if they provide adequate assurances that no law or policy of any relevant foreign jurisdiction would impede the ability of any entity that is directly supervised by the foreign financial regulatory authority and that may register with the Commission as an SBS Entity to provide the E:\FR\FM\24MYP2.SGM Continued 24MYP2 24234 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules the expected time necessary for the Commission to consider substituted compliance applications it receives, the Commission welcomes submission of such applications with respect to any of its final rules for which substituted compliance is potentially available. Consistent with this position, the Commission wishes to clarify that, during the pendency of this proposal, the Commission will consider all such applications, including those submitted without a certification or opinion of counsel, by parties or groups of parties who are not foreign regulatory authorities.207 This clarification, however, does not mean that the Commission would grant any application for substituted compliance submitted by such parties or groups of parties until the required certification and opinion are filed. khammond on DSKBBV9HB2PROD with PROPOSALS2 1. Foreign Laws Covered by the Certification and Opinion of Counsel Requirements The Commission understands that the security-based swap market and the security-based swap dealing activities of many firms are global in scope. In this market, the business of any single security-based swap dealer, whether a resident or nonresident of the United States, may span multiple jurisdictions. The certification and opinion of counsel requirement was intended to address distinct challenges that may arise with respect to a nonresident SBS Entity that, unlike a resident SBS Entity, is incorporated or has its principal place of business outside the United States. In particular, the requirement is intended to provide a level of assurance regarding the Commission’s access to relevant books and records of a nonresident SBS Entity and its ability to inspect and examine them. Given the underlying objective of this requirement, the Commission is proposing to provide guidance that it would be appropriate for the certification and opinion of counsel to address only the laws of the jurisdiction or jurisdictions in which the nonresident SBS Entity maintains the covered books and records as described Commission with prompt access to the entity’s books or records, or to submit to on-site inspection and examination by the Commission. The above guidance regarding the application of the certification and opinion of counsel requirements also will inform the Commission’s assessment of whether a foreign financial regulatory authority has provided such adequate assurances as part of a substituted compliance application. 207 The Commission does not require that applications submitted by foreign regulatory authorities be accompanied by a certification or opinion of counsel. Exchange Act Rule 3a71– 6(c)(3). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 in part IV.B.2, infra (‘‘covered books and records’’). Under this proposed guidance, the certification and opinion of counsel would not need to cover other jurisdictions where customers or counterparties of the nonresident SBS Entity may be located or where the nonresident SBS Entity may have additional offices or conduct business. For example, if the nonresident SBS Entity maintains the covered books and records in the jurisdiction of its incorporation or principal place of business, the certification and opinion of counsel would address that jurisdiction. If the nonresident SBS Entity maintains its covered books and records in a jurisdiction or jurisdictions other than where it is incorporated or has its principal place of business (e.g., in a jurisdiction where it maintains a foreign branch office that conducts its security-based swap activities), the certification and opinion of counsel should address such jurisdiction or jurisdictions, provided that the laws of the jurisdiction where the firm is incorporated or jurisdictions in which it is doing business would not prevent the Commission from having direct access to the covered books and records, nor prevent the nonresident SBS Entity from promptly furnishing them to the Commission or opening them up to the Commission for an on-site inspection or examination. The Commission preliminarily believes that a certification and opinion of counsel from a nonresident SBS Entity that covers the laws of the jurisdiction or jurisdictions where its covered books and records are located, rather than the laws of all possible jurisdictions where its customers or counterparties may be located or where it may conduct business, would provide the Commission with a sufficient level of assurance that it will be able to access the relevant books and records of nonresident SBS Entities registered with it. 2. Clarification on Covered Books and Records One commenter requested that the Commission clarify that the scope of the certification and opinion of counsel requirement applies only to ‘‘U.S.Related Records’’ (as defined by the commenter) and, for a nonresident security-based swap dealer subject to the Commission’s capital and margin regulations, ‘‘Financial Records’’ (as defined by the commenter).208 The 208 See IIB/SIFMA 8/26/2016 Letter (proposing that ‘‘U.S.-Related Records’’ be defined to mean ‘‘books and records relating to security-based swap transactions entered into by the non-resident PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 commenter also would limit the scope of the certification and opinion of counsel to on-site inspection and examination of books and records located at a U.S. branch or office of a nonresident security-based swap dealer or U.S. Related Records located at the nonresident security-based swap dealer’s ‘‘U.S.-Related Foreign Locations’’ (as defined by the commenter).209 Among other things, the commenter states that this would ensure Commission access to the types of records most relevant to the Commission’s oversight responsibilities.210 The Commission believes that it would be beneficial to propose guidance on this issue to help firms that must comply with these rules understand the scope of what is covered by the certification and opinion of counsel. The Commission is proposing to provide guidance that the certification and opinion of counsel need only address: (1) Books and records that relate to the ‘‘U.S. business’’ of the nonresident SBS Entity (as defined in 17 CFR 240.3a71–3(a)(8)); and (2) financial records necessary for the Commission to assess the compliance of the nonresident SBS Entity with capital and margin requirements under the Exchange Act and rules promulgated by the Commission thereunder, if these capital and margin requirements apply to the nonresident SBS Entity. While this formulation is similar to that suggested by commenters, the Commission preliminarily believes it would be appropriate to tie the scope of the books and records covered by the certification and opinion of counsel to a firm’s ‘‘U.S. business’’ and relevant security-based swap dealer after the effective date of its registration (i) with U.S. persons, (ii) for which the nonresident [security-based swap dealer’s] obligations are guaranteed by a U.S. person or (iii) arranged, negotiated or executed on behalf of the non-resident [security-based swap dealer] by personnel located in a U.S. branch or office of the non-resident [security-based swap dealer] or its agent. Where [a security-based swap dealer] maintains such books and records in multiple locations, the [security-based swap dealer] would designate the location that is relevant for purposes of the certification and opinion;’’ and ‘‘Financial Records’’ would be defined to mean ‘‘books and records necessary for the Commission to assess the non-resident [security-based swap dealer’s] compliance with Commission capital and margin requirements.’’). 209 See id. (proposing that ‘‘U.S.-Related Foreign Locations’’ be defined to mean ‘‘non-U.S. branches and offices of the nonresident [security-based swap dealer] from which personnel arrange, negotiate or execute [security-based swap] transactions on behalf of the non-resident [security-based swap dealer] (i) with a counterparty that is a U.S. person or (ii) for which the non-resident [security-based swap dealer’s] obligations are guaranteed by a U.S. person’’). 210 Id. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 financial records, rather than to propose a new ‘‘U.S. Related Records’’ definition as suggested by the commenter. As the Commission explained in adopting a definition of ‘‘U.S business’’ in the Commission’s Title VII cross-border rules, the intent is to encompass those transactions that appear particularly likely to affect the integrity of the security-based swap market in the United States and the U.S. financial markets more generally or that raise concerns about the protection of participants in those markets.211 Accordingly, this approach would more effectively tailor the certification and opinion of counsel to the types of records the Commission would need to review, inspect or examine to determine compliance with applicable substantive requirements. Even with such clarification, however, the Commission emphasizes that, as proposed, Exchange Act Rule 18a–6(g) would require that a nonresident SBS Entity must provide the Commission with direct access to its books and records—i.e., the nonresident SBS Entity must ‘‘furnish promptly to a representative of the Commission legible, true, complete, and current copies’’ of its books and records, and permit on-site inspections and examinations of its books and records.212 The guidance above with respect to the certification and opinion of counsel would not reduce or eliminate these obligations as they are independent of, and in addition to, the certification and opinion of counsel requirement. 3. Consents Firms have noted that certain jurisdictions’ laws may permit a firm to promptly provide books and records directly to the Commission and to submit to an on-site inspection and examination at the offices of the firm located in the jurisdiction if the firm obtains consent from the natural person whose information is documented in the books and records.213 In this case, the Commission preliminarily believes that it would be appropriate for the firm’s certification and opinion of counsel to be predicated, as necessary, on the nonresident SBS Entity obtaining the prior consent of the persons whose information is or will be included in the books and records to allow the firm to promptly provide the Commission with direct access to its books and records 211 See Business Conduct Adopting Release, 81 FR at 30065. 212 See proposed Rule 18a–6(g) and discussion in Recordkeeping and Reporting Proposing Release, 79 FR at 25220. 213 See note 201, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 and to submit to on-site inspection and examination.214 As noted above, the security-based swap recordkeeping rules as proposed would require that a nonresident SBS Entity must provide the Commission with direct access to its books and records. This requirement exists independently of, and in addition to, the certification and opinion of counsel requirements. Thus if a nonresident SBS Entity intends to rely on consents, it should obtain such consents prior to registering as an SBS Entity so that it will be able to provide Commission staff with direct access to its books and records while it is conditionally registered. The certification and opinion of counsel, if provided at a later date, would be able to rely on those consents in effect when they are provided. In addition, if a nonresident SBS Entity certifies that it may rely on consents, it should continue to obtain consents on an ongoing basis so that it can continue to provide the Commission with access to books and records. In determining whether to rely on consent, a nonresident SBS Entity may also seek to explore whether an alternative basis exists under the foreign privacy laws that would permit the nonresident SBS Entity to collect and maintain the necessary data and to provide the information directly to Commission staff. Before registering with the Commission, a nonresident SBS Entity should assess whether it would be able to meet these obligations and take appropriate steps to ensure that, if registered, it will be able to comply with them. For example, if a nonresident SBS Entity is unable to obtain consent from a customer or counterparty whose information will be documented in a book or record subject to these obligations or if a customer or counterparty provides a consent then later withdraws that consent, the firm may need to cease conducting a security-based swap business with that person in order to comply with the Exchange Act and the Commission’s rules thereunder or to seek an alternative basis exists under the foreign laws that allows the nonresident SBS Entity to satisfy its obligations under the federal securities laws. 4. Open Contracts Some firms have asked for clarification that the certification and opinion of counsel would not need to cover books and records related to open 214 The firm’s opinion of counsel should, as necessary, address all relevant considerations involving consent. PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 24235 contracts,215 and expressed concern it could require firms to re-negotiate those contracts.216 The Commission preliminarily believes that the certification and opinion of counsel need not address the books and records of security-based swap transactions that were entered into prior to the date on which a nonresident SBS Entity submits an application for registration pursuant to Section 15F(b) of the Exchange Act and the rules thereunder.217 The Commission recognizes that there may be practical impediments to obtaining consents with respect to open contracts because, for example, the counterparty is in a dispute with the nonresident SBS Entity. Further, there may be questions of fairness to the extent that any potential application to open contracts could undermine the expectations that the parties had when entering into the security-based swap. 5. Commission Arrangements With Foreign Regulatory Authorities or Approvals, Authorizations, Waivers or Consents Firms have noted that while local laws or rules in some foreign jurisdictions may prevent a nonresident SBS Entity from providing the Commission with direct access to its books and records or submitting to onsite inspections or examinations, in some cases the relevant foreign regulatory authority may have entered into a Memorandum of Understanding (‘‘MOU’’) or other arrangement with the Commission to facilitate Commission access to records of nonresident SBS Entities located in the jurisdiction.218 Firms have requested guidance regarding whether the certification and opinion of counsel submitted by a nonresident SBS Entity can rely on MOUs or other arrangements foreign regulatory authorities may have entered into with the Commission to facilitate 215 For purposes of this guidance, the term ‘‘open contracts’’ would include any contract entered into by the SBS Entity prior to the date on which an SBS Entity submits an application for registration which the SBS Entity continues to hold on its books and records and under which it may have continuing obligations. 216 See notes 201 and 209, supra. 217 Cf. Business Conduct Adopting Release, 81 FR at 29969, in which the Commission stated that the business conduct rules generally would not apply to any security-based swap entered into prior to the compliance date of the rules, and generally would apply to any security-based swap entered into after the compliance date of these rules, including a new security-based swap that results from an amendment or modification to a pre-existing security-based swap. 218 See note 201, supra. E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24236 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules Commission access to records at the request of the SBS Entity. The Commission preliminarily believes that it would be appropriate, under the factors discussed below, for the certification and opinion of counsel to take into account whether the relevant regulatory authority in the foreign jurisdiction has: (i) Issued an approval, authorization, waiver or consent; or (ii) entered into an MOU or other arrangement with the Commission facilitating direct access to the books and records of SBS Entities located in that jurisdiction, including the Commission’s inspections and examinations at the offices of SBS Entities located in that jurisdiction, provided that such an approval, authorization, waiver, consent or MOU or arrangement is necessary to address legal barriers to the Commission’s direct access to books and records of the SBS Entities in that jurisdiction. However, consideration of such an approval or MOU would need to be consistent with the registration program that has been adopted by the Commission. Specifically, the Commission stated when adopting the registration rules that it must be able to access directly the books and records of nonresident SBS Entities and inspect and examine them without going through a third party, such as a foreign regulatory authority, to effectively fulfill its regulatory oversight responsibilities. Thus, it would not be appropriate to take into account such an approval or MOU if it contemplates that the nonresident SBS Entity must provide the covered books and records, as described in Section IV.A.2. above, to the foreign regulatory authority in order for that body then to provide them to the Commission. At the same time, it would be appropriate to take into consideration an MOU or other arrangement that provided for consultation or cooperation with a foreign regulatory authority in conducting onsite inspections and examinations at the foreign offices of nonresident SBS Entities. The Commission also believes it would be consistent with its registration program if the Commission is required to notify the relevant foreign regulatory authority, as described in Section IV.A.1. above, of its intent to conduct an onsite inspection or examination and staff from the foreign regulatory authority can accompany the Commission when it visits the foreign office of the nonresident SBS Entity. However, it would not be consistent with the Commission’s interpretation of the requirement to rely on an MOU or other arrangement if, whether by the terms of VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 any relevant agreement, under provisions of local law, or in light of prior practice, consultation or cooperation with the foreign regulatory authority restricts the Commission’s ability to conduct timely inspections and examinations of the books and records in the foreign office of the nonresident SBS Entity. 6. Proposed Amendment to Rule 15Fb2– 1 Related to the Timing of Certification and Opinion of Counsel Required by Rule 15Fb2–4(c)(1) As described in the SBS Entity Registration Adopting Release, an SBS Entity is conditionally registered with the Commission when it submits a complete application on Form SBSE, SBSE–A, or SBSE–BD, as appropriate, and the Form SBSE–C senior officer certifications.219 To be complete, a Form SBSE, SBSE–A, or SBSE–BD would generally need to include the Schedule F certification and opinion of counsel. The Commission acknowledges that a nonresident SBS Entity may be unable to provide the certification or opinion of counsel required under Rule 15Fb2– 4(c)(1) by the time the entity will be required to register because efforts to address legal barriers to the Commission’s direct access to books and records are still ongoing. For example, the relevant regulatory authority in the foreign jurisdiction where the nonresident SBS entity maintains its covered books and records may be in the process of (i) issuing an approval, authorization, waiver or consent or (ii) negotiating an MOU or other arrangement with the Commission. The Commission recognizes that absent relief such nonresident SBS Entities will bear the cost of lowering or restructuring the market activity below the annual thresholds that would trigger registration requirements, an outcome that could create significant market disruptions.220 Accordingly, the Commission is proposing to amend Exchange Act Rule 15Fb2–1 to provide additional time for a nonresident SBS Entity to submit the certification and opinion of counsel required under Rule 15Fb2–4(c)(1). Specifically, the Commission is proposing new paragraphs (d)(2) and (e)(2) of Exchange Act Rule 15Fb2–1. Proposed paragraph (d)(2) would provide that a nonresident applicant that is unable to provide the certification and opinion of counsel required under Rule 15Fb2–4(c)(1) shall be conditionally registered for up to 24 219 17 CFR 240.15Fb2–1(d). Registration Adopting Release, 80 FR at 220 See 49008. PO 00000 Frm 00032 months after the compliance date for Rule 15Fb2–1 if the applicant submits a Form SBSE–C and a Form SBSE, SBSE– A or SBSE–BD, as appropriate, that is complete in all respects but for the failure to provide the certification and the opinion of counsel required by Rule 15Fb2–4(c)(1). Proposed paragraph (e)(2) would provide that if a nonresident SBS Entity became conditionally registered in reliance on paragraph (d)(2), the firm would remain conditionally registered until the Commission acts to grant or deny ongoing registration, and that if the nonresident SBS Entity fails to provide the certification and opinion of counsel within 24 months of the compliance date for Rule 15Fb2–1, the Commission may institute proceedings to determine whether ongoing registration should be denied. As indicated in the Registration Adopting Release,221 once an SBS Entity is conditionally registered, all of the Commission’s rules applicable to registered SBS Entities will apply to the entity and it must comply with them. Further, this proposed relief would be available only for the duration of the 24 month period immediately following the compliance date for Rule 15Fb2–1. B. Solicitation of Comments Regarding Proposed Guidance and Amendments Related to the Certification and Opinion of Counsel Requirements The Commission requests comment on all aspects of the proposed guidance and amendments. 1. Foreign Laws Covered by the Certification and Opinion of Counsel Requirements a. If the scope of the certification and opinion of counsel requirements are limited as described above, are there situations in which a nonresident SBS Entity will nonetheless be unable to provide the required certification and opinion of counsel because the laws of another jurisdiction prevent a nonresident SBS Entity from providing the Commission with access to its books and records? If so, in what jurisdictions? b. Are there any other types of foreign laws, regulations or requirements that may prevent a nonresident SBS Entity from providing Commission staff with access to its books and records or impede the staff’s ability to conduct onsite examinations? c. Could there be a situation where the laws of a jurisdiction where customers, counterparties or employees of a nonresident SBS Entity may be located, but where the nonresident SBS Entity maintains no books and records, could impose a legal barrier that would limit or prohibit the nonresident SBS Entity’s ability to either collect personal or transactional data regarding a customer, counterparty or employee or provide that 221 Registration n.52. Fmt 4701 Sfmt 4702 E:\FR\FM\24MYP2.SGM 24MYP2 Adopting Release, 80 FR at 48970 khammond on DSKBBV9HB2PROD with PROPOSALS2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules data directly to the Commission? If so, should a nonresident SBS Entity that has customers, counterparties or employees in such a jurisdiction also be required to include consideration of that jurisdiction or jurisdictions as part of its certification and opinion of counsel? In this situation, how could the Commission staff obtain adequate assurance that it would be able to access a nonresident registrant’s books and records? 2. Clarification on Covered Books and Records a. Does the proposed guidance adequately address the concerns raised by commenters? Would the guidance appropriately define the scope of the books and records covered by the certification and opinion of counsel to ‘‘U.S. business’’ as defined in Rule 3a71– 3(a)(8) and the financial records of certain registrants? Should additional books and records be included? If so, which books and records and why? Alternatively, are there other books and records that should be excluded from the scope of what is covered by the certification and opinion of counsel? If so, which books and records and why? b. Rather than using the U.S. business definition, should the Commission instead follow the approach suggested by the commenter—to establish definitions for ‘‘U.S. Related Records,’’ ‘‘Financial Records,’’ and ‘‘U.S. Related Foreign Locations’’ solely for the purpose of scoping records in or out of the requirements? If so why? c. Would the proposed approach limit the Commission’s ability to assess how a nonresident SBS Entity may address conflicts between the trades with a U.S. counterparty and other trades outside the U.S.? If so, are there any other methods the Commission could use to investigate those conflicts? 3. Consents a. Does the proposed guidance adequately address the concerns raised by commenters? b. Is reliance on consents a viable option to address not only data privacy, but secrecy and blocking laws or regulations? c. Should the Commission allow nonresident SBS Entities to rely on consents if the person providing consent is able to later withdraw that consent? How do nonresident SBS Entities plan to address situations where a customer, counterparty, employee or other person later withdraws consent? d. If a nonresident SBS Entity intends both to rely on consents as a basis for its certification and opinion of counsel and to delay the submission of the certification and opinion of counsel in reliance on proposed Rule 15Fb2–1(d)(2), should the nonresident SBS Entity be allowed to operate without consents in place until it provides the certification and opinion of counsel rather than when it is conditionally registered as contemplated by the proposed amendments? e. If relying on consents as a basis for the certification and opinion of counsel, should a nonresident SBS Entity be required to notify the Commission, as well as make and keep current books and records to reflect these consents and whether a consent is later withdrawn? f. Should nonresident SBS Entities obtain consents every time they enter into a new VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 transaction with a counterparty or should a global consent in a master agreement be sufficient? g. Is the consent mechanism a feasible long term solution for providing the Commission with direct access to an SBS Entity’s books and records and submitting to onsite inspections and examinations? If not, what are the legal and regulatory challenges for a nonresident SBS Entity seeking to rely on consents? For example, how would nonresident SBS Entities subject to the European Union General Data Protection Regulation (‘‘GDPR’’) plan to address guidance that, due to the nature of the relationship between employees and employers, employee consent may not be considered to be freely given under the GDPR,222 and that consent might prove not to be a feasible long term solution for transfers to third countries under the GDPR? 223 Are there any other factors that should be considered such as, for example, the jurisdiction and the type of law at issue (e.g., privacy, secrecy, blocking statute, etc.)? 4. Open Contracts a. Would the guidance adequately address the concerns raised by commenters? Is the date on which a nonresident SBS Entity submits a registration the appropriate point from which to apply the certification and opinion of counsel requirement? b. Should nonresident SBS Entities nonetheless be required to provide Commission staff with aggregated information, such as the number of open contracts, the total dollar value of open contracts, or percentage of open contracts for which it may have or lack consent to provide information to regulators? c. Should the proposed guidance also exclude contracts open on the date a nonresident SBS Entity submits a registration where there is no renegotiation of terms and the position is simply serviced until it rolls off the firm’s books and records? If so, why? Would that impair the Commission’s ability to adequately regulate nonresident SBS Entities? 5. Reliance on Commission Arrangements With Foreign Regulatory Authorities a. Does the guidance adequately address the concerns that have been raised in this regard? If not, why not and what additional guidance is needed? b. Should arrangements with foreign regulatory authorities contain any special language or terms to assure that Commission staff has direct access to a nonresident SBS Entity’s books and records and the ability to conduct onsite inspections or examinations? c. Are there situations in which multiple foreign regulatory authorities would enter into an MOU or other arrangement? 222 See Article 29 Working Party, Guidelines on consent under Regulation 2016/679 (adopted Apr. 10, 2018), available at https://ec.europa.eu/ newsroom/article29/item-detail.cfm?item_ id=623051. 223 See European Data Protection Board, Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679 (adopted May 25, 2018), available at https://edpb.europa.eu/sites/edpb/files/ files/file1/edpb_guidelines_2_2018_derogations_ en.pdf. PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 24237 6. Proposed Amendment to Rule 15Fb2–1 Related to the Timing of Certification and Opinion of Counsel Required by Rule 15Fb2– 4(c)(1) a. Does 24 months from the compliance date for Rule 15Fb2–1 provide an appropriate time period to allow a nonresident SBS Entity to submit the required certification and opinion of counsel? Should the Commission shorten the time period? Should the Commission extend the time period? Should the Commission provide for a process by which an applicant can submit a request for an extension of time? For example, where good cause is shown, should the Commission or its staff be able to extend the time period upon request by a nonresident firm? b. How would the 24 month period facilitate the ability of a nonresident SBS entity to submit the required certification and opinion of counsel when foreign blocking laws, privacy laws, secrecy laws and other foreign legal barriers exist in the jurisdiction where the offices of the nonresident SBS Entity are located? Are there circumstances other than those contemplated in Section IV under which a nonresident SBS Entity would be unable to submit the required certification and opinion of counsel? If so, would the 24 month period address such circumstances? c. Proposed Rule 15Fb2–1(e)(2) provides that if an nonresident applicant is unable to provide the certification and opinion of counsel as required by Rule 15Fb2–4(c)(1) within the 24 month time period, the Commission may institute proceedings to determine whether ongoing registration should be denied. Should the Commission adopt a different approach in cases where a nonresident application fails to provide the certification or opinion of counsel within the 24 month time period? If so, please explain why and provide a description of the approach. For example, should the Commission consider the application incomplete if the nonresident applicant is unable to provide the required certification and opinion of counsel within the 24 month time period, thereby automatically terminating the applicant’s conditional registration and eliminating the need for the Commission to institute proceedings to determine whether the application should be denied? In the alternative, should the Commission require nonresident applicants to certify that if they do not provide the certification and opinion of counsel within the 24 month period, they will withdraw from registration and cease any securitybased swap dealing activities that otherwise would require registration within a specified period after the 24 month period expires? 224 If so, what period would be reasonable? d. Should SBS Entities that conditionally register without signing the Schedule F certification and providing an opinion of counsel be required to disclose to counterparties the risk that the Commission 224 In other contexts, the Commission has permitted the registration of a person that was not immediately eligible to register as an investment adviser, subject to an undertaking that the person will withdraw from registration if it did not meet the registration requirements within a specified period of time. See Rule 203A–2(c) under the Investment Advisers Act of 1940. E:\FR\FM\24MYP2.SGM 24MYP2 24238 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules may institute proceedings to deny registration if the firm is, after 24 months, still unable to file with the Commission a complete Schedule F certification and opinion of counsel? Should the Commission impose any additional requirements on nonresident SBS Entities that are conditionally registered pursuant to proposed Rule 15Fb2–1(d)(2)? If so, which requirements and why? e. Alternatively, should the Commission eliminate the certification and opinion of counsel requirements and instead rely solely on the underlying obligations of the registered nonresident SBS Entity to comply with all applicable regulatory requirements? Why or why not? f. As an another alternative, should the Commission publish a list of nonresident SBS Entities registered with it on the Commission’s public website and note the conditional registration status of any nonresident SBS Entities that have not yet provided a Schedule F certification and opinion of counsel? Why or why not? Would provision of this type of information be beneficial to counterparties? V. Proposed Amendment to Commission Rule of Practice 194 A. Overview of Proposed Rule of Practice 194(c)(2) In furtherance of the goal of more closely harmonizing Commission rules with the approach followed under the CFTC regime, and based on renewed concerns raised by certain market participants,225 the Commission is proposing new paragraph (c)(2) of Rule of Practice 194.226 Proposed paragraph (c)(2) would provide an exclusion from the statutory disqualification prohibition in Section 15F(b)(6) of the Exchange Act for an SBS Entity with respect to an associated person who is a natural person who (i) is not a U.S. person 227 and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch 228 of a counterparty that is a U.S. person.229 225 See note 243, supra. discussed above, Exchange Act Section 15F(b)(6) provides that the Commission may establish exceptions to its statutory prohibition by ‘‘rule, regulation, or order.’’ 15 U.S.C. 78o–10(b)(6). In addition, Exchange Act Section 15F(b)(4) provides the Commission with authority (other than certain inapplicable exceptions specified in Exchange Act Section 15F(b)(4)(d) and (e)) to ‘‘prescribe rules applicable to security-based swap dealers and major security-based swap participants.’’ 15 U.S.C. 78o–10(b)(4). 227 The term ‘‘U.S. Person’’ is defined in Exchange Act Rule 3a71–3(a)(4). See 17 CFR 240.3a71–3(a)(4). 228 The term ‘‘transaction conducted through a foreign branch’’ is defined in Exchange Act Rule 3a71–3(a)(3). See 17 CFR 240.3a71–3(a)(3). 229 This relief, however, is not relevant to an associated person effecting or involved in effecting khammond on DSKBBV9HB2PROD with PROPOSALS2 226 As VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 However, an SBS Entity would not be able to avail itself of this exclusion if the associated person of that SBS Entity is currently subject to any order described in subparagraphs (A) and (B) of Section 3(a)(39) of the Exchange Act, with the limitation that an order by a foreign financial regulatory authority 230 as provided in subparagraphs (B)(i) and (B)(iii) of Section 3(a)(39) shall only apply to orders by a foreign financial regulatory authority in the jurisdiction where the associated person is employed or located. By way of example, the limitation concerning an associated person of an SBS Entity who is currently subject to an order described in subparagraphs (A) and (B) of Exchange Act Section 3(a)(39) would include, among other things, situations where the associated person of an SBS Entity has been barred or suspended from being associated with a member of an SRO 231 or is subject to an order by the Commission barring or suspending such person from being associated with certain regulated entities, including, but not limited to, SBS Entities and brokerdealers.232 As discussed further below, this provision is meant to address situations where the Commission, CFTC, a SRO (e.g., FINRA), a registered futures association (the National Futures Association, ‘‘NFA’’),233 or a foreign financial regulatory authority has affirmatively made a determination to not allow an associated person to participate in, for example, the securitybased swap market, some other sector of the U.S. securities markets (e.g., as broker-dealers or as investment advisers), some other sector of the U.S. financial market (e.g., the U.S. swap market) or some sector of the foreign financial markets. Additionally, the exclusion would only apply to associated persons who are natural persons, as the Commission has separately within Rule of Practice 194 provided an exclusion for an SBS Entity from the prohibition in Exchange Act Section 15F(b)(6) with respect to all associated person entities—regardless of security-based swaps, to the extent that such person’s ‘‘functions are solely clerical or ministerial,’’ given that such persons are excluded from the definition of associated person under to 15 U.S.C. 78c(a)(70)(B) and, therefore, not subject to the prohibition in Section 15F(b)(6). 230 See 15 U.S.C. 78c(a)(52) (defining the term ‘‘foreign financial regulatory authority’’ to include, among other regulatory authorities, ‘‘foreign securities authorities’’ as defined in Exchange Act Section 3(a)(50) (15 U.S.C. 78c(a)(50)). 231 See 15 U.S.C. 78c(a)(26) (defining the term ‘‘self-regulatory organization’’). 232 See, e.g., 15 U.S.C. 78c(a)(39)(A) and (B)(i)(II). 233 See 7 U.S.C. 21. PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 whether the associated person entity is located within or outside of the U.S.234 B. Comments Received Requesting That the Commission Provide Relief Both before and after the Commission adopted its SBS Entity registration rules, commenters requested that the Commission provide an exclusion from or, in the alternative, narrow the scope of, the prohibition in Exchange Act Section 15F(b)(6) with respect to associated persons of SBS Entities who are not U.S. persons and who do not interact with U.S. persons.235 For example, in connection with the Commission proposing registration requirements for SBS Entities, a commenter stated that it was concerned that the statutory disqualification requirements in Exchange Act Section 15F(b)(6) would apply to a foreign registered SBS Entity on an entity-level, as opposed to as a transaction-level requirement, without regard to the identity of the counterparty and, therefore, would be applicable to all associated persons of the foreign registered SBS Entity that effect or are involved in effecting security-based swap transactions.236 The commenter noted that this would result in situations where non-U.S. associated persons of non-U.S. SBS Entities who do not interact with U.S. customers would be subject to the statutory disqualification requirements in Exchange Act Rule 15Fb6–2(b) and, as a result, non-U.S. associated persons of non-U.S. SBS Entities would be required to submit to U.S. background checks for statutory disqualification purposes.237 In support of the commenter’s request that the Commission re-categorize the statutory disqualification requirements as a transaction-level requirement, the commenter noted that the Commission’s current approach diverges from that adopted by the CFTC,238 as well as the Commission’s treatment of ‘‘foreign 234 See 17 CFR 240.194(c); see also part I.C.3, supra (discussing the Rule of Practice 194 Adopting Release, 84 FR at 4906). 235 See, e.g., Letter from IIB, dated Aug. 21, 2013 (‘‘IIB 8/21/13 Letter’’) at 20, available at https:// www.sec.gov/comments/s7-02-13/s70213-46.pdf; see also IIB/SIFMA 6/21/18 Letter at 2, 4, available at https://www.sec.gov/comments/s7-05-14/s705143938974-167037.pdf; IIB/SIFMA 8/26/16 Letter, at 3–5; Letter from SIFMA, dated Dec. 16, 2011 (‘‘SIFMA 12/16/11 Letter’’) at 8, available at https:// www.sec.gov/comments/s7-40-11/s74011-4.pdf. 236 See Registration Adopting Release, 80 FR at 48977 nn.109–11 (citing IIB 8/21/13 Letter at 20). 237 See IIB 8/21/13 Letter at 20. 238 See id. at 20 (noting that the CFTC does not apply its statutory disqualification requirements to associated persons of its registrants who engage in activity outside the United States and limit such activity to customers located outside the United States). E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 associated persons’’ of foreign brokerdealers.239 The commenter also stated that a transaction-level approach would preserve the Commission’s resources to better serve customer protection interests within the United States, and that the Commission’s interests in protecting foreign customers are limited, while ‘‘foreign regulators have a strong interest in regulating such activity.’’ 240 Finally, the commenter opined that limiting background checks to personnel interacting with U.S. persons would also help eliminate potential conflicts with local privacy laws, which in some cases may prohibit background checks for foreign employees.241 In response to the commenter, the Commission explained that the requirements in Rule 15Fb6–2(b) regarding questionnaires or applications and background checks are important elements of each SBS Entity’s determination with respect to whether its associated persons that effect or are involved in effecting security-based swap transactions are subject to statutory disqualifications. The Commission also stated that it was not convinced, at the time, of the need or basis to provide an exclusion for SBS Entities from the statutory disqualification requirements with respect to certain of their associated persons, and made a determination to treat the statutory disqualification requirements as entity-level requirements, as opposed to a transaction-level requirement, applicable to all associated persons of the registered foreign SBS Entity that effect or are involved in effecting security-based swap transactions.242 More recently, market participants have raised the same concerns expressed in the comment letters outlined above.243 For example, commenters have argued that, because most of the CFTC’s rules have been in effect for several years, greater harmonization would ‘‘help facilitate prompt implementation of the Commission’s Title VII regime with minimal disruption to the SBS market and robust protections and lower costs for investors and other end-users.’’ 244 Relatedly, the Commission also received 239 See id. (citing Rule 15a–6(b)(2) and stating that the Commission, in that rule, limited the definition of ‘‘foreign associated person’’ to those associated persons of a foreign broker or dealer who participate in the solicitation of certain U.S. investors). 240 Id. 241 See id. 242 See Registration Adopting Release, 80 FR at 48978. 243 See, e.g., note 28, supra. 244 IIB/SIFMA 6/21/18 Letter at 1. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 comments requesting that the Commission harmonize aspects of its Rule 15Fb6–2(b) with the CFTC’s regulations or allow for substituted compliance.245 As discussed above, Rule 15Fb6–2(b) requires an SBS Entity to obtain a questionnaire or application for employment—documents that are required under paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5—which would serve as a basis for a background check to verify that an associated person is not subject to statutory disqualification. However, as discussed below in Section VI.A., the proposed modification to proposed Rule 18a–5 would provide that a stand-alone or bank SBS Entity is not required to make and keep current a questionnaire or application for employment executed by an associated person if the SBS Entity is excluded from the statutory disqualification prohibition in Exchange Act Section 15F(b)(6) with respect to such associated person (e.g., the exclusion from the statutory disqualification prohibition in Section 15F(b)(6) provided by proposed Commission Rule of Practice 194(c)(2)). C. Proposed Rule of Practice 194(c)(2) Proposed Rule of Practice 194(c)(2) would more closely harmonize the Commission’s rules with the CFTC’s approach to statutory disqualification as it applies to the activities of nondomestic associated persons of CFTC registered Swap Entities. Under CEA Section 4s(b)(6), which parallels Exchange Act Section 15F(b)(6), and CFTC staff’s related guidance 246 Swap Entities are not required to comply with the prohibition in CFTC Regulation 23.22(b) with respect to non-domestic associated persons who deal only with 245 See IIB/SIFMA 8/26/16 Letter, at 3–5 (requesting that the Commission exclude associated persons employed or located in a non-U.S. branch or office of an SBS Entity or an affiliate from the requirement in Rule 15Fb6–2(b) to prepare and maintain a questionnaire or application for employment executed by such associated person where certain conditions are met, including that the associated person does not effect and is not involved in effecting security-based swaps with U.S. counterparties on behalf of the SBS Entity); see also IIB/SIFMA 6/21/18 Letter, at 2. 246 Under the CFTC’s and the NFA’s current process for granting relief from CEA Section 4s(b)(6)—which is available through no-action relief granted by CFTC staff with respect to persons that are not exempt from Section 4s(b)(6) pursuant to CFTC Regulation 23.22(b)—a swap entity may make an application to the NFA, the sole registered futures association, to permit an associated person of a Swap Entity subject to a statutory disqualification to effect or be involved in effecting swaps on behalf of the swap entity. See CFTC Letter No. 12–15, at 5–8 (Oct. 11, 2012), available at https://www.cftc.gov/ucm/groups/public/@lrletter general/documents/letter/12-15.pdf. PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 24239 non-domestic swap counterparties.247 Absent such relief, a Swap Entity would be subject to the prohibition in CFTC Regulation 23.22(b) even with respect to an associated person who engages in activity from a location outside the United States and even when such person limits their activity to counterparties located outside the United States.248 In proposing Rule of Practice 194(c)(2), the Commission is seeking to balance harmonization with the approach to regulating the activities that non-domestic associated persons of Swap Entities engage in under the CFTC regime and the attendant benefits and cost savings against the potential effect of certain risks, including financial, counterparty, compliance, and reputational risks of having statutorily disqualified associated persons effecting or involved in effecting security-based swap transactions for registered SBS Entities. Given the high degree of integration between the swap and security-based swap markets,249 more closely aligning with the existing baseline for disqualification of swap dealer personnel could result in certain benefits, such as reducing regulatory complexity and lessening costs on market participants that are duallyregistered as Swap Entities with the CFTC. For example, as a result of the proposed exclusion, SBS Entities dually-registered as Swap Entities with the CFTC could experience economies of scope in employing non-U.S. natural persons in their swap and securitybased swap businesses.250 As discussed in the Rule of Practice 194 Adopting Release, the Commission estimates that approximately 46 out of 50 entities likely to register with the Commission as security-based swap dealers are already registered with the CFTC as 247 See CFTC Letter No. 12–43 (Dec. 7, 2012) at 2–4, available at https://www.cftc.gov/sites/default/ files/idc/groups/public/@lrlettergeneral/documents/ letter/12-43.pdf. Specifically, CFTC staff stated in the letter, in relevant part, that staff’s no-action position was limited to associated persons who effect or are involved in effecting swaps from a location outside of the United States, its territories or possessions, and limit such activities to counterparties located outside the United States, its territories or possessions. CFTC staff also noted that the no-action positions provided in this letter represent the positions of CFTC staff only, and do not necessarily represent the positions of the CFTC or its Commissioners. 248 See id. at 4. 249 See part VII.D, infra (noting that the swap and security-based swap markets involve largely the same group of dealers and most of the same counterparties). 250 See part VII.D.1, infra. E:\FR\FM\24MYP2.SGM 24MYP2 24240 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules swap dealers.251 The proposed exclusion should, at least to some extent, reduce the likelihood of securitybased swap dealers exiting the securitybased swap business and, as a result, not registering with the Commission, which could affect competition in the provision of security-based swap dealing services. Absent the proposed exclusion, SBS Entities would be unable to have an associated person subject to a statutory disqualification, who would be permitted to effect certain swap transactions under the CFTC’s approach, also effect security-based swap transactions, unless the SBS Entity obtained relief from the Commission under Rule of Practice 194. This difference between the CFTC’s approach and the Commission’s rules would result in costs related to replacing or reassigning statutorily disqualified associated non-U.S. persons or applying to the Commission for relief. In addition, this difference could disrupt existing counterparty relationships across closely linked swap and securitybased swap markets. However, under the proposed exclusion, non-U.S. person counterparties of SBS Entities would be able to continue interacting with the same non-U.S. associated persons of the same SBS Entities across interconnected markets without delays related to Commission review under Rule of Practice 194. As noted above, this may result in lower transaction costs for SBS Entities that, in turn, may flow to both their U.S. and non-U.S. person counterparties. This proposal is consistent with exceptions the Commission provided in its business conduct rules for SBS Entities.252 The Commission also notes that, in adopting the definition of ‘‘U.S. business’’—which does not include transactions conducted through a foreign branch of a U.S. person 253—the Commission stated that it is concerned principally with those transactions that appear particularly likely to affect the integrity of the security-based swap 251 See khammond on DSKBBV9HB2PROD with PROPOSALS2 Rule of Practice 194 Adopting Release, 84 FR at 4935–36 (discussing the economic baseline for Rule of Practice 194 and stating that approximately 46 out of 50 entities likely to register with the Commission as security-based swap dealers are already registered with the CFTC as swap dealers). 252 Under Exchange Act Rule 3a71–3(c), a registered security-based swap dealer, with respect to its ‘‘foreign business’’ (as that term is defined in Rule 3a71–3(a)(9)), shall not be subject to requirements of the Commission’s business conduct rules—other than the supervision requirements pursuant to Exchange Act Section 15F(h)(1)(B). See also Exchange Act Rule 3a67–10(d) (providing an analogous exclusion for registered U.S. major security-based swap participants). 253 See 17 CFR 3a71–3(a)(8)(i)–(ii). market in the United States and the U.S. financial markets more generally or that raise concerns about the protection of participants in those markets.254 The Commission explained that this exception reflected its view at the time that transactions between the foreign branch of a U.S. person and a non-U.S. person, in which the personnel arranging, negotiating, and executing the transaction are all located outside the United States, are less likely to affect the integrity of the U.S. market and reflects the Commission’s consideration of the role of foreign regulators in nonU.S. markets.255 As the Commission has explained previously, the Dodd-Frank Act generally is concerned with the protection of U.S. markets and participants in those markets.256 The proposed amendment would exclude, subject to certain limitations, SBS Entities from the statutory disqualification prohibition in Exchange Act Section 15F(b)(6) with respect to their associated natural persons who (i) are not U.S. persons and (ii) do not effect and are not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person. As the Commission discussed in the Rule of Practice 194 Adopting Release,257 and in part VII.D.2 of the Economic Analysis below, the Commission appreciates that there is a dearth of research on the economic effect of statutory disqualification in derivatives markets, and the broader economic research on other markets is somewhat ambiguous. Nevertheless, some research suggests that increasing the ability of a statutorily disqualified person to continue to effect or be involved in effecting transactions on behalf of a registered SBS Entities may give rise to higher compliance and counterparty risks, may increase adverse selection costs,258 and may reduce competition among higher quality associated persons.259 On the other VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 254 See ‘‘Business Conduct Standards for SecurityBased Swap Dealers and Major Security-Based Swap Participants,’’ Exchange Act Release No. 77617, (Apr. 14, 2016) 81 FR 29960, 30065 (May 13, 2016) (‘‘Business Conduct Adopting Release’’). 255 See id. at 30065–66, n.1330 (citing the CrossBorder Proposing Release, 78 FR at 31017). 256 See id. at 30065. 257 See Rule of Practice 194 Adopting Release, 84 FR at 4941. 258 See note 477, infra (noting that, with respect to a problem commonly known as adverse selection, when information about counterparty quality is scarce, market participants may be less willing to enter into transactions and the overall level of trading may fall). 259 See part VII.D, infra. PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 hand, some research suggests that greater flexibility in employing disqualified persons may actually increase competition among SBS Entities and their associated persons and benefit counterparties.260 The Commission also notes that the scope of conduct that gives rise to disqualification is broad and includes conduct that may not pose ongoing risks to counterparties.261 In addition, because the overwhelming majority of dealers and most counterparties transact across both swap and security-based swap markets, differential regulatory treatment of disqualification in swap and security-based swap markets may increase costs of intermediating transactions for some SBS Entities, which may be passed along to counterparties in the form of higher transaction costs, and may disrupt existing counterparty relationships.262 The potential for increased risk may be mitigated by other factors. For example, the proposed exclusion would not limit or otherwise affect the Commission’s existing authority to institute proceedings under Exchange Act Section 15F(l)(3) to censure, place limitations on the activities or functions of such person, or suspend for a period not exceeding 12 months, or bar such person from being associated with an SBS Entity.263 In addition, SBS Entities may choose not to use this proposed exclusion if the reputational and compliance risks associated with hiring and retaining statutorily disqualified persons may outweigh the costs SBS Entities may face if they decide to fire or replace statutorily disqualified persons who may otherwise have valuable skills, expertise, or counterparty relationships.264 Furthermore, the security-based swap market is largely an institutional one,265 and institutional counterparties (e.g., banks, pension funds and insurance companies) may be better able to mitigate or offset the potential for higher counterparty risks, including, by among 260 See id.; see also Jonathan Berk & Jules H. van Binsbergen, ‘‘Regulation of Charlatans in High-Skill Professions’’ (Stanford University Graduate School of Business, Research Paper No. 17–43, 2017), available at https://ssrn.com/abstract=2979134. 261 See id. 262 See id. 263 See 15 U.S.C. 78o–10(l)(3); see also 15 U.S.C. 78u–3 (authorizing cease-and-desist proceedings by the Commission). Accord Rule of Practice 194 Adopting Release, 84 FR at 4912 n.72 (discussing the same statutory authority). 264 See part VII.D.1 and VII.D.2, infra. 265 See id. (citing the economic baseline in the Rule of Practice 194 Adopting Release, and noting that investment advisers, banks, pension funds, insurance companies, and ISDA-recognized dealers account for 99.8% of security-based swaps transaction activity). E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 other things, requesting, as a business practice, representations that the associated persons they deal with have not triggered an event giving rise to statutory disqualification. Accordingly, the Commission is proposing an exclusion from the statutory disqualification prohibition in Section 15F(b)(6) of the Exchange Act for SBS Entities with respect to an associated person who is a natural person who: (i) Is a not a U.S. person, and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person. The Commission also notes that, as discussed further below in Section VI.A., proposed modifications to proposed Rule 18a–5 would provide that a stand-alone or bank SBS Entity is not required to make and keep current a questionnaire or application for employment executed by an associated person if the SBS Entity is excluded from the statutory disqualification prohibition in Exchange Act Section 15F(b)(6) with respect to such associated person (e.g., the exclusion proposed in Rule of Practice 194(c)(2)). D. Limitation on Proposed Rule of Practice 194(c)(2) The Commission also is proposing a limitation where an SBS Entity would not be able to avail itself of the exclusion from the prohibition in Exchange Act Section 15F(b)(6) as set forth in proposed paragraph (c)(2)—and would therefore need to use the process outlined in Rule of Practice 194 to seek relief from the statutory prohibition in Exchange Act Section 15F(b)(6). Under the proposed limitation, an SBS Entity would not be able to avail itself of the exclusion if the associated person of that SBS Entity is currently subject to an order that prohibits such person from participating in the U.S. financial market, including the U.S. securities or swap market, or foreign financial markets. More specifically, an SBS Entity would not be able to avail itself of the exclusion from the prohibition in Exchange Act Section 15F(b)(6) set forth in proposed paragraph (c)(2) with respect to an associated person if that associated person is currently subject to an order described in subparagraphs (A) and (B) of Section 3(a)(39) of the Exchange Act, with the limitation that an order by a foreign financial regulatory authority described in subparagraphs (B)(i) and (B)(iii) of Section 3(a)(39) shall only apply to orders by a foreign financial VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 regulatory authority in the jurisdiction where the associated person is employed or located. For example, this would include current orders, which are still in effect, from the Commission, the CFTC, an SRO (e.g., FINRA), a registered futures association (e.g., the NFA), or a foreign financial regulatory authority in the jurisdiction where the associated person is employed or located (e.g., the Financial Conduct Authority), that suspends or bars such person from being associated with any entity regulated by such authorities or otherwise places limitations on the activities or functions of the associated person.266 As another example, the exclusion from the prohibition in Exchange Act Section 15F(b)(6) would also not be available in cases where the CFTC, an SRO, a registered futures association, or a foreign financial regulatory authority where the associated person is employed or located has, as applicable, issued an order that that denies, revokes, cancels, suspends the membership, association, registration or listing as a principal with respect to the associated person.267 In these circumstances, for example, the Commission, the CFTC, an SRO, a registered futures association or a foreign financial regulatory authority will have affirmatively made a determination to not allow an associated person to participate in the U.S. securities markets generally (e.g., as an associated person of a broker-dealer or investment adviser), some other sector of the U.S. financial market (e.g., the U.S. swap market), or some sector of the foreign financial markets. The Commission preliminarily believes that an SBS Entity should not be able to avail itself of the exclusion in proposed paragraph (c)(2) with respect to such associated persons given this prior determination by the relevant regulatory authorities. 266 By way of example, Exchange Act Section 15F(l)(3) provides the Commission with authority to institute proceedings under to censure, place limitations on the activities or functions of such person, or suspend for a period not exceeding 12 months, or bar such person from being associated with an SBS Entity. See 15 U.S.C. 78o–10(l)(3). 267 For example, under Exchange Act Section 15A(g)(2), 15 U.S.C. 78o–3(g)(2), where it is necessary or appropriate in the public interest or for the protection of investors, the Commission may, by order, direct the SRO to deny membership to any registered broker or dealer, and bar from becoming associated with a member any person, who is subject to a statutory disqualification. Section 17(h) of the CEA provides for the CFTC to review certain NFA decisions, including the NFA’s disciplinary actions and member responsibility actions, as do the CFTC’s Part 171 Rules, 17 CFR 171.1–171.50. PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 24241 E. Solicitation of Comments Regarding Proposed Amendment to Commission Rule of Practice 194 The Commission is requesting comment regarding all aspects of proposed paragraph (c)(2) of Rule of Practice 194, including any of the potential benefits, risks and costs outlined above or in the Economic Analysis below, as well as any concerns, including investor protection concerns. The Commission also seeks comment on the specific questions below. The Commission particularly requests comment from entities that intend to register as SBS Entities and that anticipate making an application under proposed Rule of Practice 194, as well as counterparties to such SBS Entities. This information will help inform the Commission’s consideration of proposed paragraph (c)(2) of Rule of Practice 194. 1. Are there other potential benefits to the exclusion provided in proposed Rule of Practice 194(c)(2) that are not outlined in the proposal? Are there other potential risks or costs to this proposed exclusion that are not outlined in the proposal? Does the exclusion provided in proposed Rule of Practice 194(c)(2) appropriately consider the potential benefits, risks and costs? In each instance, please explain why or why not. 2. Proposed Rule of Practice 194(c)(2) would apply to all SBS Entities, whether U.S. persons or nonresident SBS Entities. Do commenters agree with this approach? Why or why not? 3. Proposed Rule of Practice 194(c)(2) would apply to an associated person who is a natural person who (i) is not a U.S. person and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person. Do commenters agree with this approach? Why or why not? 4. Under Proposed Rule of Practice 194(c)(2), an SBS Entity would not be able to avail itself of the exclusion if the following limitation applies: if the associated person of that SBS Entity is currently subject to an order described in subparagraphs (A) and (B) of Section 3(a)(39) of the Exchange Act, with the limitation that an order by a foreign financial regulatory authority described in subparagraphs (B)(i) or (B)(iii) of Section 3(a)(39) shall only apply to orders by a foreign financial regulatory authority in the jurisdiction where the associated person is employed or located. Do commenters agree with these limitations? Why or why not? Should the Commission require any additional conditions or limitations to the proposal? If so, please explain what additional conditions or limitations should apply. 5. Are there any other categories of associated persons of an SBS Entity for which the Commission should provide an exclusion from the statutory prohibition in E:\FR\FM\24MYP2.SGM 24MYP2 24242 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules Exchange Act Section 15F(b)(6)? If so, please specify the category and the reasons for requesting the Commission to exclude that category of associated person from the statutory prohibition. 6. Would the exclusion from the statutory disqualification prohibition for certain foreign associated persons under the proposed approach differ materially from relief provided with respect to the corresponding prohibition under the CEA or rules and regulations thereunder? If so, please describe any differences, including any compliance or other challenges posed by such differences. 7. As described above, in the Registration Adopting Release the Commission included an interpretation of the scope of the phrase ‘‘involved in effecting security-based swaps,’’ as that phrase is used in Exchange Act Section 15F(b)(6).268 Based on this interpretation, are there additional categories of non-U.S. associated persons of an SBS Entity that should be excluded from the statutory disqualification prohibition in Section 15F(b)(6)? If so, please describe the functions carried out by such non-U.S. associated persons of an SBS Entity and why you believe those functions do not present the types of concerns addressed by the prohibition on associating with a statutorily disqualified person. VI. Proposed Modifications to Proposed Rule 18a–5 A. Proposed Rule khammond on DSKBBV9HB2PROD with PROPOSALS2 The Commission proposed recordkeeping, reporting, and notification requirements applicable to SBS Entities, securities count requirements applicable to certain SBS Entities, and additional recordkeeping requirements applicable to brokerdealers to account for their securitybased swap and swap activities.269 The proposed requirements were modeled on existing broker-dealer requirements.270 The Commission received a number of comments in response to these proposals.271 Separately, the Commission proposed rules governing the cross-border 268 See Registration Adopting Release, 80 FR at 48974, 48976. Specifically, the Commission stated that the term ‘‘involved in effecting security-based swaps’’ generally means engaged in functions necessary to facilitate the SBS Entity’s securitybased swap business, including, but not limited to the following activities: (1) Drafting and negotiating master agreements and confirmations; (2) recommending security-based swap transactions to counterparties; (3) being involved in executing security-based swap transactions on a trading desk; (4) pricing security-based swap positions; (5) managing collateral for the SBS Entity; and (6) directly supervising persons engaged in the abovedescribed activities. See id. 269 See Recordkeeping and Reporting Proposing Release. 270 See id. at 25196–97 (proving the rationale for modeling the proposed requirements on the relevant broker-dealer requirements). 271 The comment letters are available at https:// www.sec.gov/comments/s7-05-14/s70514.shtml. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 treatment of recordkeeping and reporting requirements with respect to SBS Entities.272 The Commission received comments to the cross-border proposals as well.273 In the Recordkeeping and Reporting Proposing Release, the Commission proposed new Exchange Act Rule 18a– 5 (patterned after Exchange Act Rule 17a–3—the recordkeeping rule for registered broker-dealers), to establish recordkeeping standards for stand-alone and bank SBS Entities.274 As part of that rulemaking, the Commission proposed to require that a stand-alone or bank SBS Entity make and keep current a questionnaire or application for employment for each associated person who is a natural person and, in the case of bank SBS Entities, whose activities relate to the bank SBS Entity’s business as an SBS Entity. The proposal required that the questionnaire or application for employment include an associated person’s identifying information, business affiliations for the past ten years, relevant disciplinary history, relevant criminal record, and place of business, among other things.275 The Commission also proposed a definition of the term associated person that would include persons associated with an SBS Entity as defined under Section 3(a)(70) of the Exchange Act.276 One commenter requested that the Commission modify the proposed rule for foreign SBS Entities so that the questionnaire requirement would not apply to associated persons who effect or are involved in effecting securitybased swap transactions with non-U.S. persons or foreign branches.277 In a subsequent letter, the commenter also requested that the proposal be modified to exclude from the questionnaire requirement an associated person employed or located in a non-U.S. branch, office, or affiliate of the firm in circumstances where: (1) Applicable non-U.S. law prohibits the firm from conducting background checks on the associated person and consent does not cure the prohibition or may not be a condition of employment; (2) the associated person is not subject to a statutory disqualification that the firm actually knows about; (3) the associated person does not effect and is not involved in effecting security-based swaps with U.S. counterparties on behalf of the firm; and (4) the associated 272 See Cross-Border Proposing Release. comment letters are available at https:// www.sec.gov/comments/s7-02-13/s70213.shtml. 274 See Recordkeeping and Reporting Proposing Release, 79 FR at 25205. 275 Paragraph (b)(8) of proposed Rule 18a–5. 276 Paragraph (c) of proposed Rule 18a–5. 277 See SIFMA 9/5/2014 Letter. 273 The PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 person complies with applicable registration and licensing requirements in the jurisdiction(s) where he or she effects or is involved in effecting security-based swaps on behalf of the firm.278 This commenter also suggested that the proposal be modified to permit an SBS Entity to use alternative measures to confirm that a non-resident associated person is not subject to a statutory disqualification in situations where (1) using a standard U.S. questionnaire or application and background check would conflict with local law or the associated person does not interact with U.S. counterparties, and (2) the associated person complies with applicable registration or licensing requirements in the jurisdictions where the associated person is located.279 The Commission preliminarily believes that it is appropriate to provide flexibility with respect to the questionnaire requirement as applied to associated persons of both stand-alone and bank SBS Entities. Thus, the Commission is proposing to add two sets of exemptions under new paragraphs (a)(10) and (b)(8) to proposed Rule 18a–5. • The first exemption would provide that an SBS Entity need not make and keep current a questionnaire or application for employment with respect to any associated person if the SBS Entity is excluded from the prohibition in Exchange Act 15F(b)(6). This could include, for example, a situation in which the SBS Entity relies on the exclusion pursuant to proposed Rule of Practice 194(c)(2) as discussed above with respect to a non-U.S. associated person who does not effect and is not involved in effecting securitybased swap transactions with or for a counterparty that is a U.S. person, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person. • The second exemption would provide that a questionnaire or application for employment executed by an associated person that is not a U.S. person need not include certain information if the receipt of that information, or the creation or maintenance of records reflecting that information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located. In accordance with Rule 15Fb6–2, this exemption would be available with respect to nonU.S. associated persons that effect or are involved in effecting security-based transactions on behalf of the SBS Entity 278 See 279 See E:\FR\FM\24MYP2.SGM IIB/SIFMA 8/26/2016 Letter. IIB/SIFMA 6/21/2018 Letter. 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 with counterparties that are U.S. persons, as well as counterparties that are not. 1. Exemption Based on the Exclusion From the Prohibition Under Section 15F(b)(6) The Commission is proposing to add new paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) to proposed Rule 18a–5. As discussed above, the questionnaire requirement is intended to serve as a basis for a background check of the associated person to verify that the person is not subject to statutory disqualification under Section 15(b)(6), and so to support the certification required under Rule 15Fb6–2(b). These new paragraphs would provide that a stand-alone or bank SBS Entity is not required to make and keep current a questionnaire or application for employment with respect to an associated person if the stand-alone or bank SBS Entity is excluded from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to that associated person. The proposed modifications would complement the Commission’s proposal, discussed above in Section V.C., to amend Rule of Practice 194 to provide an exclusion from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to an associated person who is not a U.S. person and does not effect and is not involved in effecting securitybased swap transactions with or for counterparties that are U.S. persons, other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person, subject to certain conditions. Given that the proposed amendment to Rule of Practice 194 would allow an SBS Entity to exclude such associated persons when making the certification required by Rule 15Fb6–2(a), the Commission preliminarily believes that it is unnecessary to require that the SBS Entity make and keep current the questionnaire or application for employment contemplated by proposed paragraphs 18a–5(a)(10)(i) and (b)(8)(i) with respect to those associated persons. Thus, under proposed Rule 18a–5 paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A), an SBS Entity generally would not be required to obtain the questionnaire or application for employment, otherwise required by proposed Rule 18a–5, with respect to any associated person who is not a U.S. person and who does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons (other than a security-based swap transaction conducted through a foreign VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 branch of a counterparty that is a U.S. person). More broadly, proposed new paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) would provide that an SBS Entity need not make and keep current a questionnaire or application for employment with respect to any associated person if the SBS Entity is excluded from the prohibition in Exchange Act 15F(b)(6) with respect to that associated person. 2. Exemption Based on Local Law The Commission also is proposing to add new paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a–5 to address situations where the law of a non-U.S. jurisdiction in which an associated person is employed or located may prohibit a stand-alone or bank SBS Entity from receiving, creating or maintaining a record of any of the information mandated by the questionnaire requirement. Specifically, the provisions would apply to an associated person who is not a U.S. person (as defined in Exchange Act Rule 3a71–3(a)(4)(i)(A)),280 and would be available, in accordance with Rule 15Fb6–2, to non-U.S. associated persons who effect or are involved in effecting security-based swaps transactions on behalf of an SBS Entity. Paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a–5 would permit the exclusion of certain information mandated by the questionnaire requirement with respect to those associated persons if the receipt of that information, or the creation or maintenance of records reflecting such information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located. Rather than fully excluding these associated persons from the questionnaire requirement, the provisions would provide that the stand-alone or bank SBS Entity need not record information mandated by the questionnaire requirement with respect to such associated persons if the receipt of that information, or the creation or maintenance of records reflecting such information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located.281 280 Exchange Act Rule 3a71–3(a)(4)(i)(A) defines the term U.S. person to mean, with respect to natural persons, ‘‘a natural person resident in the United States.’’ 281 To the extent an nonresident SBS Entity is able to rely on either paragraph (a)(10)(iii)(A) or (b)(8)(iii)(A) with respect to a particular associated person, the firm would not need to also rely on the relief provided under (a)(10)(iii)(B) or (b)(8)(iii)(B) because the firm would be exempt from the questionnaire requirement with respect to that associated person. PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 24243 This proposed change is designed to address commenters’ concerns, and would provide SBS Entities with flexibility to not record information that might result in a violation of the law in the jurisdiction in which the associated person is employed or located, while continuing to require that they record information not restricted by the law in that jurisdiction. SBS Entities should still make and keep current information included in the questionnaire or application requirement that would not result in a violation of local law. In addition, if an SBS Entity would be able to obtain the information required by the questionnaire or application requirement if it obtained the consent of the associated person, the SBS Entity generally should try to obtain such consent before relying on new paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B).282 As noted above, the questionnaire serves as a basis for a background check of the associated person to verify that the person is not subject to a statutory disqualification, which in turn supports the substantive prohibition in Section 15F(b)(6) of the Exchange Act and the related certification and background check requirements in Rule 15Fb6–2.283 The Commission recognizes that there may be various means by which an SBS Entity could meet its obligations under Section 15F(b)(6) of the Exchange Act and Rule 15Fb6–2. In the release adopting Rule 15Fb6–2, the Commission did not prescribe a particular means by which an SBS Entity must conduct the required background check.284 Rather, the Commission indicated that whatever steps are taken, the SBS Entity must have sufficient comfort to be able to comply with Section 15F(b)(6) of the Exchange Act, and make the certification required by Rule 15Fb6– 2.285 While an SBS Entity may be prohibited by local laws from obtaining certain information from an associated person, the SBS Entity may still be able to review public records (in foreign 282 However, we recognize that there may be other issues raised with respect to consents. See part IV.A.2, supra. 283 See 17 CFR 240.15Fb6–2(b); see also ‘‘Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants,’’ 76 FR 65784 (Oct. 24, 2011), and the discussion regarding proposed Rule 15Fb6–1(b) at 65796. Proposed paragraph 15Fb6–1(b) was not adopted because it was duplicative of the requirement in the Recordkeeping and Reporting Proposing release. Specifically, the Commission stated in the Registration Adopting Release, ‘‘We do not believe that it would be efficient or necessary to repeat the same requirement for obtaining such questionnaires or applications in two separate Commission rules.’’ See Registration Adopting Release, 80 FR at 48978. 284 See id. at 48977. 285 17 CFR 240.15Fb6–2. E:\FR\FM\24MYP2.SGM 24MYP2 24244 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules jurisdictions or in the U.S.) or take other steps to help provide it with sufficient comfort to comply with Section 15F(b)(6). The Commission emphasizes that every SBS Entity must still comply with Section 15F(b)(6) of the Exchange Act and Rule 15Fb6–2 with respect to every associated person that is not subject to an exclusion from the statutory disqualification prohibition in Section 15F(b)(6) of the Exchange Act. B. Solicitation of Comments Regarding Proposed Modifications to Proposed Rule 18a–5 khammond on DSKBBV9HB2PROD with PROPOSALS2 The Commission requests comment on all aspects of these proposed modifications to proposed Rule 18a–5 and the guidance described above. 1. Will the proposed modifications adequately address the concerns raised by the commenter? If not, why not, and what further modifications should the Commission make? 2. Are there processes that foreign regulators use in lieu of employing an equivalent to the questionnaire requirement? If so, please cite examples. 3. What information do entities that may seek to register as SBS Entities currently collect regarding their employees as part of their normal operations for various purposes (e.g., to pay employees, to pay taxes, to provide employees with other benefits, and to know what functions each employee performs and who supervises them)? 4. Section 15F(b)(6) generally makes it illegal to permit a person who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on behalf of an SBS Entity if the SBS Entity ‘‘knew, or in the exercise of reasonable care should have known’’ of the statutory disqualification. Should the Commission provide guidance on the minimum level of due diligence in which an SBS Entity must engage to satisfy that ‘‘reasonable care’’ standard in the event that the receipt of information, or the creation or maintenance of records reflecting information that would otherwise be required under Rule 18a–5, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located? If so, what guidance should the Commission provide, and why? 5. Would the laws in jurisdictions other than the jurisdiction where an associated person is employed or located limit an SBS Entity’s ability to make and retain information contained in the questionnaire or application for employment? If so, should proposed paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) be modified to instead focus on VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 the laws of other jurisdictions? For instance, should these paragraphs instead focus on the law of the jurisdiction in which an SBS Entity is incorporated, or where the SBS Entity maintains its books and records? Why or why not? Or, should these proposed paragraphs be expanded to include other jurisdictions? Why or why not? Alternatively, should the rule be more narrowly focused on either where the associated person is ‘‘employed’’ or where the associated person is ‘‘located?’’ If so, why should one be used and the other excluded? 6. What role would consents play in terms of nonresident SBS Entities’ ability to meet the questionnaire requirement? 7. Will the proposed addition of new paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) adequately address the concerns raised by the commenter by providing, as proposed, that a stand-alone or bank SBS Entity is not required to make and keep current a questionnaire or application for employment executed by an associated person if they are excluded from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to that associated person. If not, why not, and what further changes should the Commission make? VII. Economic Analysis The Commission is mindful of the economic effects, including the costs and benefits, of the proposed amendments and guidance. Section 3(f) of the Exchange Act provides that whenever the Commission is engaged in rulemaking pursuant to the Exchange Act and is required to consider or determine whether an action is necessary or appropriate in the public interest, the Commission shall also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.286 In addition, Section 23(a)(2) of the Exchange Act requires the Commission, when making rules under the Exchange Act, to consider the impact such rules would have on competition.287 Exchange Act Section 23(a)(2) also provides that the Commission shall not adopt any rule which would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The analysis below addresses the likely economic effects of the proposed amendments and interpretive guidance, including the anticipated and estimated 286 See 287 See PO 00000 15 U.S.C. 78c(f). 15 U.S.C. 78w(a)(2). Frm 00040 Fmt 4701 Sfmt 4702 benefits and costs of the amendments and interpretive guidance and their likely effects on efficiency, competition, and capital formation. The Commission also discusses the potential economic effects of certain alternatives to the approaches taken in this proposal. Many of the benefits and costs discussed below are difficult to quantify. For example, the Commission cannot quantify the costs that potentially could result from competitive disparities associated with either proposed Alternative 1 or proposed Alternative 2 to the exception to Rule 3a71–3 because these costs will depend, in part, on foreign regulatory requirements applicable to non-U.S. entities. This is because the extent to which a non-U.S. entity would need to develop or modify systems to allow it and its majorityowned affiliate to meet the conditions of the proposed exception likely depends on the extent to which the non-U.S. entity’s local regulatory obligations differ from analogous conditions of the proposed exception. These potential costs could also depend on the business decisions of non-U.S. persons that may avail themselves of the proposed exception. Furthermore, the likelihood of a non-U.S. entity availing itself of the proposed exception under either alternative depends on whether the nonU.S. entity is regulated in a listed jurisdiction, a determination that, in turn, depends on the foreign regulatory regime. Also, in connection with the proposed amendments to Commission Rule of Practice 194, the Commission has no data or information allowing us to quantify the number of disqualified non-U.S. employees transacting with foreign counterparties or foreign branches of U.S. counterparties on behalf of U.S. and non-U.S. SBS Entities; the direct costs of relocating disqualified U.S. personnel outside of the United States for U.S. and non-U.S. SBS Entities; or reputational and compliance costs of U.S. and non-U.S. SBS Entities from continuing to transact through disqualified non-U.S. associated persons with foreign counterparties and foreign branches of U.S. counterparties. Therefore, while the Commission has attempted to quantify economic effects where possible, much of the discussion of economic effects is qualitative in nature. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules A. Baseline To assess the economic effects of the proposed amendments, the Commission is using as the baseline the securitybased swap market as it exists at the time of this release, including applicable rules the Commission has already adopted, but excluding rules the Commission has proposed but not yet finalized. The analysis includes the statutory provisions that currently govern the security-based swap market pursuant to the Dodd-Frank Act and rules adopted in the Intermediary Definitions Adopting Release, the CrossBorder Adopting Release, the SDR Rules and Core Principles Adopting Release,288 and the Rule of Practice 194 Adopting Release.289 Additionally, the baseline includes rules that have been adopted but for which compliance is not yet required, including the ANE Adopting Release, Registration Adopting Release,290 Regulation SBSR Amendments Adopting Release,291 and the Business Conduct Adopting Release,292 as these final rules—even if compliance is not yet required—are part of the existing regulatory landscape that market participants expect to govern their security-based swap activity. The following sections discuss available data from the security-based swap market, security-based swap market participants and dealing structures, market-facing and non-market-facing activities of dealing entities, security-based swap market activity, global regulatory efforts, other markets and existing regulatory frameworks, current estimates of entities likely to incur assessment costs under rules adopted in the ANE Adopting Security-Based Swap Data Repository Registration, Duties, and Core Principles, Exchange Act Release No. 74246 (Feb. 11, 2015), 80 FR 14437 (Mar. 19, 2015) (‘‘SDR Rules and Core Principles Adopting Release’’). 289 See Rule of Practice 194 Adopting Release, 84 FR at 4906. 290 See Registration Adopting Release, 80 FR at 48997–49003. 291 See Regulation SBSR–Reporting and Dissemination of Security-Based Swap Information, Exchange Act Release No. 78321 (Jul.14, 2016), 81 FR 53546 (Aug. 12, 2016) (‘‘Regulation SBSR Amendments Adopting Release’’). 292 See Business Conduct Adopting Release, 81 FR at 30105. khammond on DSKBBV9HB2PROD with PROPOSALS2 288 See VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Release, and an estimate of non-U.S. persons that could be affected by the proposed amendments and guidance. 1. Available Data From the SecurityBased Swap Market The Commission’s understanding of the market is informed, in part, by available data on security-based swap transactions, though the Commission acknowledges that limitations in the data limit the extent to which it is possible to quantitatively characterize the market.293 The Commission’s analysis of the current state of the security-based swap market is based on data obtained from the DTCC Derivatives Repository Limited Trade Information Warehouse (‘‘TIW’’), especially data regarding the activity of market participants in the single-name CDS market during the period from 2008 to 2017. The details of this data set, including its limitations, have been discussed in a prior release.294 2. Security-Based Swap Market: Market Participants and Dealing Structures a. Security-Based Swap Market Participants Activity in the security-based swap market is concentrated among a relatively small number of entities that act as dealers in this market. In addition to these entities, thousands of other participants appear as counterparties to security-based swap contracts in the TIW sample, and include, but are not limited to, investment companies, pension funds, private (hedge) funds, sovereign entities, and industrial companies. A discussion of securitybased swap market participants can be found in a prior release.295 b. Security-Based Swap Market Participant Domiciles As depicted in Figure 1 below, domiciles of new accounts participating 293 The Commission also relies on qualitative information regarding market structure and evolving market practices provided by commenters and knowledge and expertise of Commission staff. 294 See Rule of Practice 194 Adopting Release, 84 FR at 4924. 295 See Rule of Practice 194 Adopting Release, 84 FR at 4925. PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 24245 in the security-based swap market have shifted over time. It is unclear whether these shifts represent changes in the types of participants active in this market, changes in reporting, or changes in transaction volumes in particular underliers. For example, the percentage of new entrants that are foreign accounts increased from 24.4% in the first quarter of 2008 to 32.3% in the last quarter of 2017, which may reflect an increase in participation by foreign account holders in the security-based swap market, though the total number of new entrants that are foreign accounts decreased from 112 in the first quarter of 2008 to 48 in the last quarter of 2017.296 Additionally, the percentage of the subset of new entrants that are foreign accounts managed by U.S. persons increased from 4.6% in the first quarter of 2008 to 16.8% in the last quarter of 2017, and the absolute number rose from 21 to 25, which also may reflect more specifically the flexibility with which market participants can restructure their market participation in response to regulatory intervention, competitive pressures, and other stimuli.297 At the same time, apparent changes in the percentage of new accounts with foreign domiciles may also reflect improvements in reporting by market participants to TIW, an increase in the percentage of transactions between U.S. and non-U.S. counterparties, and/or increased transactions in single-name CDS on U.S. reference entities by foreign persons.298 296 These estimates were calculated by Commission staff using TIW data. 297 See Charles Levinson, ‘‘U.S. banks moved billions in trades beyond the CFTC’s reach,’’ Reuters, Aug. 21, 2015, available at https:// www.reuters.com/article/2015/08/21/usa-banksswaps-idUSL3N10S57R20150821. The estimates of 21 and 25 were calculated by Commission staff using TIW data. 298 The available data do not include all securitybased swap transactions but only transactions in single-name CDS that involve either (1) at least one account domiciled in the United States (regardless of the reference entity) or (2) single-name CDS on a U.S. reference entity (regardless of the U.S.-person status of the counterparties). See note 294, supra, for a discussion of the TIW data set. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 c. Market Centers 299 A market participant’s domicile, however, does not necessarily correspond to where it engages in security-based swap activity. In particular, non-U.S. persons engaged in security-based swap dealing activity operate in multiple market centers and carry out such activity with counterparties around the world.300 Many market participants that are engaged in dealing activity prefer to use traders and manage risk for securitybased swaps in the jurisdiction where the underlier is traded. Thus, although a significant amount of the dealing activity in security-based swaps on U.S. 299 Following publication of the Warehouse Trust Guidance on CDS data access, DTCC–TIW surveyed market participants, asking for the physical address associated with each of their accounts (i.e., where the account is organized as a legal entity). This is designated the registered office location by the DTCC–TIW. When an account does not report a registered office location, the Commission has assumed that the settlement country reported by the investment adviser or parent entity to the fund or account is the place of domicile. This treatment assumes that the registered office location reflects the place of domicile for the fund or account. 300 See ANE Adopting Release, 81 FR at 8604 n.56. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 reference entities involves non-U.S. dealers, the Commission understands that these dealers tend to carry out much of the security-based swap trading and related risk-management activities in these security-based swaps within the United States.301 Some dealers have explained that being able to centralize their trading, sales, risk management, and other activities related to U.S. reference entities in U.S. operations (even when the resulting transaction is booked in a foreign entity) improves the efficiency of their dealing business. Consistent with these operational concerns and the global nature of the security-based swap market, the available data appear to confirm that participants in this market are in fact active in market centers around the globe. Although, as noted above, the available data do not permit us to identify the location of personnel in a transaction, TIW transaction records, supplemented with legal entity location data, indicate that firms that are likely to be security-based swap dealers operate out of branch locations in key 301 See PO 00000 id. note 58. Frm 00042 Fmt 4701 Sfmt 4702 market centers around the world, including New York, London, Paris, Zurich, Tokyo, Hong Kong, Chicago, Sydney, Toronto, Frankfurt, Singapore, and the Cayman Islands.302 Given these market characteristics and practices, participants in the security-based swap market may bear the financial risk of a security-based swap transaction in a location different from the location where the transaction is arranged, negotiated, or executed, or where economic decisions are made by managers on behalf of beneficial owners. Market activity may also occur in a jurisdiction other than where the market participant or its counterparty books the transaction. Similarly, a participant in the security-based swap market may be exposed to counterparty risk from a counterparty located in a jurisdiction that is different from the market center or centers in which it participates. 302 TIW transaction records contain a proxy for the domicile of an entity, which may differ from branch locations, which are separately identified in the transaction records. The legal entity location data are from Avox. E:\FR\FM\24MYP2.SGM 24MYP2 EP24MY19.000</GPH> 24246 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 d. Common Business Structures A non-U.S. person that engages in a global security-based swap dealing business in multiple market centers may choose to structure its dealing business in a number of different ways. This structure, including where it books the transactions that constitute that business and how it carries out marketfacing activities that generate those transactions, reflects a range of business and regulatory considerations, which each non-U.S. person may weigh differently. A non-U.S. person may choose to book all of its security-based swap transactions, regardless of where the transaction originated, in a single, central booking entity. That entity generally retains the risk associated with that transaction, but it also may lay off that risk to another affiliate via a back-to-back transaction or an assignment of the security-based swap.303 Alternatively, a non-U.S. person may book security-based swaps arising from its dealing business in separate affiliates, which may be located in the jurisdiction where it originates the risk associated with the securitybased swap, or, alternatively, the jurisdiction where it manages that risk. Some non-U.S. persons may book transactions originating in a particular region to an affiliate established in a jurisdiction located in that region.304 As discussed earlier,305 a non-U.S. person may choose to book its security-based swap transactions in one jurisdiction in part to avoid triggering regulatory requirements associated with another jurisdiction. Regardless of where a non-U.S. person determines to book its security-based swaps arising out of its dealing activity, it is likely to operate offices that perform sales or trading functions in one or more market centers in other jurisdictions. Maintaining sales and trading desks in global market centers permits the non-U.S. person to deal with counterparties in that jurisdiction or in a specific geographic region, or to ensure that it is able to provide liquidity to counterparties in other 303 See Exchange Act Release No. 74834 (Apr. 29, 2015), 80 FR 27444, 27463 (May 13, 2015) (‘‘U.S. Activity Proposing Release’’); Cross-Border Proposing Release, 78 FR 30977–78. 304 There is some indication that this booking structure is becoming increasingly common in the market. See, e.g., Catherine Contiguglia, ‘‘Regional swaps booking replacing global hubs,’’ Risk.net, Sep. 4, 2015, available at https://www.risk.net/riskmagazine/feature/2423975/regional-swaps-bookingreplacing-global-hubs. Such a development may be reflected in the increasing percentage of new entrants that have a foreign domicile, as described above. 305 See part III.B.4, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 jurisdictions,306 for example, when a counterparty’s home financial markets are closed. A non-U.S. person engaged in a security-based swap dealing business also may choose to manage its trading book in particular reference entities or securities primarily from a trading desk that can utilize local expertise in such products or that can gain access to better liquidity, which may permit it to more efficiently price such products or to otherwise compete more effectively in the security-based swap market. Some non-U.S. persons prefer to centralize risk management, pricing, and hedging for specific products with the personnel responsible for carrying out the trading of such products to mitigate operational risk associated with transactions in those products. The non-U.S. person affiliate that books these transactions may carry out related market-facing activities, whether in its home jurisdiction or in a foreign jurisdiction, using either its own personnel or the personnel of an affiliated or unaffiliated agent. For example, the non-U.S. person may determine that another of its affiliates employs personnel who possess expertise in relevant products or who have established sales relationships with key counterparties in a foreign jurisdiction, making it more efficient to use the personnel of the affiliate to engage in security-based swap marketfacing activity on its behalf in that jurisdiction. In these cases, the affiliate that books these transactions and its affiliated agent may operate as an integrated dealing business, each performing distinct core functions in carrying out that business. Alternatively, the non-U.S. person affiliate that books these transactions may, in some circumstances, determine to engage the services of an unaffiliated agent through which it can engage in market-facing activity. For example, a non-U.S. person may determine that using an interdealer broker may provide an efficient means of participating in the interdealer market in its own, or in another, jurisdiction, particularly if it is seeking to do so anonymously or to take a position in products that trade relatively infrequently.307 A non-U.S. 306 These offices may be branches or offices of the booking entity itself, or branches or offices of an affiliated agent, such as, in the United States, a registered broker-dealer. 307 The Commission understands that interdealer brokers may provide voice or electronic trading services that, among other things, permit dealers to take positions or hedge risks in a manner that preserves their anonymity until the trade is executed. These interdealer brokers also may play a particularly important role in facilitating transactions in less-liquid security-based swaps. PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 24247 person may also use unaffiliated agents that operate at its direction. Such an arrangement may be particularly valuable in enabling a non-U.S. person to service clients or access liquidity in jurisdictions in which it has no securitybased swap operations of its own. The Commission understands that non-U.S. person affiliates (whether affiliated with U.S.-based non-U.S. persons or not) that are established in foreign jurisdictions may use any of these structures to engage in dealing activity in the United States, and that they may seek to engage in dealing activity in the United States to transact with both U.S.-person and non-U.S.person counterparties. In transactions with non-U.S.-person counterparties, these foreign affiliates may affirmatively seek to engage in dealing activity in the United States because the sales personnel of the non-U.S.-person dealer (or of its agent) in the United States have existing relationships with counterparties in other locations (such as Canada or Latin America) or because the trading personnel of the non-U.S.person dealer (or of its agent) in the United States have the expertise to manage the trading books for securitybased swaps on U.S. reference securities or entities. The Commission understands that some of these foreign affiliates engage in dealing activity in the United States through their personnel (or personnel of their affiliates) in part to ensure that they are able to provide their own counterparties, or those of non-U.S. person affiliates in other jurisdictions, with access to liquidity (often in nonU.S. reference entities) during U.S. business hours, permitting them to meet client demand even when the home markets are closed. In some cases, such as when seeking to transact with other dealers through an interdealer broker, these foreign affiliates may act, in a dealing capacity, in the United States through an unaffiliated, third-party agent. 3. Market-Facing and Non-MarketFacing Activities As discussed above, the activities of a security-based swap dealer involve both market-facing activities and non-marketfacing activities.308 Market-facing activities would include arranging, negotiating, or executing a securitybased swap transaction. The terms ‘‘arrange’’ and ‘‘negotiate’’ indicate market-facing activity of sales or trading personnel in connection with a particular transaction, including interactions with counterparties or their 308 See E:\FR\FM\24MYP2.SGM part I.A.2, supra. 24MYP2 24248 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules agents. The term ‘‘execute’’ refers to the market-facing act that, in connection with a particular transaction, causes the person to become irrevocably bound under the security-based swap under applicable law. Non-market-facing activities include processing trades and other back-office activities; designing security-based swaps without communicating with counterparties in connection with specific transactions; preparing underlying documentation, including negotiating master agreements (as opposed to negotiating with the counterparty the specific economic terms of a particular security-based swap transaction); and clerical and ministerial tasks such as entering executed transactions on a non-U.S. person’s books. 4. Security-Based Swap Market Activity khammond on DSKBBV9HB2PROD with PROPOSALS2 As already noted, firms that act as dealers play a central role in the security-based swap market. Based on an analysis of 2017 single-name CDS data in TIW, accounts of those firms that are likely to exceed the security-based swap dealer de minimis thresholds and trigger registration requirements intermediated transactions with a gross notional amount of approximately $2.9 trillion, approximately 55% of which VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 was intermediated by the top five dealer accounts.309 These dealers transact with hundreds or thousands of counterparties. Approximately 21% of accounts of firms expected to register as security-based dealers and observable in TIW have entered into security-based swaps with over 1,000 unique counterparty accounts as of year-end 2017.310 Another 25% of these accounts transacted with 500 to 1,000 unique counterparty accounts; 29% transacted with 100 to 500 unique accounts; and 25% of these accounts intermediated security-based swaps with fewer than 100 unique counterparties in 2017. The median dealer account transacted with 495 unique accounts (with an average of approximately 570 unique accounts). Non-dealer counterparties transacted almost exclusively with these dealers. The median non-dealer counterparty transacted with two dealer accounts (with an average of approximately three dealer accounts) in 2017. Figure 2 below describes the percentage of global, notional transaction volume in North American corporate single-name CDS reported to TIW between January 2008 and December 2017, separated by whether transactions are between two ISDArecognized dealers (interdealer transactions) or whether a transaction has at least one non-dealer counterparty. Figure 2 also shows that the portion of the notional volume of North American corporate single-name CDS represented by interdealer transactions has remained fairly constant through 2015 before falling from approximately 72% in 2015 to approximately 40% in 2017. This fall corresponds to the availability of clearing to non-dealers. Interdealer transactions continue to represent a significant fraction of trading activity, even as notional volume has declined over the past ten years,311 from more than $6 trillion in 2008 to less than $700 billion in 2017.312 309 The Commission staff analysis of TIW transaction records indicates that approximately 99% of single-name CDS price-forming transactions in 2017 involved an ISDA-recognized dealer. 310 Many dealer entities and financial groups transact through numerous accounts. Given that individual accounts may transact with hundreds of counterparties, the Commission may infer that entities and financial groups may transact with at least as many counterparties as the largest of their accounts. 311 The start of this decline predates the enactment of the Dodd-Frank Act and the proposal of rules thereunder, which is important to note for the purpose of understanding the economic baseline for this rulemaking. 312 This estimate is lower than the gross notional amount of $4.6 trillion noted in note 294 above as it includes only the subset of single-name CDS referencing North American corporate documentation. PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 E:\FR\FM\24MYP2.SGM 24MYP2 The high level of interdealer trading activity reflects the central position of a small number of dealers, each of which intermediates trades with many hundreds of counterparties. While the Commission is unable to quantify the current level of trading costs for singlename CDS, these dealers appear to enjoy market power as a result of their small number and the large proportion of order flow that they privately observe. Against this backdrop of declining North American corporate single-name CDS activity, about half of the trading activity in North American corporate single-name CDS reflected in the set of data that the Commission analyzed was between counterparties domiciled in the United States and counterparties domiciled abroad, as shown in Figure 3 below. Using the self-reported registered office location of the TIW accounts as a proxy for domicile, the Commission estimates that only 12% of the global transaction volume by notional volume between 2008 and 2017 was between two U.S.-domiciled counterparties, compared to 49% entered into between one U.S.-domiciled counterparty and a foreign-domiciled counterparty and VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 39% entered into between two foreigndomiciled counterparties.313 If the Commission instead considers the number of cross-border transactions from the perspective of the domicile of the corporate group (e.g., by classifying a foreign bank branch or foreign subsidiary of a U.S. entity as domiciled in the United States), the percentages shift significantly. Under this approach, the fraction of transactions entered into between two U.S.-domiciled counterparties increases to 34%, and to 51% for transactions entered into between a U.S.-domiciled counterparty and a foreign-domiciled counterparty. By contrast, the proportion of activity between two foreign-domiciled counterparties drops from 39% to 15%. This change in respective shares based on different classifications suggests that the activity of foreign subsidiaries of U.S. firms and foreign branches of U.S. 313 For purposes of this discussion, the Commission has assumed that the registered office location reflects the place of domicile for the fund or account, but the Commission notes that this domicile does not necessarily correspond to the location of an entity’s sales or trading desk. ANE Adopting Release, 81 FR at 8607 n.83. PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 24249 banks accounts for a higher percentage of security-based swap activity than U.S. subsidiaries of foreign firms and U.S. branches of foreign banks. It also demonstrates that financial groups based in the United States are involved in an overwhelming majority (approximately 85%) of all reported transactions in North American corporate single-name CDS. Financial groups based in the United States are also involved in a majority of interdealer transactions in North American corporate single-name CDS. Of the 2017 transactions on North American corporate single-name CDS between two ISDA-recognized dealers and their branches or affiliates, 94% of transaction notional volume involved at least one account of an entity with a U.S. parent. The Commission notes, in addition, that a majority of North American corporate single-name CDS transactions occur in the interdealer market or between dealers and foreign non-dealers, with the remaining portion of the market consisting of transactions between dealers and U.S.-person nondealers. Specifically, 60% of North American corporate single-name CDS E:\FR\FM\24MYP2.SGM 24MYP2 EP24MY19.001</GPH> khammond on DSKBBV9HB2PROD with PROPOSALS2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules transactions involved either two ISDArecognized dealers or an ISDArecognized dealer and a foreign non- dealer. Approximately 39% of such transactions involved an ISDA- recognized dealer and a U.S.-person non-dealer. 5. Global Regulatory Efforts In 2009, the G20 leaders—whose membership includes the United States, 18 other countries, and the European Union—addressed global improvements in the OTC derivatives market. They expressed their view on a variety of issues relating to OTC derivatives contracts. In subsequent summits, the G20 leaders have returned to OTC derivatives regulatory reform and encouraged international consultation in developing standards for these markets.314 Many security-based swap dealers likely will be subject to foreign regulation of their security-based swap activities that is similar to regulations that may apply to them pursuant to Title VII of the Dodd-Frank Act, even if the relevant foreign jurisdictions do not classify certain market participants as ‘‘dealers’’ for regulatory purposes. Some of these regulations may duplicate, and in some cases conflict with, certain elements of the Title VII regulatory framework. Foreign legislative and regulatory efforts have generally focused on five areas: (1) Moving OTC derivatives onto organized trading platforms, (2) requiring central clearing of OTC derivatives, (3) requiring post-trade reporting of transaction data for regulatory purposes and public dissemination of anonymized versions of such data, (4) establishing or enhancing capital requirements for noncentrally cleared OTC derivatives transactions, and (5) establishing or enhancing margin and other risk mitigation requirements for noncentrally cleared OTC derivatives transactions. Foreign jurisdictions have been actively implementing regulations in connection with each of these categories of requirements. A number of major foreign jurisdictions have initiated the process of implementing margin and other risk mitigation requirements for non-centrally cleared OTC derivatives transactions.315 Notably, the European Parliament and the European Council have adopted the European Market Infrastructure Regulation (‘‘EMIR’’), which includes provisions aimed at increasing the safety and transparency of the OTC derivatives market. EMIR mandates the European Supervisory Authorities (‘‘ESAs’’) to develop regulatory technical standards specifying margin requirements for non-centrally cleared OTC derivatives contracts. The ESAs have developed, and in October 2016 314 See, e.g., G20 Leaders’ Final Declaration, November 2011, para. 24, available at https:// g20.org/wp-content/uploads/2014/12/Declaration_ eng_Cannes.pdf. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 315 In November 2018, the Financial Stability Board reported that 16 member jurisdictions participating in its thirteenth progress report on OTC derivatives market reforms had in force margin requirements for non-centrally cleared derivatives. A further 4 jurisdictions made some progress in implementation leading to a change in reported implementation status during the reporting period. See Financial Stability Board, ‘‘OTC Derivatives Market Reforms Thirteenth Progress Report on Implementation’’ (Nov. 2018), available at https:// www.fsb.org/wp-content/uploads/P191118-5.pdf. E:\FR\FM\24MYP2.SGM 24MYP2 EP24MY19.002</GPH> khammond on DSKBBV9HB2PROD with PROPOSALS2 24250 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules the European Commission adopted, these regulatory technical standards.316 Several jurisdictions have also taken steps to implement the Basel III recommendations governing capital requirements for financial entities, which include enhanced capital charges for non-centrally cleared OTC derivatives transactions.317 Moreover, as discussed above, subsequent to the publication of the proposing release, the Basel Committee on Banking Supervision (‘‘BCBS’’) and the Board of the International Organization of Securities Commissions (‘‘IOSCO’’) issued the Margin Requirements for Non-centrally Cleared Derivatives (‘‘WGMR Paper’’) that recommends minimum standards for margin requirements for non-centrally cleared derivatives.318 The recommendations in the WGMR Paper included a recommendation that all financial entities and systemically important nonfinancial entities exchange variation and initial margin appropriate for the counterparty risk posed by such transactions, that initial margin should be exchanged without provisions for ‘‘netting’’ and held in a manner that protects both parties in the event of the other’s default, and that the margin regimes of the various regulators should interact so as to be sufficiently consistent and non-duplicative. khammond on DSKBBV9HB2PROD with PROPOSALS2 6. Other Markets and Existing Regulatory Frameworks The numerous financial markets are integrated, often attracting the same 316 See EBA, EIOPA, and ESMA, ‘‘Regulatory Technical Standards (RTS) on risk mitigation techniques for OTC derivatives not cleared by a central counterparty (CCP)’’ (March 2016), available at https://www.eba.europa.eu/documents/10180/ 1398349/RTS+on+Risk+Mitigation+ Techniques+for+OTC+contracts+%28JC-2016+18%29.pdf/fb0b3387-3366-4c56-9e2574b2a4997e1d; see also EC Delegated Regulation, supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories with regard to regulatory technical standards for risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty (Oct. 4, 2016), available at https:// ec.europa.eu/finance/financial-markets/docs/ derivatives/161004-delegated-act_en.pdf. After the non-objection from the European Parliament and Council, Delegated Regulation (EU) 2016/2251 was published in the Official Journal of the European Union and entered into force on January 4, 2017. 317 In November 2018, the Financial Stability Board reported that 23 of the 24 member jurisdictions participating in its thirteenth progress report on OTC derivatives market reforms had in force interim standards for higher capital requirements for non-centrally cleared transactions. See Financial Stability Board, OTC Derivatives Market Reforms Thirteenth Progress Report on Implementation (Nov. 2018), available at https:// www.fsb.org/wp-content/uploads/P191118-5.pdf. 318 See BCBS, IOSCO, ‘‘Margin Requirements for Non-centrally Cleared Derivatives’’ (Mar. 2015), available at https://www.bis.org/bcbs/publ/d317.pdf. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 market participants that trade across corporate bond, swap, and securitybased swap markets, among others. A discussion of other markets and existing regulatory frameworks can be found in a prior release.319 7. Estimates of Persons That May Use the Proposed Exception to Rule 3a71–3 To analyze the economic effects of the proposed exception to Rule 3a71–3, the Commission has analyzed 2017 TIW data to identify persons that may use the proposed exception. The Commission preliminarily believes that these persons fall into several categories, which we discuss below. a. Non-U.S. Persons Seeking To Reduce Assessment Costs One category of persons that may use the proposed exception are those nonU.S. persons that may need to assess the amount of their market-facing activity against the de minimis thresholds solely because of the inclusion of securitybased swap transactions between two non-U.S. persons that are arranged, negotiated, or executed by personnel located in the U.S. for the purposes of the de minimis threshold analysis. These non-U.S. persons may have an incentive to rely on the proposed exception as a means of avoiding assessment and business restructuring if the cost of compliance associated with the proposed exception is less than assessment costs and the costs of business restructuring. In the ANE Adopting Release, the Commission provided an estimate of this category of persons.320 However, in light of the reduction in security-based swap market activity since the publication of the ANE Adopting Release,321 the Commission preliminarily believes that it would be appropriate to update that estimate to more accurately identify the set of persons that potentially may use the proposed exception. Analyses of the 2017 TIW data indicate that approximately five additional non-U.S. persons,322 beyond those non-U.S. persons likely to incur assessment costs in connection with the other crossborder counting rules that the Commission previously had adopted in the Cross-Border Adopting Release,323 are likely to exceed the $2 billion 319 See Rule of Practice 194 Adopting Release, 84 FR at 4927. 320 See ANE Adopting Release, 81 FR at 8627. 321 See part VII.A.4, supra. 322 Adjustments to these statistics from the ANE Adopting Release reflect further analysis of the TIW data. Cf. ANE Adopting Release, 81 FR at 8627 (providing an estimate of 10 additional non-U.S. persons based on 2014 TIW data). 323 See note 13, supra. PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 24251 threshold 324 the Commission has previously employed to estimate the number of persons likely to incur assessment costs under Exchange Act rule 3a71–3(b). These non-U.S. persons may have an incentive to rely on the proposed exception as a means of avoiding assessment if the cost of compliance associated with the proposed exception is less than the assessment costs. b. Non-U.S. Persons Seeking To Avoid Security-Based Swap Dealer Regulation Another category of persons that potentially may use the proposed exception are those non-U.S. persons whose dealing transaction volume would have fallen below the $3 billion de minimis threshold if their transactions with non-U.S. counterparties were not counted toward the de minimis threshold under the current ‘‘arranged, negotiated, or executed’’ counting requirement, but absent the exception, would have dealing transactions in excess of that threshold.325 Such non-U.S. persons may choose to use the proposed exception if they expect the compliance cost associated with the proposed exception to be lower than the compliance cost associated with being subject to the full set of security-based swap dealer regulation and the cost of business restructuring. The Commission’s analysis of 2017 TIW data indicates that there is one non-U.S. person whose transaction volume would have fallen below the $3 billion de minimis threshold if that person’s transactions with non-U.S. counterparties were not counted toward the de minimis threshold under the current ‘‘arranged, negotiated, or executed’’ counting requirement.326 c. U.S. Dealing Entities Considering Changes to Booking Practices A third category of persons that potentially may use the conditional exception are those U.S. dealers that use U.S. personnel to arrange, negotiate, or execute transactions with non-U.S. counterparties. If the proposed exception were available, such dealers 324 See ANE Adopting Release, 81 FR at 8626. $3 billion threshold is being used to help identify potential impacts of the proposal. A phasein threshold of $8 billion currently is in effect. See Exchange Act Rule 3a71–2(a)(1). 326 The analysis begins by considering the singlename CDS transactions of each of the non-U.S. persons against both U.S. person and non-U.S. person counterparties. The Commission then excluded transactions involving these non-U.S. persons and their non-U.S. person counterparties. For this analysis, we assume that all transactions between non-U.S. person dealers and non-U.S. counterparties are arranged, negotiated, or executed using U.S. personnel. 325 The E:\FR\FM\24MYP2.SGM 24MYP2 24252 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules may consider booking future transactions with non-U.S. counterparties to their non-U.S. affiliates, while still using U.S. personnel to arrange, negotiate, or execute such transactions. These U.S. dealers may have an incentive to engage in such booking practices in order to utilize the proposed exception to the extent that they wish to continue using U.S. personnel to arrange, negotiate, or execute transactions with non-U.S. counterparties and the compliance cost associated with the proposed exception is less than the cost of compliance with Title VII requirements (if they choose not to book transactions to avail themselves of the proposed exception) and the cost of business restructuring (if they choose to both book transactions to their non-U.S. affiliates and also refrain from using U.S. personnel to arrange, negotiate or execute such transactions).327 The Commission’s analysis of 2017 TIW data indicates that there are six U.S. dealers who transact with non-U.S. counterparties, who are likely to register as security-based swap dealers,328 and have non-U.S. affiliates that also transact in the CDS market. To the extent that these U.S. dealers anticipate booking future transactions with non-U.S. counterparties that are arranged, negotiated, or executed by U.S. personnel to their non-U.S. affiliates, the Commission preliminarily believes that these U.S. dealers may potentially make use of the proposed exception. d. Additional Considerations and Summary Under Alternative 1,329 the U.S. arranging, negotiating, and executing activity could be conducted by a registered security-based swap dealer. Under Alternative 2, the U.S. arranging, negotiating, and executing could be conducted by a registered broker.330 The economic analysis of these alternatives depends, in part, on whether non-U.S. persons that might make use of the proposed exception have U.S. affiliates that are likely to register as securitybased swap dealers (under Alternative 1) or that are registered broker-dealers (under Alternative 2). Of the six nonU.S. persons discussed above,331 four have majority-owned affiliates that are registered broker-dealers. Of these nonU.S. persons, one has a majority-owned affiliate that is likely to register as a security-based swap dealer. Of the six U.S. persons discussed above, all have majority-owned affiliates that are registered broker-dealers, and all have majority-owned affiliates that are likely to register as security-based swap dealers. Of these 12 persons, eight are banks, and three are affiliated with banks. These estimates are summarized in Table 1 below. The Commission’s analysis of 2017 TIW data indicates that these 12 persons transacted with 807 non-U.S. counterparties, of which 558 participate in the swap markets and 249 do not. TABLE 1—AFFILIATES OF PERSONS THAT MAY USE THE PROPOSED EXCEPTION Persons identified in TIW data that may use the proposed exception Non-U.S. Estimate ........................................................................................................................................................................... Breakdown: Has majority-owned registered broker-dealer affiliate ............................................................................................. Has majority-owned registered security-based swap dealer affiliate ....................................................................... Is a bank ................................................................................................................................................................... Is a bank affiliate ...................................................................................................................................................... khammond on DSKBBV9HB2PROD with PROPOSALS2 In summary, the Commission’s analysis of 2017 TIW data indicates that 12 persons 332 may make use of the proposed exception. In light of the uncertainty associated with this estimate 333 and to account for potential growth of the security-based swap market, and consistent with the approach in the ANE Adopting Release, the Commission believes that it is reasonable to increase this estimate by a factor of two.334 As a result, the Commission preliminarily estimates that up to 24 persons potentially may make use of the proposed exception. 327 The Commission recognizes that this potential use of the proposed exception by U.S. dealing entities is distinct from the rationale underlying the proposed exception, which is to help avoid market fragmentation and operational risks resulting from the relocation of U.S. personnel by non-U.S. dealers. See part I.A.4, supra. Nonetheless, such changes in booking practices by U.S. dealing entities might be a consequence of the proposal. 328 To the extent that U.S. persons with transaction volumes that are insufficient to trigger dealer registration potentially might also make use of the proposed exception, this estimate would be a lower bound estimate of the number of U.S. persons that potentially may make use of the proposed exception. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 The Commission also doubles the number of non-U.S. counterparties discussed above and preliminarily estimates that persons that may make use of the proposed exception may transact with up to 1,614 non-U.S. counterparties, of which 1,116 participate in the swap markets and 498 do not.335 8. Estimates of Persons That Potentially May Be Affected by the Proposed Market Color Guidance U.S. 6 6 4 1 4 1 6 6 4 2 has been incorporated within the de minimis counting standard, the crossborder application of security-based swap dealer business conduct provisions, and the cross-border application of Regulation SBSR’s regulatory reporting and public dissemination provisions. The Commission preliminarily believes that the persons that may rely on this proposed guidance fall into a number of categories, which we discuss below. As discussed in part II supra, the ‘‘arranged, negotiated, or executed’’ test 329 See part III.B, supra. part III.C, supra. 331 Calculated as the 5 non-U.S. persons seeking to reduce assessment costs (part VII.A.7.a) + 1 nonU.S. person seeking to avoid security-based swap dealer regulation (part VII.A.7.b) = 6 non-U.S. persons. 332 Calculated as 5 non-U.S. persons seeking to reduce assessment costs (part VII.A.7.a) + 1 nonU.S. person seeking to avoid security-based swap dealer regulation (part VII.A.7.b) + 6 U.S. persons considering changes to booking practices (part VII.A.7.c) = 12 persons. 333 The estimate may be overinclusive, as it is unlikely that all transactions between two non-U.S. 330 See PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 persons are arranged, negotiated, or executed by personnel located in a U.S. branch or office; it may also be underinclusive, as our TIW data do not include single-name CDS transactions between two non-U.S. entities written on non-U.S. underliers, some of which may be arranged, negotiated, or executed by personnel located in a U.S. branch or office, or transactions on other types of securitybased swaps (including equity swaps) whether on U.S. or non-U.S. underliers. See ANE Adopting Release, 81 FR at 8627. 334 See ANE Adopting Release, 81 FR at 8627. 335 See part VII.B.3.a, infra where we use these estimates to calculate certain costs associated with an additional alternative. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules a. Non-U.S. Dealing Entities That Use Guidance in Connection With Counting, Business Conduct, and Regulatory Reporting and Public Dissemination Requirements Because non-U.S. security-based swap dealers are entities that fall within the scope of the de minimis counting, business conduct, and regulatory reporting and public dissemination provisions due to their dealing activities and their obligations under these provisions depend in part on the ‘‘arranged, negotiated, or executed’’ test, the Commission preliminarily believes that non-U.S. security-based swap dealers would be persons that potentially may change their assessment with respect to compliance with security-based swap dealer regulation generally as a result of the proposed guidance. Based on 2017 TIW data, the Commission estimates that up to 22 non-U.S. persons 336 will register as security-based swap dealers. b. Non-U.S. Persons That Use Guidance in Connection With de minimis assessment khammond on DSKBBV9HB2PROD with PROPOSALS2 A second group of persons that may be affected by the proposed guidance are non-U.S. persons that may need to assess the amount of their market-facing activity against the de minimis thresholds solely because of the inclusion for the purposes of the de minimis threshold analysis of securitybased swap transactions between two non-U.S. persons that are arranged, negotiated, or executed by personnel located in the U.S. As discussed elsewhere,337 the Commission preliminarily believes that these nonU.S. persons will incur reporting obligations under Regulation SBSR in connection with security-based swap transactions with other non-U.S. persons that are arranged, negotiated, or executed by U.S. personnel. As discussed in part VII.A.7 above, this group consists of five non-U.S. persons based on the analysis of 2017 TIW data, which the Commission has increased by a factor of two to 10. 336 This estimate is based on the number of accounts in TIW data with total notional volume in excess of de minimis thresholds, increased by a factor of two, to account for any potential growth in the security-based swap market, to account for the fact that the Commission is limited in observing transaction records for activity between non-U.S. persons to those that reference U.S. underliers, and to account for the fact that the Commission does not observe security-based swap transactions other than in single-name CDS. See Business Conduct Adopting Release, 81 FR at 30105 and note 1633 therein. 337 See Regulation SBSR Amendments Adopting Release, 81 FR 156 at 53614 & n.657. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 c. Non-U.S. Persons That Use Guidance in Connection With Assessing Regulatory Reporting and Public Dissemination Requirements A third group of persons that may be affected by the proposed guidance are unregistered non-U.S. persons that will incur costs, under Rule 908(b)(5), to assess whether they engage in securitybased swap transactions with non-U.S. persons that are arranged, negotiated, or executed by U.S. personnel, and if so, whether they will incur reporting duties under Rule 901(a)(2)(ii)(E).338 The Commission preliminarily estimates that this group consists of five non-U.S. persons,339 who are in addition to the non-U.S. persons described in part VII.A.8.b above. d. Non-U.S. Persons Affiliated With U.S. Dealing Entities That Consider Changes to Booking Practices A fourth group of persons that may be affected by the proposed guidance are the non-U.S. persons affiliated with those U.S. dealers that may use U.S. personnel to arrange, negotiate, or execute transactions with non-U.S. counterparties and book those transactions to the non-U.S. persons. As discussed in part VII.A.7 above, these U.S. dealers may have an incentive to engage in such booking practices in order to utilize the proposed exception to the extent that they wish to continue using U.S. personnel to arrange, negotiate, or execute transactions with non-U.S. counterparties and the compliance cost associated with the proposed exception is less than the cost of compliance with Title VII requirements and the cost of business restructuring. As discussed in part VII.A.7 above, the Commission preliminarily estimates that up to 12 338 See Regulation SBSR Amendments Adopting Release, 81 FR 156 at 53638. 339 The Commission has previously estimated that there are four unregistered non-U.S. persons that will incur assessment costs as a result of Rule 908(b)(5). See Regulation SBSR Amendments Adopting Release, 81 FR 156 at 53638 n.919. In light of the changes in the security-based swap market, as noted in part VII.A.4 supra, the Commission has updated the estimate using 2017 TIW data and preliminarily believes that there are five unregistered non-U.S. persons that will incur assessment costs as a result of Rule 908(b)(5). Because of the relatively low volume of transaction activity of these five entities during 2017 and the existence of affiliations with other entities expected to register as security-based swap dealers, the Commission preliminarily believes that, even after accounting for growth in the security-based swap market and acknowledging the limitations of the transaction data available for analysis, five is a reasonable estimate of the number of unregistered dealing entities likely to incur assessment costs as a result of Rule 908(b)(5). PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 24253 U.S. dealers 340 potentially may use the proposed exception. To the extent that each of these dealers chooses to book transactions subject to the proposed exception to one unregistered non-U.S. person affiliate, the Commission preliminarily believes that this fourth group of non-U.S. persons would consist of 12 unregistered non-U.S. persons. The Commission preliminarily believes that these non-U.S. persons may incur reporting duties under Rule 901(a)(2)(ii)(E) 341 and are in addition to the non-U.S. persons described in part VII.A.8.c above. All told, the Commission preliminarily believes that up to 49 nonU.S. persons 342 potentially may be affected by the proposed guidance. 9. Statutory Disqualification In the Rule of Practice 194 Adopting Release, the Commission analyzed, among others, data on the number of natural persons associated with SBS Entities, applications for review under parallel review processes, and relevant research on statutory disqualification. In that release, the Commission estimated that SBS Entities may file up to five applications per year with respect to their associated natural persons. A more detailed discussion of these data and estimates can be found in that release.343 If associated natural persons who become statutorily disqualified are located outside of the U.S. and transact exclusively with foreign counterparties and foreign branches of U.S. counterparties, the proposal may decrease the number of these applications for relief and corresponding direct costs. Based on the Commission’s experience with brokerdealers and on the Commission’s understanding of current market activity in security-based swaps, the Commission preliminarily estimates that the proposed exclusion may reduce the number of applications under Rule 340 This is calculated as the six U.S. dealers identified in 2017 TIW data increased by a factor of 2 to 12. 341 See Regulation SBSR Amendments Adopting Release, 81 FR 156 at 53638. 342 Calculated as 22 non-U.S. dealing entities that use the proposed guidance in connection with counting, business conduct, and regulatory reporting and public dissemination requirements (part VII.A.8.a) + 10 non-U.S. persons that use the proposed guidance in connection with de minimis assessment (part VII.A.8.b) + 5 non-U.S. persons that use the proposed guidance in connection with assessing regulatory reporting and public dissemination requirements (part VII.A.8.c) + 12 non-U.S. persons affiliated with U.S. dealing entities that consider changes to booking practices (part VII.A.8.d) = 49 non-U.S. persons. 343 See Rule of Practice 194 Adopting Release, 84 FR at 4925. E:\FR\FM\24MYP2.SGM 24MYP2 24254 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules of Practice 194 by between zero and two applications. 10. Certification, Opinion of Counsel, and Employee Questionnaires As a baseline matter, SBS Entity Registration rules, including Rule 15Fb2–1 and the certification and opinion of counsel requirements in Rule 15Fb2–4, have been adopted but compliance with registration rules is not yet required. In addition, Rule 17a–3(a)(12) requires all broker-dealers, including broker-dealers that may seek to register with the Commission as SBS Entities, to make and keep current a questionnaire or application for employment for each associated person. In the Recordkeeping and Reporting Proposing Release, the Commission proposed a parallel requirement, in Rule 18a–5, for standalone and bank SBS Entities. The Commission is proposing modifications to proposed Rule 18a–5(a)(10) and Rule 18a–5(b)(8). Based on 2017 TIW data, of 22 non-U.S. persons that may register with the Commission as security-based swap dealers, the Commission estimates that approximately 12 security-based swap dealers will be foreign banks and another 3 will be foreign stand-alone security-based swap dealers that may be affected by these proposed modifications. khammond on DSKBBV9HB2PROD with PROPOSALS2 B. Proposed Amendment to Rule 3a71– 3 This section discusses the potential costs and benefits associated with the proposed amendment to Rule 3a71–3, the effects of the proposed amendment on efficiency, competition, and capital formation, and alternative approaches to the proposed amendment. The Commission’s analysis considers the costs and benefits of both Alternative 1 and Alternative 2. Because many of the conditions associated with the exception are the same in both proposed alternatives, the Commission expects them to produce many of the same economic consequences. Where the Commission believes those costs and benefits would be the same under either proposed alternative, they are discussed together. Where the costs and benefits may differ, they are discussed separately. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Under either Alternative 1 or Alternative 2, each person that engages in arranging, negotiating, and executing activity with non-U.S. counterparties using affiliated U.S.-based personnel would have two possible options for complying with the Commission’s Title VII regulations regarding the crossborder application of the ‘‘securitybased swap dealer’’ definition. The first option would be for the persons to follow current security-based swap dealer counting requirements without regard for the exception afforded by the proposed amendment (whichever alternative is adopted). Specifically, a person could opt to incur the assessment costs to determine (i) whether any portion of their securitybased swap transaction activities must be counted against the dealer de minimis thresholds, and (ii) whether the total notional amount of relevant transaction activities exceeds the de minimis threshold.344 If the amount of its activities crosses the de minimis thresholds, then the person would have to register as a security-based swap dealer and become subject to Title VII security-based swap dealer requirements. A person that chooses to comply in this manner would experience no incremental economic effects under the proposed alternative as compared to the baseline. The second option would be to rely on the exception afforded by the proposed amendment (whichever alternative is adopted). Under the proposed amendment, a person could register one entity as a registered security-based swap dealer (under both proposed alternatives) or as a registered broker (only under Alternative 2) 345 to arrange, negotiate, or execute transactions with non-U.S. counterparties on its behalf using personnel located in a U.S. branch or office. Doing so could allow it to avoid the direct regulation of itself (or multiple affiliated entities) as a securitybased swap dealer. A person that chooses to use this exception and incur 344 See part I.A.2, supra. Alternative 2, registration may not be required if, as discussed in part VII.A.7, supra, persons who may take advantage of this exception already have a registered broker-dealer affiliate and choose to use their existing registered broker-dealer affiliate to take advantage of the exception. See also part VII.B.1.a, infra. 345 Under PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 the associated costs to meet the conditions of this exception, detailed below, likely would not incur assessment costs with respect to security-based swap transactions with non-U.S. counterparties that are arranged, negotiated, or executed by personnel located in the United States. As discussed above, the Commission preliminarily believes that up to 24 346 persons potentially may use the proposed exception to the extent that the compliance costs associated with the proposed exception are lower than the compliance costs in the absence of the proposed exception. 1. Costs and Benefits of the Proposed Amendment The Commission preliminarily believes that the proposed amendment would provide increased flexibility to security-based swap market participants to comply with the Title VII framework while preserving their existing business practices. This could reduce their compliance burdens, while supporting the Title VII regime’s benefit of mitigating risks in foreign securitybased swap markets that may flow into U.S. financial markets through liquidity spillovers. The Commission also preliminarily believes that the amendments could reduce market fragmentation and associated distortions. At the same time, and as detailed later in this section, the Commission acknowledges that the proposed amendment potentially limits certain other programmatic benefits of the Title VII regime by excusing security-based swap market participants that elect to use the exception from some of the Title VII requirements that would otherwise apply to their activity. The Commission preliminarily believes that the proposed amendment will result in compliance costs for persons that elect to use the exception, as described below. However, the Commission expects that persons will elect to incur those costs only where it would be less costly than either complying with the Title VII framework or restructuring to avoid using U.S. personnel to arrange, negotiate, or execute transactions with non-U.S. counterparties. 346 See E:\FR\FM\24MYP2.SGM part VII.A.7, supra. 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 a. Costs and Benefits for Persons That May Use the Proposed Amendment The primary benefit of the proposed amendment is that it would permit a person further flexibility to opt into a Title VII compliance framework that is compatible with its existing business practices. While the registered U.S. person would be the entity adhering to most of the conditions set forth in the proposed amendment and the non-U.S. person would be responsible for complying with some of the other conditions,347 for the purposes of this analysis, the Commission assumes that the costs of complying with these conditions will be passed on to the nonU.S. person affiliate. In the absence of the proposed amendment, a non-U.S. person could incur the cost of registering as a security-based swap dealer and a financial group may incur the cost of registering at least one security-based swap dealer 348 due to the ‘‘arranged, negotiated, or executed’’ counting test.349 The non-U.S. person or group accordingly would incur the cost necessary for compliance with the full set of security-based swap dealer requirements by one or more registered security-based swap dealers. These burdens, contingent on exceeding the de minimis threshold, are in addition to the assessment costs that the non-U.S. person would incur to identify and count relevant market-facing activity toward the de minimis threshold. As discussed in the ANE Adopting Release, such a non-U.S. person could respond to these costs by restructuring its security-based swap business to avoid using U.S. personnel to arrange, negotiate, or execute transactions with non-U.S. counterparties. Such a strategy would allow the non-U.S. person to avoid counting transactions between the non-U.S. person and its non-U.S. counterparties toward the non-U.S. person’s de minimis threshold. In addition to reducing the likelihood of incurring the programmatic costs associated with the full set of security347 See, e.g., proposed Alternative 1—proposed paragraph (d)(1)(iii)(A) of Rule 3a71–3. 348 The available data limit the Commission’s ability to discern the multiple different legal entities each of which engages in security-based swap market-facing activity at levels above the de minimis thresholds because the way in which nonU.S. persons organize their dealing business may not align with the way their transaction volumes are accounted for in TIW. In particular, it is possible that some of the 10 non-U.S. persons identified in the TIW data as potential registrants aggregate transaction volumes of multiple non-U.S. person dealers. In such cases, the exclusion of transactions between these non-U.S. person dealers and nonU.S. counterparties from the de minimis calculations may result in multiple non-U.S. person dealers no longer meeting the de minimis threshold. 349 See id. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 based swap dealer requirements under Title VII, this response to current requirements could reduce the assessment costs associated with counting transactions toward the de minimis threshold and fully abrogate the need to identify transactions with non-U.S. counterparties that involve U.S. personnel.350 However, the Commission also noted in the ANE Adopting Release that restructuring is itself costly. To reduce the costs of assessment and potential dealer registration, a non-U.S. person may need to incur costs to ensure that U.S. personnel are not involved in arranging, negotiating, or executing transactions with non-U.S. counterparties. The Commission was able to quantify some, but not all of the costs of restructuring in the ANE adopting release.351 As discussed above in part VII.A.2.d, non-U.S. persons may make their location decisions based on business considerations such as maintaining 24-hour operations or the value of local market expertise. Thus, restructuring business lines or relocating personnel (or the activities performed by U.S. personnel) to avoid the United States could result in less efficient operations for non-U.S. persons active in the security-based swap market. The proposed exception would benefit non-U.S. persons by offering them an alternative to costly relocation or restructuring that would still permit them to avoid some of the costs associated with assessing their marketfacing activity while also reducing the likelihood that their market-facing activity crosses the de minimis threshold. As discussed in detail below, the availability of the proposed exception would be conditioned on the use of a registered entity and compliance with certain Title VII requirements designed to protect counterparties but not all Title VII 350 In 2016, the Commission estimated a cost of $410,000 per entity to establish systems to identify market-facing activity arranged, negotiated, or executed using U.S. personnel and $6,500 per entity per year for training, compliance and verification costs. See ANE Adopting Release, 81 FR at 8627. Adjusted for inflation, these amounts are approximately $435,000 and $6,900 in 2018 dollars. 351 In 2016, the Commission estimated it would cost approximately $28,300 per entity to establish policies and procedures to restrict communication between personnel located in the United States employed by non-U.S. persons or their agents, and other personnel involved in market-facing activity. See ANE Adopting Release, 81 FR at 8628. Adjusted for inflation, this is approximately $30,000. The Commission notes that the foregoing is one of the ways in which a non-U.S. person might choose to restructure its business activities. Other restructuring methods, such as the relocation of U.S. personnel to locations outside the United States, potentially would be more costly. PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 24255 requirements. To the extent that the costs of compliance with these proposed conditions as part of Alternative 1 and Alternative 2 are lower than the compliance costs in the absence of the proposed amendment and the costs of business restructuring, the exception could reduce the regulatory cost burden for the non-U.S. person or group. The Commission recognizes that U.S.based dealing entities may use the proposed exception by booking transactions with non-U.S. counterparties into non-U.S. affiliates, thereby avoiding the application of the full set of security-based swap dealer requirements to those transactions and the associated security-based swaps.352 As discussed further in part VII.B.1.b infra, U.S.-based dealing entities that use the conditional exception in this manner may benefit by incurring lower compliance costs when providing liquidity to non-U.S. counterparties. The Commission’s designation of a listed jurisdiction by order could signal to non-U.S. counterparties that a nonU.S. person was subject to a regulatory regime that, at a minimum, is consistent with the public interest in terms of financial responsibility requirements, the jurisdiction’s supervisory compliance program, the enforcement authority in connection with those requirements, and other factors the Commission may consider. This process potentially provides a certification benefit to non-U.S. persons availing themselves of the proposed exception by demonstrating to non-U.S. counterparties the applicability of regulatory requirements that would be in the public interest. Table 2 summarizes the quantifiable costs the Commission estimates nonU.S. persons could incur as a result of the conditions associated with the proposed exception. The per-entity cost estimates assume the de novo formation of a security-based swap dealer or broker-dealer. The Commission expects that these are likely upper bounds for per-entity costs for two reasons. First, non-U.S. persons may already be regulated by jurisdictions with similar requirements and, as a consequence of foreign regulatory requirements, may already have established infrastructure, policies, and procedures that would facilitate meeting the conditions of the proposed exception. For example, a non-U.S. person regulated by a jurisdiction with similar trade acknowledgement and verification requirements would likely already have an order management system in place capable of complying with Rule 15Fi–2, 352 See E:\FR\FM\24MYP2.SGM parts III.A and VII.A.7, supra. 24MYP2 24256 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules making development of a novel system for the purpose of taking advantage of the proposed exception unnecessary. Second, non-U.S. persons that already have an affiliated registered securitybased swap dealer (under Alternative 1 or 2) or an affiliated registered brokerdealer (under Alternative 2) likely would use their existing registered affiliates to rely on the proposed exception rather than register new entities. TABLE 2—ESTIMATES OF QUANTIFIABLE COSTS ASSOCIATED WITH PROPOSED AMENDMENT TO RULE 3a71–3 353 Initial costs Registered entity: Security-based swap dealer registration .................................................. Security-based swap dealer capital requirement ..................................... Applicable SBSD requirements ................................................................ Recordkeeping: • If registered entity is a registered security-based swap dealer and registered broker-dealer ......................................................... • If registered entity is a stand-alone registered SBSD ................... • If registered entity is a bank registered SBSD .............................. Trading relationship documentation ................................................................ Consent to service of process ......................................................................... Broker-dealer registration 354 ........................................................................... Broker-dealer capital requirement 355 .............................................................. Non-U.S. entity: Trading relationship documentation ......................................................... Consent to service of process .................................................................. Disclosure of limited Title VII applicability ................................................ ‘‘Listed jurisdiction’’ applications ...................................................................... Ongoing costs Per entity Aggregate Per entity Aggregate $514,000 ........................ 11,688,700 $12,336,000 ........................ 280,528,800 $2,705 3,000,000 522,900 * $64,920 72,000,000 12,549,600 437,444 231,988 178,534 3,000 409 291,500 ........................ 10,498,656 5,567,712 4,284,816 72,000 9,816 7,000,000 ........................ 101,278 59,541 42,952 3,528 ........................ 53,000 35,300 2,430,672 1,428,984 1,030,848 84,672 ........................ 1,272,000 847,200 3,000 409 * 29,715 115,920 72,000 9,816 † 713,160 347,760 7,056 ........................ ........................ ........................ 169,344 ........................ ........................ ........................ * and 100 hours. † and 2,400 hours. Under Alternative 1, if a non-U.S. person, or its affiliated group, seeks to utilize the exception, that person, or its affiliated group, would incur the cost of registering one U.S. based entity as a security-based swap dealer (if there otherwise is not an affiliated securitybased swap dealer present).356 The Commission estimates per entity initial costs of registering a security-based swap dealer of approximately $514,000.357 In addition, the non-U.S. person or its affiliated group would incur ongoing costs associated with its registered security-based swap dealer of approximately $2,705.358 Based on the khammond on DSKBBV9HB2PROD with PROPOSALS2 353 Unless otherwise stated, cost estimates presented in Table 2 apply to both Alternatives 1 and 2. 354 Cost applicable only to Alternative 2. 355 Cost applicable only to Alternative 2. 356 This is a Title VII programmatic cost and is in addition to other Title VII programmatic costs discussed in part VII.B.1.b, infra. 357 These estimates incorporate quantifiable initial costs presented in the Registration Adopting Release, 80 FR at 48990–48995 and 49005–49006, adjusted for CPI inflation using data from the Bureau of Labor Statistics between 2015 and 2018. Specifically, per entity initial costs are estimated in 2015 dollars as $11,886 (filing Form SBSE) + $12,125 (senior officer certification) + $410,310 (associated natural person certifications) + $24,735 (associated entity person certifications) + $25,424.50 (initial filing of Schedule F) = $484,480.50, and adjusted by 1.06 to $513,549.30 or approximately $514,000 in current dollars. 358 These estimates incorporate quantifiable annual costs presented in the Registration Adopting Release, 80 FR at 48990–48995 and 49005–49006, adjusted for CPI inflation using data from the Bureau of Labor Statistics between 2015 and 2018. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Commission’s estimate that up to 24 359 persons might avail themselves of Alternative 1, the aggregate initial costs associated with registering securitybased swap dealers under Alternative 1 would be approximately $12,336,000 and the aggregate ongoing costs would be approximately $64,920.360 The U.S. person affiliate of such a non-U.S. person or affiliated group would also be required to meet minimum capital requirements as a registered securitybased swap dealer.361 At a minimum, the Commission estimates the ongoing cost of this capital to be approximately Specifically, ongoing costs are estimated in 2015 dollars as $849 (amending Form SBSE) + $1,373.25 (amending Schedule F) + $46.31 (retaining signature pages) + $283 (filing withdrawal form) = $2,551.56, and adjusted by 1.06 to $2,704.65 or approximately $2,705 in current dollars. 359 See part VII.A.7, supra. 360 Aggregate initial costs calculated as 24 × $514,000 = $12,336,000. Aggregate ongoing costs calculated as 24 × $2,705 = $64,920. 361 Under proposed rules, a registered non-bank security-based swap dealer may be subject to minimum fixed-dollar capital requirements of $20 million or $1 billion in net capital and $100 million or $5 billion in tentative net capital, depending in part on whether it is a stand-alone security-based swap dealer or a security-based swap dealer that is dually registered as a broker-dealer, and on whether it uses models to compute deductions for market and credit risk. See Capital, Margin and Segregation Proposing Release, 77 FR at 70329, 70333. Registered security-based swap dealers that have a prudential regulator must comply with capital requirements that the prudential regulators have prescribed. See 80 FR 74840 (Nov. 30, 2015) (adopting capital requirements for bank securitybased swap dealers). PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 $3 million 362 per entity and $72 million in aggregate.363 To the extent that this capital is held in liquid assets 364 that 362 This estimation assumes that the registered entity must maintain a minimum of $20 million in net capital. See note 361, supra. The Commission estimated the cost of capital in two ways. First, the time series of average return on equity for all U.S. banks between the fourth quarter 1983 and the first quarter 2018 (see Federal Financial Institutions Examination Council (US), Return on Average Equity for all U.S. Banks [USROE], retrieved from FRED, Federal Reserve Bank of St. Louis on December 7, 2018, available at https:// fred.stlouisfed.org/series/USROE), are averaged to arrive at an estimate of 11.26%. The cost of capital is calculated as 11.26% × $20 million = $2.252 million or approximately $2.3 million. The Commission preliminarily believes that use of the historical return on equity for U.S. banks adequately captures the cost of capital because of the 12 persons that potentially may use the proposed exception, eight are banks and three have bank affiliates. See part VII.A.7 supra. To the extent that this approach does not adequately capture the cost of capital of persons that are not banks or have no bank affiliates, the Commission supplements the estimation by also using the annual stock returns on financial stocks to calculate the cost of capital. With this second approach, the annual stock returns on a value-weighted portfolio of financial stocks from 1983 to 2017 (see Professor Ken French’s website, available at https:// mba.tuck.dartmouth.edu/pages/faculty/ken.french/ data_library.html) are averaged to arrive at an estimate of 16.96%. The cost of capital is calculated as 16.96% × $20 million = $3.392 million or approximately $3.4 million. The final estimate of the cost of capital is the average of $2.3 million and $3.4 million = (2.3 + 3.4)/2 = $2.85 million or approximately $3 million. 363 Aggregate costs calculated as $3 million × 24 entities = $72 million. 364 See Capital, Margin and Segregation Proposing Release, 77 FR at 70219. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 generate a positive return to the registered security-based swap dealer, that positive return could be used to offset, at least in part, the ongoing cost of capital. In addition to registering securitybased swap dealers, U.S. person affiliates of non-U.S. persons seeking to rely on Alternative 1 would be required to comply with applicable securitybased swap dealer requirements, including those related to disclosures of risks, characteristics, incentives, and conflicts of interest, suitability, communications, trade acknowledgment and verification, and portfolio reconciliation.365 The Commission estimates initial costs associated with these requirements of up to approximately $11,688,700 per entity,366 or up to $280,528,800 in aggregate,367 and ongoing costs associated with these requirements of 365 See proposed Rule 3a71–3(d)(1)(ii)(B). The costs of complying with applicable security-based swap dealer requirements under proposed Alternative 1 are Title VII programmatic costs and are in addition to other Title VII programmatic costs discussed in part VII.B.1.b, infra. 366 These estimates incorporate quantifiable initial costs presented in the Business Conduct Adopting Release, 81 FR at 30092–30093, 30111, 30117, 30126, the Trade Acknowledgement and Verification Adopting Release, 81 FR at 39839, and the Risk Mitigation Proposing Release, 84 FR at 4658–4659, adjusted for CPI inflation, where applicable, using data from the Bureau of Labor Statistics between 2016 and 2018. Specifically, initial costs associated with disclosures, suitability, communications, and trade acknowledgement and verification are estimated in 2016 dollars as $906,666.67 (disclosures) + $ 523,640 (suitability) + $16,680 (communications) + $128,550 (trade acknowledgement and verification) = $1,575,536.67, and adjusted by 1.05 to $1,654,313.50 in current dollars. The cost associated with disclosures has been adjusted to account for the fact that the disclosures of clearing rights and daily mark are not part of proposed paragraph (d)(1)(ii)(B)(1) of Rule 3a71–3. Initial costs associated with portfolio reconciliation are estimated in current dollars as $10,034,360. Per entity initial costs = $1,654,313.50 + $10,034,360 = $11,688,673.50 or approximately $11,688,700.00. 367 Aggregate initial costs = Per entity initial costs of $11,688,700.00 × 24 entities = $280,528,800. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 approximately $522,900 per entity,368 or up to $12,549,600 in aggregate.369 Under Alternative 1, the registered security-based swap dealer also would be responsible for creating and maintaining books and records related to the transactions subject to the exception that are required, as applicable, by Exchange Act Rules 18a– 5 and 18a–6, including any books and records requirements relating to the provisions specified in proposed paragraph (d)(1)(iii)(B).370 If the registered security-based swap dealer is also a registered broker-dealer, then it would need to comply with Exchange Act Rules 17a–3 and 17a–4. The Commission estimates the initial costs associated with these rules to be approximately $437,444 per entity,371 or 368 These estimates incorporate quantifiable ongoing costs presented in the Business Conduct Adopting Release, 81 FR at 30092–30093, 30111, 30126, the Trade Acknowledgement and Verification Adopting Release, 81 FR at 39839, and the Risk Mitigation Proposing Release, 84 FR at 4658–4659, adjusted for CPI inflation, where applicable, using data from the Bureau of Labor Statistics between 2016 and 2018. Specifically, ongoing costs associated with disclosures, communications, and trade acknowledgement and verification are estimated in 2016 dollars as $392,533.33 (disclosures) + $89,094 (trade acknowledgement and verification) = $481,627.33, and adjusted by 1.05 to $505,708.70 in current dollars. The cost associated with disclosures has been adjusted to account for the fact that the disclosures of clearing rights and daily mark are not part of proposed paragraph (d)(1)(ii)(B)(1) of Rule 3a71–3. Ongoing costs associated with portfolio reconciliation are estimated in current dollars as $17,180. Per entity ongoing costs = $505,708.70 + $17,180 = $522,888.70 or approximately $522,900. 369 Aggregate ongoing costs = Per entity ongoing costs of $522,900 × 24 entities = $12,549,600. 370 See proposed paragraph (d)(1)(iii)(B) of Rule 3a71–3. 371 The per entity initial costs associated with proposed amendments to Exchange Act Rule 17a– 3 (assuming the entity is not an ANC broker-dealer) = 150 hours × $283/hour national hourly rate for a compliance manager = $42,450 (See Recordkeeping Proposing Release, 79 FR at 25262 for burden hours). The $283 per hour figure for a compliance manager is from SIFMA’s Management & Professional Earnings in the Securities Industry 2013, as modified by Commission staff to account for an 1,800-hour work-year, and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead. See Recordkeeping Proposing Release, 79 FR at 25295 n.1403. To estimate the per entity initial costs associated with current Exchange Act Rule 17a–3, the Commission assumes these costs are proportional to the per entity ongoing costs associated with current Exchange Act Rule 17a–3. Further, the Commission assumes that this proportion is equal to the proportion of per entity initial costs to per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a–3. As discussed in note 373 infra, the Commission estimates the per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a–3 as $12,288. The proportion of per entity initial costs to per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a–3 is $42,450/$12,288 or approximately 3.5. The per entity initial costs associated with current Exchange Act Rule 17a–3 is estimated as 3.5 × PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 24257 up to $10,498,656 in aggregate,372 and ongoing costs associated with these rules of approximately $101,278 per entity,373 or up to $2,430,672 in $53,880.83 (per entity ongoing costs associated with current Exchange Act Rule 17a–3, see note 373 infra) = $188,582.91. The per entity initial costs associated with proposed amendments to Exchange Act Rule 17a– 4 (assuming the entity is not an ANC broker-dealer) = 156 hours × $312/hour national hourly rate for a senior database administrator = $48,672. (See Recordkeeping Proposing Release, 79 FR at 25265 for burden hours). The $312 per hour figure for a senior database administrator is from SIFMA’s Management & Professional Earnings in the Securities Industry 2013, as modified by Commission staff to account for an 1,800-hour work-year, and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead. To estimate the per entity initial costs associated with current Exchange Act Rule 17a–4, the Commission assumes these costs are proportional to the per entity ongoing costs associated with current Exchange Act Rule 17a–4. Further, the Commission assumes that this proportion is equal to the proportion of per entity initial costs to per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a–4. As discussed in note 373 infra, the Commission estimates the per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a–4 as $7,928. The proportion of per entity initial costs to per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a– 4 is $48,672/$7,928 or approximately 6.2. The per entity initial costs associated with current Exchange Act Rule 17a–4 is estimated as 6.2 – $21,448 (per entity ongoing costs associated with current Exchange Act Rule 17a–4, see note 373 infra) = $132,977.60. The per entity initial costs associated with amendments to Exchange Act Rules 17a–3 and 17a– 4 = $42,450 + $188,582.91 + 48,672 + $132,977.60 = $412,682.51, and adjusted by 1.06 CPI inflation between 2014 and 2018 (from the Bureau of Labor Statistics) to $437,443.46 in current dollars or approximately $437,444. 372 Aggregate initial costs = Per entity initial costs of $437,444 × 24 entities = $10,498,656. 373 The per entity ongoing costs associated with current Exchange Act Rule 17a–3 = 673.40 hours × $64/hour national hourly rate for a compliance clerk + per entity external costs of $10,783.23 = $53,880.83. Per entity ongoing burden hours = total burden hours of 2,763,612/4,104 broker-dealer respondents = 673.40 hours. Per entity external costs = total external costs of $44,254,361/4,104 broker-dealer respondents = $10,783.23. For number of respondents, total burden hours, and total external costs, see Commission, ‘‘Supporting Statement for the Paperwork Reduction Act Information Collection Submission for Rule 17a–3’’ (Mar. 9, 2017), available at https://www.reginfo.gov/ public/do/DownloadDocument?objectID=72125401. The $64 per hour figure for a compliance clerk is from SIFMA’s Office Salaries in the Securities Industry 2013, as modified by Commission staff to account for an 1,800-hour work-year, and multiplied by 2.93 to account for bonuses, firm size, employee benefits, and overhead. The per entity ongoing costs associated with proposed amendments to Exchange Act Rule 17a– 3 (assuming the entity is not an ANC broker-dealer) = 192 hours × $64/hour national hourly rate for a compliance clerk = $12,288 (See Recordkeeping Proposing Release, 79 FR at 25262 for burden hours). The per entity ongoing costs associated with current Exchange Act Rule 17a–4 = 257 hours × E:\FR\FM\24MYP2.SGM Continued 24MYP2 24258 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 aggregate.374 If the registered securitybased swap dealer is a stand-alone registered security-based swap dealer, then it would need to comply with Exchange Act Rules 18a–5 and 18a–6. The Commission estimates the initial costs associated with these rules to be approximately $231,988 per entity,375 or up to $5,567,712 in aggregate,376 and ongoing costs associated with these rules of approximately $59,541 per entity,377 or up to $1,428,984 in $64/hour national hourly rate for a compliance clerk + per entity external costs of $5,000 = $21,448. See Commission, ‘‘Supporting Statement for the Paperwork Reduction Act Information Collection Submission for Rule 17a–4’’ (Oct. 19, 2016), available at https://www.reginfo.gov/public/do/ DownloadDocument?objectID=68823501. The per entity on going costs associated with proposed amendments to Exchange Act Rule 17a– 4 (assuming the entity is not an ANC broker-dealer) = 72 hours × $64/hour national hourly rate for a compliance clerk + per entity external costs of $3,320 = $7,928 (See Recordkeeping Proposing Release, 79 FR at 25265 for burden hours and external costs). The total per entity ongoing costs = $53,880.83 + $12,288 + $21,448 + $7,928 = $95,544.83, and adjusted by 1.06 CPI inflation between 2014 and 2018 (from the Bureau of Labor Statistics) to $101,277.52 in current dollars or approximately $101,278. 374 Aggregate ongoing costs = Per entity ongoing costs of $101,278 × 24 entities = $2,430,672. 375 The per entity initial costs associated with Exchange Act Rule 18a–5 (assuming that the standalone registered security-based swap dealer does not have a prudential regulator and is not an ANC stand-alone registered security-based swap dealer) = 320 hours × $283/hour national hourly rate for a compliance manager + per entity external costs of $1,000 = $91,560 (See Recordkeeping Proposing Release, 79 FR at 25262 for burden hours and external costs). See note 371, supra, for a derivation of the national hourly rate for a compliance manager. The per entity initial costs associated with Exchange Act Rule 18a–6 (assuming that the standalone registered security-based swap dealer does not have a prudential regulator and is not an ANC stand-alone registered security-based swap dealer) = 408 hours × $312/hour national hourly rate for a senior database administrator = $127,296 (See Recordkeeping Proposing Release, 79 FR at 25265 for burden hours). See note 371, supra, for a derivation of the national hourly rate for a senior database administrator. The per entity initial costs associated with Exchange Act Rules 18a–5 and 18a–6 = $91,560 + 127,296 = $218,856, and adjusted by 1.06 CPI inflation between 2014 and 2018 (from the Bureau of Labor Statistics) to $231,987.36 in current dollars or approximately $231,988. 376 Aggregate initial costs = Per entity initial costs of $231,988 × 24 entities = $5,567,712. 377 The per entity ongoing costs associated with Exchange Act Rule 18a–5 (assuming that the standalone registered security-based swap dealer does not have a prudential regulator and is not an ANC stand-alone registered security-based swap dealer) = 400 hours × $64/hour national hourly rate for a compliance clerk + per entity external costs of $4,650 = $30,250 (See Recordkeeping Proposing Release, 79 FR at 25262 for burden hours and external costs). See note 373, supra, for a derivation of the national hourly rate for a compliance clerk. The per entity ongoing costs associated with Exchange Act Rule 18a–6 (assuming that the standalone registered security-based swap dealer does VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 aggregate.378 The discussion in part VII.A.7 above suggests that a number of the persons that may make use of the proposed exception likely would be banks.379 In light of this finding, the Commission also presents cost estimates associated with Exchange Act Rules 18a–5 and 18a–6 under the assumption that the registered security-based swap dealer is a bank registered securitybased swap dealer. The Commission estimates the initial costs associated with these rules to be approximately $178,534 per entity,380 or up to $4,284,816 in aggregate,381 and ongoing costs associated with these rules of not have a prudential regulator and is not an ANC stand-alone registered security-based swap dealer) = 310 hours × $64/hour national hourly rate for a compliance clerk + per entity external costs of $6,080 = $25,920. (See Recordkeeping Proposing Release, 79 FR at 25265 for burden hours and external costs). The per entity ongoing costs associated with Exchange Act Rules 18a–5 and 18a–6 = $30,250 + 25,920 = $56,170, and adjusted by 1.06 CPI inflation between 2014 and 2018 (from the Bureau of Labor Statistics) to $59,540.20 in current dollars or approximately $59,541. 378 Aggregate ongoing costs = Per entity ongoing costs of $59,541 × 24 entities = $1,428,984. 379 See part VII.A.7, supra, stating that of the 12 persons identified in 2017 TIW data as potential users of the proposed exception, eight are banks. 380 The per entity initial costs associated with Exchange Act Rule 18a–5 (assuming that the registered security-based swap dealer has a prudential regulator) = 260 hours × $283/hour national hourly rate for a compliance manager = $73,580 (See Recordkeeping Proposing Release, 79 FR at 25262 for burden hours). See note 371, supra, for a derivation of the national hourly rate for a compliance manager. The per entity initial costs associated with Exchange Act Rule 18a–6 (assuming that the registered security-based swap dealer has a prudential regulator) = 304 hours × $312/hour national hourly rate for a senior database administrator = $94,848 (See Recordkeeping Proposing Release, 79 FR at 25265 for burden hours). See note 371, supra, for a derivation of the national hourly rate for a senior database administrator. The per entity initial costs associated with Exchange Act Rules 18a–5 and 18a–6 = $73,580 + $94,848 = $168,428, and adjusted by 1.06 CPI inflation between 2014 and 2018 (from the Bureau of Labor Statistics) to $178,533.68 in current dollars or approximately $178,534. 381 Aggregate initial costs = Per entity initial costs of $178,534 × 24 entities = $4,284,816. PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 approximately $42,952 per entity,382 or up to $1,030,848 in aggregate.383 The registered security-based swap dealer also must obtain from the nonU.S. person relying on the exception, and maintain, documentation encompassing all terms governing the trading relationship between the nonU.S. person and its counterparty relating to the transactions subject to this exception, including, without limitation, terms addressing payment obligations, netting of payments, events of default or other termination events, calculation and netting of obligations upon termination, transfer of rights and obligations, allocation of any applicable regulatory reporting obligations, governing law, valuation, and dispute resolution.384 The Commission preliminarily believes that both the registered entity and its non-U.S. affiliate will incur costs to comply with this condition. However as discussed above, the Commission preliminarily believes that the costs incurred by the registered entity would be passed on to the non-U.S. affiliate.385 For registered entities, the Commission estimates the initial costs associated with this condition to be approximately $3,000 per registered entity,386 or up to $72,000 in aggregate,387 and ongoing costs associated with this condition of approximately $3,528 per registered entity,388 or up to $84,672 in 382 The per entity ongoing costs associated with Exchange Act Rule 18a–5 (assuming that the registered security-based swap dealer has a prudential regulator) = 325 hours × $64/hour national hourly rate for a compliance clerk = $20,800 (See Recordkeeping Proposing Release, 79 FR at 25262 for burden hours). See note 373, supra, for a derivation of the national hourly rate for a compliance clerk. The per entity ongoing costs associated with Exchange Act Rule 18a–6 (assuming that the registered security-based swap dealer has a prudential regulator) = 230 hours × $64/hour national hourly rate for a compliance clerk + per entity external costs of $5,000 = $19,720. (See Recordkeeping Proposing Release, 79 FR at 25265 for burden hours and external costs). The per entity ongoing costs associated with Exchange Act Rules 18a–5 and 18a–6 = $20,800 + 19,720 = $40,520, and adjusted by 1.06 CPI inflation between 2014 and 2018 (from the Bureau of Labor Statistics) to $42,951.20 in current dollars or approximately $42,952. 383 Aggregate ongoing costs = Per entity ongoing costs of $42,952 × 24 entities = $1,030,848. 384 See note 370, supra. 385 See part VIII.A.4.e, infra. 386 Per entity initial costs = 10 hours × $283/hour national hourly rate for a compliance manager = $2,830. See note 371, supra, for a derivation of the national hourly rate for a compliance manager. Adjusting for CPI inflation using data from the Bureau of Labor Statistics between 2014 and 2018, the per entity initial costs in current dollars = $2,830 × 1.06 = $2,999.80 or approximately $3,000. 387 Aggregate initial costs = Per entity initial costs of $3,000 × 24 entities = $72,000. 388 Per entity ongoing costs = 1 hour × 52 weeks × $64/hour national hourly rate for a compliance E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 aggregate.389 For non-U.S. entities, the Commission estimates the initial costs associated with this condition to be approximately $3,000 per non-U.S. entity,390 or up to $72,000 in aggregate,391 and ongoing costs associated with this condition of approximately $7,056 per non-U.S. entity,392 or up to $169,344 in aggregate.393 The registered security-based swap dealer also would be responsible for obtaining from the non-U.S. person relying on this exception written consent to service of process for any civil action brought by or proceeding before the Commission, providing that process may be served on the non-U.S. person by service on the registered entity in the manner set forth in the registered entity’s current Form SBSE, SBSE–A, or SBSE–BD, as applicable.394 The Commission preliminarily believes that both the registered entity and its non-U.S. affiliate will incur one-time costs to comply with this condition.395 For registered entities, the Commission estimates the one-time costs associated with this condition to be approximately $409 per registered entity,396 or up to $9,816 in aggregate.397 For non-U.S. entities, the Commission estimates the one-time costs associated with this condition to be approximately $409 per non-U.S. entity,398 or up to $9,816 in clerk= $3,328. See note 373, supra, for a derivation of the national hourly rate for a compliance clerk. Adjusting for CPI inflation using data from the Bureau of Labor Statistics between 2014 and 2018, the per entity initial costs in current dollars = $3,328 × 1.06 = $3,527.68 or approximately $3,528. 389 Aggregate ongoing costs = Per entity ongoing costs of $3,528 × 24 entities = $84,672. 390 Per entity initial costs in current dollars = 10 hours × $283/hour national hourly rate for a compliance manager × 1.06 CPI inflation adjustment = $2,999.80 or approximately $3,000. See note 386, supra. 391 Aggregate initial costs = Per entity initial costs of $3,000 × 24 entities = $72,000. 392 Per entity ongoing costs in current dollars = 2 hours × 52 weeks × $64/hour national hourly rate for a compliance clerk × 1.06 CPI inflation adjustment = $7,055.36 or approximately $7,056. See note 388, supra. 393 Aggregate ongoing costs = Per entity ongoing costs of $7,056 × 24 entities = $169,344. 394 See proposed paragraph (d)(1)(iii)(B)(3) of Rule 3a71–3. 395 See part VIII.A.2.f, infra. The Commission assumes that the burden will be allocated equally between the registered entity and the non-U.S. affiliate. 396 Per entity initial costs = 1 hour × $409/hour for national hourly rate for an attorney = $409. The hourly cost figure is based upon data from SIFMA’s Management & Professional Earnings in the Securities Industry 2013 (modified by the Commission staff to adjust for inflation and to account for an 1,800-hour work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead). 397 Aggregate initial costs = Per entity initial costs of $409 × 24 entities = $9,816. 398 See note 396, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 aggregate.399 To the extent both parties agree to use an industry-standard consent provision,400 these costs may be limited. Under Alternative 2, if a non-U.S. person, or its affiliated group, seeks to utilize the exception, that person, or its affiliated group, may incur the cost of registering one entity as a broker-dealer (if there otherwise is not an affiliated broker-dealer present) or as a securitybased swap dealer. Because the conditions for using a security-based swap dealer to utilize the exception under Alternative 1 are identical to the conditions under Alternative 2, nonU.S. persons who avail themselves of the proposed exception by registering a security-based swap dealer under Alternative 2 would incur the same costs described above for registering a security-based swap dealer under Alternative 1. Alternatively, a non-U.S. person could choose to use the exception permitted under Alternative 2 by using a registered broker-dealer to conduct U.S. activity. A non-U.S. person choosing this option could incur initial and ongoing costs associated with registering an affiliate as a broker-dealer. The Commission preliminarily estimates the costs of registering a new broker-dealer to be approximately $291,500,401 and estimate ongoing costs of meeting registration requirements as a broker-dealer to be approximately $53,000 402 per year. Based on the Commission’s estimate that up to 24 403 persons might avail themselves of the proposed exception and assuming that these persons choose to do so by using 399 See note 397 supra. part VIII.A.2.f, infra. 401 The Commission previously estimated that an entity would incur costs of $275,000 to register as a broker-dealer and become a member of a national securities association. See Crowdfunding, Exchange Act Release No. 76324 (October 30, 2015), 80 FR 71388 (November 16, 2015) (‘‘Regulation Crowdfunding Adopting Release’’), 80 FR at 71509. Accounting for CPI inflation between 2015 and 2018, the Commission now estimates that an entity would incur costs of $275,000 × 1.06 = $291,500 to register as a broker-dealer and become a member of a national securities association. 402 The Commission previously estimated that an entity would incur ongoing annual costs of $50,000 to maintain broker-dealer registration and membership of a national securities association. See Regulation Crowdfunding Adopting Release, 80 FR at 71509. Accounting for CPI inflation between 2015 and 2018, the Commission now estimates that an entity would incur ongoing annual costs of $50,000 × 1.06 = $53,000 to maintain broker-dealer registration and membership of a national securities association. The estimation of ongoing annual costs is based on the assumption that the entity would use existing staff to perform the functions of the registered broker-dealer and would not incur incremental costs to hire new staff. To the extent that the entity chooses to hire new staff, the ongoing annual costs may be higher. 403 See part VII.A.7, supra. 400 See PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 24259 registered broker-dealers permitted under Alternative 2, the Commission preliminarily estimates the aggregate costs of broker-dealer registration to be approximately $7 million 404 and the aggregate ongoing costs of meeting broker-dealer registration requirements to be approximately $1.272 million 405 per year. Non-U.S. persons meeting the conditions of the proposed exception under Alternative 2 by using a registered broker-dealer would additionally incur the cost of complying with applicable requirements associated with the registered broker-dealer status, including maintaining a minimum level of net capital. The Commission estimates the ongoing cost of this capital to be approximately $35,300 406 per entity. If the up to 24 persons that might use the proposed exception choose to do so by using registered broker-dealers permitted under Alternative 2, the estimated aggregate ongoing cost of capital is approximately $847,200.407 To the extent that this capital is held in liquid assets 408 that generate a positive return to the registered broker-dealer, that positive return would offset, at least in part, the ongoing cost of capital. All non-U.S. persons using the proposed exception under Alternative 2 would incur the cost of complying with security-based swap dealer requirements related to disclosures of risks, characteristics, incentives, and conflicts of interest, suitability, 404 Aggregate broker-dealer registration costs calculated as $291,500 × 24 entities = $6,996,000 or approximately $7,000,000. 405 Aggregate ongoing costs of meeting brokerdealer registration requirements calculated as = $53,000 × 24 entities = $1,272,000. 406 The Commission assumes that the registered entity must maintain a minimum of $250,000 in net capital. See Exchange Act Rule 15c3–1. The Commission preliminarily believes that the methodology for estimating the cost of capital of a registered security-based swap dealer under proposed Alternative 1 is also appropriate for estimating the cost of capital of a registered brokerdealer under proposed Alternative 2 (see note 362, supra). Using the historical return on equity for all U.S. banks, the Commission calculated the cost of capital as 11.26% × $250,000 = $28,150 or approximately $28,200. The Commission preliminarily believes that use of the historical return on equity for U.S. banks adequately captures the cost of capital because of the 12 persons that potentially may use the proposed exception, 8 are banks and 3 have bank affiliates. See part VII.A.7 supra. To the extent that this approach does not adequately capture the cost of capital of persons that are not banks or have no bank affiliates, the Commission supplements the estimation by also using the annual stock returns on financial stocks to calculate the cost of capital. With this second approach, the Commission calculated the cost of capital as 16.96% × $250,000 = $42,400. The final estimate of the cost of capital is the average of $28,200 and $42,400 = (28,200 + 42,400)/2 = $35,300. 407 Aggregate ongoing cost of capital calculated as $35,300 × 24 entities = $847,200. 408 See Exchange Act Rule 15c3–1. E:\FR\FM\24MYP2.SGM 24MYP2 24260 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 communications, trade acknowledgment and verification, and portfolio reconciliation; 409 and requirements related to providing the Commission access to books, records and testimony 410 quantified above in connection with Alternative 1, regardless of whether these persons meet the conditions of Alternative 2 using a registered broker-dealer or a registered security-based swap dealer. To the extent that a non-U.S. person has an existing, registered broker-dealer affiliate 411 and uses that affiliate to rely on the conditional exception under Alternative 2, the non-U.S. person would not incur costs associated with registering a broker-dealer and the incremental compliance cost would be limited to costs associated with complying with the restricted set of security-based swap dealer requirements as discussed above. Although costly, the Commission preliminarily believes that the conditions associated with the proposed exception afford appropriate counterparty protections under Title VII and the Commission has considered the benefits of these specific Rule provisions in prior Commission releases.412 In the context of the proposed exception, these conditions would benefit non-U.S. counterparties. Moreover, the registered entity that is a majority-owned affiliate of the non-U.S. person availing itself of the proposed exception under Alternative 1 or Alternative 2 would be required to disclose to non-U.S. counterparties, in connection with each transaction covered by the proposed exception, that the non-U.S. person is not registered with the Commission and that certain Exchange Act provisions or rules addressing the regulation of securitybased swaps do not apply in connection with the transaction. The Commission preliminarily believes that non-U.S. persons would incur an upfront cost of $713,160 and 2,400 hours 413 to develop 409 See Alternative 2 proposed paragraph (d)(1)(ii)(B) of Rule 3a71–3. 410 See Alternative 2 proposed paragraph (d)(1)(iii)(B) and (C) of Rule 3a71–3. 411 Analyses of 2017 TIW data indicate that of the six non-U.S. persons that potentially may use the proposed exception, four have majority-owned registered broker-dealer affiliates. See part VII.A.7, supra. 412 See Business Conduct Adopting Release, Trade Acknowledgement and Verification Adopting Release, Recordkeeping Proposing Release, and Risk Mitigation Proposing Release. 413 See part VIII.A.4.a and note 525, infra stating that each non-U.S. person would spend 100 hours and incur approximate costs of $29,715 to develop policies and procedures to help ensure that appropriate disclosures are provided. The aggregate upfront costs are = $29,715 × 24 entities = $713,160. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 appropriate disclosures, but that nonU.S. persons using the proposed exception would integrate these disclosures into existing trading systems so that the ongoing costs of delivering these disclosures would be insubstantial. Furthermore, disclosures are only required when the identity of the counterparty is known to the registered entity, so anonymous transactions would not be subject to this requirement.414 These required disclosures would benefit non-U.S. counterparties by informing them of the regulatory treatment of transactions under the proposed exception. To the extent that non-U.S. counterparties value elements of the Title VII regulatory framework that do not apply to transactions under the proposed exception, they may attempt to negotiate more favorable prices to compensate themselves for the additional risks they may perceive. Alternatively, non-U.S. counterparties that prefer transactions fully covered by the Commission’s security-based swap regulatory framework could search for a registered security-based swap dealer willing to transact with all Title VII protections in place. In connection with the proposal, a situation may arise where some jurisdictions are designated by order as listed jurisdictions before other jurisdictions, whether the designation is on the Commission’s own initiative or in response to applications. To the extent that some jurisdictions become listed jurisdictions earlier than other jurisdictions, non-U.S. persons operating in jurisdictions that become listed jurisdictions earlier than other jurisdictions potentially could rely on the conditional exception sooner than, and may gain a competitive advantage over, non-U.S. persons operating in jurisdictions that become listed jurisdictions at a later date. In particular, non-U.S. persons operating in jurisdictions that become listed jurisdictions earlier than other jurisdictions and that rely on the exception may incur lower regulatory burdens 415 than non-U.S. persons The aggregate burden hours are = 100 × 24 entities = 2,400 hours. 414 See note 148, supra, for circumstances in which the registered entity engaged would not know the identity of the counterparty. 415 These non-U.S. persons may incur lower regulatory burdens to the extent that they avoid the costs of assessing market-facing activity and the costs of compliance with conditions set forth under the proposed exception are lower than the compliance costs in the absence of the proposed amendment and the costs of business restructuring. In contrast, non-U.S. persons in unlisted jurisdictions may have to incur the costs of assessing market-facing activity. Further, for these PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 operating in jurisdictions that become listed jurisdictions at a later date. That said, this cost advantage may be limited if non-U.S. persons operating in jurisdictions that currently are not listed jurisdictions could set up operations in a listed jurisdiction to rely on the exception. An application for listed jurisdiction designation would be filed pursuant to Rule 0–13 and, like the proposed exception, is purely voluntary. Thus, the Commission expects that, to the extent that market participants submit applications for designation of one or more listed jurisdictions, non-U.S. persons would do so only to the extent that they believe that compliance with each relevant jurisdiction’s regulatory regime, in combination with the other conditions of the proposed exception, was less burdensome than the alternatives of (i) incurring assessment costs related to de minimis calculations and potential compliance with the Title VII regulatory framework for dealers, and (ii) restructuring their securitybased swap businesses to avoid arranging, negotiating, or executing transactions with non-U.S. counterparties using personnel located in the United States. The Commission estimates that three non-U.S. persons that seek to rely on the exception would file listed jurisdiction applications.416 The Commission estimates the costs associated with each application to be approximately $115,920, or up to $347,760 in aggregate.417 The Commission notes that any costs incurred by a non-U.S. person in filing an application for a listed jurisdiction may be obviated in part by the provision that permits a foreign financial regulatory authority or authorities supervising such a non-U.S. person or its security-based swap activities to file such an application. Further, to the extent that certain jurisdictions are designated as listed jurisdictions if this non-U.S. persons, the costs of complying with the full set of security-based swap dealer requirements and business restructuring may be higher than compliance costs associated with the proposed exception. 416 See part VIII.A.4.g, infra. 417 The Commission assumes that the costs associated with filing an application for a qualified jurisdiction designation are the same as the costs associated with filing a substituted compliance request with respect to business conduct requirements. See Business Conduct Adopting Release, 81 FR at 30097 and 30137 and part VIII.A.4.g, infra. The Commission estimates the per entity costs of filing an application in 2016 dollars as: $30,400 (internal counsel) + $80,000 (external counsel) = $110,400. Adjusted for CPI inflation from 2016 to 2018, the per entity costs of filing an application in current dollars are = $110,400 × 1.05 = $115,920. The aggregate costs of filing applications = Per entity costs of $115,920 × 3 entities = $347,760. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules proposed amendment is adopted, the non-U.S. persons (or their financial regulatory authorities) in these jurisdictions may avoid the costs of filing an application. khammond on DSKBBV9HB2PROD with PROPOSALS2 b. Title VII Programmatic Costs and Benefits The proposed exclusion of transactions that must be counted against the de minimis threshold will affect the set of registered security-based swap dealers subject to security-based swap dealer regulation and in turn determine the allocation and flow of programmatic costs and benefits arising from such regulation. The Commission preliminarily believes that requiring a non-U.S. person that wishes to make use of the proposed exception to be subject to the margin and capital requirements of a listed jurisdiction when engaging in transactions subject to the proposed exception would support the Title VII regime’s programmatic benefit of mitigating risks in foreign securitybased swap markets that may flow into U.S. financial markets through liquidity spillovers.418 Specifically, proposed Rule 3a71–3(d)(1)(v) under both alternatives would require a non-U.S. person relying on the proposed exception to be subject to the margin and capital requirements of a listed jurisdiction when engaging in transactions subject to the proposed exception. As discussed earlier,419 the listed jurisdiction condition is intended to help avoid creating an incentive for dealers to book their transactions into entities that solely are subject to the regulation of jurisdictions that do not effectively require security-based swap dealers or comparable entities to meet certain financial responsibility standards. Absent this type of condition, non-U.S. persons that rely on the proposed exception could gain a competitive advantage because they would be able to conduct security-based swap dealing activity in the United States without being subject to even minimal financial responsibility standards and incurring the associated compliance costs. Such non-U.S. 418 As the Commission noted elsewhere, in a highly concentrated global security-based swap market, the failure of a key liquidity provider poses a particularly high risk of propagating liquidity shocks not only to its counterparties but to other participants, including other dealers. To the extent that U.S. persons are significant participants in the market, the liquidity shock may propagate to these U.S. persons, and from these U.S. persons to the U.S. financial system as a whole, even if the liquidity shock originates with the failure of a nonU.S. person liquidity provider. See ANE Adopting Release, 81 FR at 8611–12, 8630. 419 See III.B.5, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 persons potentially could provide liquidity to market participants at more favorable prices, but potentially also at greater risk, compared to registered security-based swap dealers. Generally, this proposed condition would benefit non-U.S. counterparties by providing them with assurances that the non-U.S. person has sufficient financial resources to engage in security-based swap activity and that the non-U.S. person’s risk exposures to other counterparties are appropriately managed, supporting the Title VII regime’s programmatic benefit of preventing risks in foreign security-based swap markets from flowing into U.S. financial markets through liquidity spillovers. The Commission preliminarily believes that another potential programmatic benefit of the proposed amendment is to reduce market fragmentation and associated distortions. In the ANE Adopting Release, the Commission noted that the ‘‘arranged, negotiated, or executed’’ counting requirement may cause nonU.S. dealers to restructure their operations to avoid using U.S. personnel in order to avoid triggering securitybased swap dealer obligations. Such restructuring may result in market fragmentation. Nevertheless, to the extent that the restructuring costs incurred by non-U.S. dealers offset the benefits from avoiding dealer registration, the likelihood or extent of market fragmentation and associated distortions may be attenuated, but not eliminated.420 The Commission believes that the proposed amendment, by permitting a non-U.S. person further flexibility to opt into a Title VII compliance framework that is compatible with its existing business practices, could further reduce the incentives of non-U.S. persons to restructure and further reduce the likelihood or extent of market fragmentation and associated distortions. The above discussion notwithstanding, the Commission is mindful that the likelihood of market fragmentation and associated distortions might increase if U.S.-based dealing entities rely on the conditional exception by booking transactions with non-U.S. counterparties into non-U.S. affiliates, thereby avoiding the application of the full set of securitybased swap dealer requirements to those transactions and the associated securitybased swaps.421 As discussed further below, U.S.-based dealing entities that use the conditional exception in this manner may incur lower compliance costs when providing liquidity to nonU.S. counterparties and may decide to limit their liquidity provision only to non-U.S. counterparties. To the extent that these U.S.-based dealing entities choose to provide liquidity only to nonU.S. counterparties, security-based swap liquidity may fragment into two pools: One pool that caters to U.S. counterparties and another pool that caters to non-U.S. counterparties. The proposed amendment could promote competition in the securitybased swap market to the extent that competitive effects arise from differences between the full set of requirements for registered securitybased swap dealers (that otherwise would apply to the non-U.S. entity) and the conditions applicable to the registered U.S. entity under the proposed amendment. As discussed more fully below,422 a non-U.S. person dealer that uses the exception may become more competitive in the market for liquidity provision because (a) the non-U.S. person dealer may incur lower compliance costs when providing liquidity to non-U.S. counterparties and (b) non-U.S. counterparties may incur lower costs when transacting with the non-U.S. person dealer. The set of dealing entities that benefit from such competitive effects might expand to the extent that U.S.-based dealing entities that are primarily or wholly responsible for managing interactions with non-U.S. counterparties may rely on the conditional exception by booking transactions into non-U.S. affiliates.423 Nevertheless, this competitive effect may be attenuated by the condition that makes the exception available only to non-U.S. persons that are subject to the margin and capital requirements of a listed jurisdiction. The proposed amendment potentially could limit the programmatic benefits of Title VII regulation because the nonU.S. person taking advantage of the conditional exception would not be subject to the full suite of Title VII business conduct and financial responsibility requirements. This limitation of programmatic benefits might increase to the extent that U.S.based dealing entities that primarily or wholly are responsible for managing interactions with non-U.S. counterparties may rely on the conditional exception by booking transactions into non-U.S. affiliates.424 Because the non-U.S. person would not be subject to Title VII business conduct 422 See 420 See ANE Adopting Release, 81 FR at 8630. 421 See parts III.A and VII.A.7, supra. PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 24261 part VII.B.2, infra. part III.A, supra. 424 See id. 423 See E:\FR\FM\24MYP2.SGM 24MYP2 24262 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 requirements, the associated Title VII counterparty protections would not apply to the non-U.S. person’s communications with non-U.S. counterparties. The non-U.S. counterparties thus would not benefit from those protections in their dealings with the non-U.S. person relying on the exception, notwithstanding the U.S. arranging, negotiating, and executing activity that led to the transactions at issue.425 Similarly, Title VII financial responsibility requirements applicable to security-based swap dealers would not apply to the non-U.S. person, notwithstanding that the transactions would result from arranging, negotiating, and executing activity in the United States. To the extent that the financial responsibility requirements serve to prevent the spread to U.S. financial markets of financial contagion that originates from the failure of one or more non-U.S. persons engaged in arranging, negotiating, and executing activity in the United States,426 the fact that these requirements would not apply to non-U.S. persons taking advantage of the conditional exception could limit the ability of the Title VII regulatory regime to protect U.S. financial markets from financial contagion. This concern would be mitigated by the condition that makes the exception available only to non-U.S. persons that are subject to the margin and capital requirements of a listed jurisdiction, which would afford the Commission flexibility to designate jurisdictions with appropriately robust financial responsibility requirements as listed jurisdictions. More generally, competitive disparities and limits to the programmatic effects of Title VII may be offset to the extent that non-U.S. counterparties value the protections afforded them by Title VII regulation and prefer to transact with dealing entities that are subject to the full scope of Title VII regulation, rather than with non-U.S. persons that rely on the conditional exception. 2. Effects on Efficiency, Competition, and Capital Formation As discussed earlier, the proposed amendment could reduce the regulatory burden for non-U.S. persons that engage in security-based swap arranging, negotiating, and executing activity with non-U.S. counterparties using affiliated U.S.-based personnel because these nonU.S. persons could avail themselves of an additional, potentially lower-cost, 425 As discussed in part III.A, supra, the antifraud provisions of the federal securities laws and certain relevant Title VII requirements would continue to apply to the transactions. 426 See ANE Adopting Release, 81 FR at 8612. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 means of engaging in arranging, negotiating, and executing activity with non-U.S. counterparties.427 To the extent that the regulatory burden for such non-U.S. persons is reduced as a result of the proposed amendment, resources could be freed up for investing in profitable projects, which would promote investment efficiency and capital formation. In addition, a reduction in regulatory burden for such non-U.S. persons could allow these persons to operate their security-based swap dealing business more efficiently. To the extent that these non-U.S. persons carry out security-based swap dealing activity with counterparties around the world 428 and choose to pass on cost savings flowing from their improved efficiency in the form of lower prices for liquidity provision, counterparties around the world could benefit by being able to transact at lower costs. A reduction in regulatory burden associated with the proposed amendment could lower entry barriers into the security-based swap market and increase the number of non-U.S. person dealers that are willing to provide liquidity to non-U.S. counterparties using affiliated U.S.-based personnel. An increase in the number of such nonU.S. person dealers may increase competition for liquidity provision to non-U.S. counterparties, which could lower transaction costs for these counterparties and improve their ability to hedge economic exposures. To the extent that non-U.S. person dealers focus their market-making activities on non-U.S. counterparties and avoid U.S. counterparties, the competition for liquidity provision to U.S. counterparties may decline, which could increase transaction costs for U.S. counterparties and impair their ability to hedge their economic exposures or to incur economic exposures. In addition, to the extent that increased transaction costs reduce the expected profits from trading on new information, market participants may be less willing to transact in the security-based swap market in response to new information. Such reduced participation in the security-based swap market might impede the incorporation of new information into security-based swap prices, reducing the informational efficiency of these markets. The proposed amendment might generate certain competitive effects due to gaps between the full set of requirements for registered securitybased swap dealers and the conditions applicable to the registered entity of the 427 See 428 See PO 00000 part VII.B.1, supra. part VII.A.2.c, supra. Frm 00058 Fmt 4701 Sfmt 4702 non-U.S. person under the proposed amendment,429 though these effects will be tempered to the extent that the nonU.S. person dealer passes on compliance costs incurred by its U.S. registered entity to the non-U.S. counterparty. First, under proposed Rule 3a71–3(d)(1)(C), the exception would not be conditioned on the registered entity of the non-U.S. person dealer having to comply with requirements pertaining to ECP verification, daily mark disclosure, and ‘‘know your counterparty.’’ 430 Thus, to the extent that the non-U.S. person adheres only to the provisions specifically required by the conditions set forth under the proposed amendment, the non-U.S. person dealer could incur lower compliance costs in providing liquidity to non-U.S. counterparties than under current rules, relative to the baseline. In that case, the non-U.S. person dealer might be able to lower the price at which it offers liquidity to a non-U.S. counterparty. However, under both alternatives the non-U.S. person must have a U.S. affiliate that is registered with the Commission. The extent to which the non-U.S. person dealer may offer a more competitive price would depend in part on whether the non-U.S. person dealer will pass on compliance costs incurred by its U.S. registered entity to the nonU.S. counterparty in the form of a higher price for providing liquidity to the nonU.S. counterparty. To the extent that the non-U.S. person dealer offers liquidity to the non-U.S. counterparty at a price that fully recovers the compliance costs incurred by its U.S. registered entity, any price reduction that could be offered by the non-U.S. person dealer might be limited. Second, a non-U.S. counterparty may prefer to enter into a security-based swap transaction with a non-U.S.person dealer that takes advantage of the conditional exception, rather than a U.S. registered security-based swap dealer, not only because the non-U.S.-person dealer may offer more competitive prices, but also because the non-U.S. counterparty may itself avoid certain costs by transacting with a non-U.S. person dealer. For example, Title VII financial responsibility requirements applicable to security-based swap 429 As context, the use of the ‘‘arranged, negotiated, or executed’’ counting standard was intended in part to avoid allowing competitive disparities between registered security-based swap dealers and entities that otherwise could engage in security-based swap market-facing activity in the United States without having to register as securitybased swap dealers. See part I.A.2, supra. 430 See Business Conduct Adopting Release, part II.G. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules dealers would not apply to the non-U.S. person dealer under the proposed amendment, although the non-U.S. person dealer would be subject to the margin and capital requirements of a listed jurisdiction. To the extent that a non-U.S. counterparty has already established with the non-U.S. person dealer the necessary margin agreement that is compliant with the margin requirements of the listed jurisdiction, the non-U.S. counterparty could avoid the additional costs of negotiating and adhering to a new margin agreement that is compliant with the Commission’s Title VII margin requirements, if the non-U.S. counterparty transacts with the non-U.S. person dealer. These competitive effects may create an incentive for entities that carry out their security-based swap dealing business in a U.S.-person dealer with non-U.S. person counterparties to restructure a proportion of this business to be carried out in a non-U.S.-person dealer affiliate. khammond on DSKBBV9HB2PROD with PROPOSALS2 3. Additional Alternatives Considered In developing these proposed amendments, the Commission considered a number of additional alternatives. This section outlines these alternatives and discusses the potential economic effects of each. a. Requiring the Registered Entity To Comply With ECP Verification and ‘‘Know Your Counterparty’’ When identifying the security-based swap dealer requirements that are applicable to a registered entity for purposes of this rulemaking, the Commission considered requiring the registered entity to comply with ECP verification and ‘‘know your counterparty’’ requirements, along with other security-based swap dealer requirements, even if the registered entity is not a party to the resulting security-based swap. Although this alternative would lead to greater conformity with the full set of securitybased swap dealer requirements, the provisions in question may require knowledge that may not be readily available to the registered entity when it engages in limited arranging, negotiating, and executing activity in connection with the security-based swaps addressed by the proposed exception. These operational difficulties may prevent the registered entity from complying with the provisions or may require the registered entity to incur costs to ensure compliance. The Commission estimates that, if included as part of the conditions of the exception, the ECP verification and know your counterparty requirements VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 would impose initial costs of approximately $2,919 per registered entity,431 or $70,056 in aggregate,432 and ongoing costs of approximately $91,770 per registered entity,433 or $2,202,480 in aggregate.434 Further, the non-U.S. counterparties transacting with the nonU.S. persons making use of the proposed exception that are not also participating in swap markets and relying on industry established verification of status protocol may incur initial costs associated with the verification of status requirement and related adherence letters.435 The Commission estimates these aggregate initial costs at approximately $460,152.436 All non-U.S. counterparties (or their agents) transacting with the non-U.S. persons making use of the proposed exception would also be required to collect and provide essential facts to the registered entities to comply with the ‘‘know your counterparty’’ obligations for an aggregate initial cost of approximately $6,439,860.437 To the 431 These estimates incorporate quantifiable initial costs presented in the Business Conduct Adopting Release, 81 FR at 30090–30092, 30110 adjusted for CPI inflation using data from the Bureau of Labor Statistics between 2016 and 2018. Specifically, per entity initial costs are estimated in 2016 dollars as $880 (ECP verification) + $1,900 (know your counterparty) = $2,780, and adjusted by 1.05 to $2,919 in current dollars. 432 Aggregate initial costs = Per entity initial costs of $2,919 × 24 entities = $70,056. 433 These estimates incorporate quantifiable initial costs presented in the Business Conduct Adopting Release, 81 FR at 30090–30092, 30110 adjusted for CPI inflation using data from the Bureau of Labor Statistics between 2016 and 2018. Specifically, per entity ongoing costs are estimated in 2016 dollars as $87,400, and adjusted by 1.05 to $91,770 in current dollars. 434 Aggregate initial costs = Per entity initial costs of $91,770 × 24 entities = $2,202,480. 435 In the Business Conduct Adopting Release, the Commission assumed that counterparties that are swap market participants likely already adhere to the relevant protocol and would not have any startup or ongoing burdens with respect to verification. See 81 FR at 30091. The Commission continues to believe that this assumption is valid and thus, for purposes of this alternative, the Commission believes that only non-U.S. counterparties that are not swap market participants will incur verification-related costs. As discussed in part VII.A.7 supra, the Commission preliminarily estimates that up to 24 persons likely may use the proposed exception, and that their registered entity affiliates may arrange, negotiate, or execute transactions with up to 1,614 non-U.S. counterparties, of which 498 do not participate in swap markets. 436 This estimate incorporates quantifiable initial costs presented in the Business Conduct Adopting Release, 81 FR at 30090–30092, 30110 adjusted for CPI inflation using data from the Bureau of Labor Statistics between 2016 and 2018. Per counterparty initial costs are estimated in 2016 dollars as $500 (initial costs of disclosure of essential facts) + $380 (initial costs of adherence letters) = $880, and adjusted by 1.05 to $924 in current dollars. Aggregate initial costs = Per entity initial costs of $924 × 498 counterparties = $460,152. 437 This estimate incorporates quantifiable initial costs presented in the Business Conduct Adopting PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 24263 extent that the knowledge needed to comply with these requirements may not be readily available to the registered entity and the registered entity has to expend additional resources to obtain that knowledge, the actual costs incurred by the registered entity to comply with these requirements may be higher. The Commission acknowledges that a non-U.S. person making use of the proposed exception potentially could mitigate the compliance costs of the registered entity by transacting only with non-U.S. counterparties that are known ECPs to the registered entity. By doing so, the registered entity could avoid expending additional resources to learn about the non-U.S. counterparties’ ECP status. However, as a result of this approach, the non-U.S. person may have to forgo transacting with new non-U.S. counterparties whose ECP status is not known to the registered entity. The nonU.S. person would thus have to balance the cost savings associated with transacting only with a set of known non-U.S. counterparties against the revenues that may be forgone by not transacting with new non-U.S. counterparties whose ECP status is unknown to the registered entity. As another alternative, the Commission considered requiring compliance with the ECP verification and ‘‘know your counterparty’’ requirements with a one-time carve out when the non-U.S. counterparty is unknown to the registered entity and there is no basis to believe that the registered entity would have further interactions with that non-U.S. counterparty. Although such a carve out may reduce compliance costs by excluding transactions that likely would pose the greatest operational difficulties in terms of obtaining knowledge needed for complying with the ECP verification and know your counterparty requirements, the Commission is also cognizant that the carve out may create new costs associated with assessing when the carve out would apply. The Commission is concerned that these new assessment costs may impose an additional burden on the registered entity and may offset any reduction in compliance costs associated with a onetime carve out. As with the previous alternative, a non-U.S. person making use of the proposed exception potentially could mitigate the Release, 81 FR at 30090–30092, 30110 adjusted for CPI inflation using data from the Bureau of Labor Statistics between 2016 and 2018. Per counterparty initial costs are estimated in 2016 dollars as (Inhouse attorney at $380 per hour) × 10 hours = $3,800, and adjusted by 1.05 to $3,990 in current dollars. Aggregate initial costs = Per entity initial costs of $3,990 × 1,614 counterparties = $6,439,860. E:\FR\FM\24MYP2.SGM 24MYP2 24264 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 compliance costs of the registered entity by transacting only with non-U.S. counterparties that are ECPs known to the registered entity. As discussed above, the non-U.S. person would thus have to balance the cost savings associated with this approach against the revenues that may be forgone by not transacting with new non-U.S. counterparties whose ECP status is unknown to the registered entity. In light of these compliance challenges and the fact that the proposed amendment does include conditions designed to impose a minimum standard of conduct upon security-based swap dealers in connection with their transactionrelated activities, the Commission preliminarily believes that the proposed approach is preferable to these alternatives. b. Requiring the Registered Entity To Comply With Daily Mark Disclosure The Commission also considered requiring the registered entity to comply with daily mark disclosure, along with other security-based swap dealer requirements, even if the registered entity is not a party to the resulting security-based swap. Similar to the discussion of ECP verification and know your counterparty requirements above, this alternative would lead to greater conformity with the full set of securitybased swap dealer requirements, but may require knowledge that may not be readily available to the registered entity when it engages in limited arranging, negotiating, and executing activity in connection with the security-based swaps addressed by the proposed exception. Further, the daily mark disclosure is predicated on the existence of an ongoing relationship between the security-based swap dealer and the counterparty that may not be present in connection with the transactions at issue, and would be linked to risk management functions that are likely to be associated with the entity in which the resulting security-based swap position is located.438 These operational difficulties may prevent the registered entity from complying with the daily mark disclosure requirement or may require the registered entity to incur an unreasonably high cost to ensure compliance. In light of these compliance challenges and the fact that the proposed amendment does include conditions designed to impose a minimum standard of conduct upon security-based swap dealers in connection with their transactionrelated activities, the Commission 438 See part III.B.2.a, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 preliminarily believes that the proposed approach is preferable to this alternative. c. Requiring a Limited Disclosure of Incentives and Conflicts As an alternative to the disclosure requirements set forth under proposed Rule 3a71–3(d)(1)(ii)(B)(1), the Commission considered requiring the registered entity to disclose its own material incentives and conflicts of interest, but not requiring the registered entity to disclose the incentives and conflicts of interest of its non-U.S. affiliate. While this alternative might help to mitigate the costs associated with disclosing the incentives and conflicts of interest of the non-U.S. affiliate,439 the benefits associated with such disclosures 440 may also decrease because non-U.S. counterparties would not know about the incentives and conflicts of interest of the non-U.S. affiliate prior to entering into securitybased swaps with the non-U.S. affiliate. In light of this concern, the Commission preliminarily believes that the proposed approach is preferable to this alternative. d. Requiring the Non-U.S. Person To Be Domiciled in a G–20 Jurisdiction or in a Jurisdiction Where the Non-U.S. Person Would Be Subject to Basel Capital Requirements As alternatives to proposed paragraph (d)(1)(v), the Commission considered proposing a requirement that the nonU.S. person be domiciled in a G–20 jurisdiction or in a jurisdiction where the non-U.S. person would be subject to Basel capital requirements as commenters have suggested. While the Commission acknowledges that these alternatives are clearly defined and would provide certainty to market participants, the Commission preliminarily believes these alternatives potentially could create opportunities for regulatory arbitrage whereby a nonU.S. person may relocate its operations to a jurisdiction that imposes lower financial responsibility standards. The non-U.S. person may thus enjoy a cost advantage relative to other dealers that operate under higher regulatory burdens, while not being subject to equally rigorous financial responsibility standards. Further, as discussed earlier,441 the fact that a jurisdiction is a member of the G–20 or subscribes to Basel standards does not by itself provide assurance that the jurisdiction 439 See Business Conduct Adopting Release, 81 FR at 30112. 440 See Business Conduct Adopting Release, 81 FR at 30111–12. 441 See part III.B.5, supra. PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 has implemented appropriate financial responsibility standards. e. Not Requiring Notification to Counterparties of the Non-U.S. Person In proposing the conditions that would apply to the non-U.S. person under Alternative 1 and Alternative 2, the Commission considered omitting the condition that non-U.S. counterparties of the non-U.S. person relying on the exception be notified contemporaneously by the registered entity that the non-U.S. person is not registered as a security-based swap dealer, and that certain Exchange Act provisions or rules addressing the regulation of security-based swaps would not be applicable in connection with the transaction. The omission of this notification condition may reduce cost and thus regulatory burden for the non-U.S. persons that rely on the exception. However, the absence of this notification condition potentially could reinforce the competitive disparity between the non-U.S. persons that make use of the exception and registered security-based swap dealers that comply with the full set of Title VII securitybased swap dealer requirements. As discussed above,442 non-U.S. persons that avail themselves of the exception could bear lower costs compared to registered security-based swap dealers that have to comply with the full set of security-based swap dealer requirements. To the extent that non-U.S. counterparties prefer to trade with dealers that are subject to the full set of Title VII security-based swap dealer requirements and the associated safeguards, in the absence of the notification condition, non-U.S. persons that rely on the exception could bear lower regulatory costs than registered security-based swap dealers but may nevertheless be regarded by non-U.S. counterparties to be no different than registered security-based swap dealers, at least with respect to Title VII safeguards. As a result, these non-U.S. persons potentially could capture the business of non-U.S. counterparties from registered security-based swap dealers that they otherwise might not have captured if the notification condition had been part of the exception. In light of this concern, the Commission preliminarily believes that requiring such notification to non-U.S. counterparties is preferable to this alternative. 442 See E:\FR\FM\24MYP2.SGM part VII.B.2, supra. 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules f. ‘‘No Management of Relationship’’ Condition When identifying the conditions of the proposed exception, the Commission considered making the exception unavailable where U.S. personnel manage the relationship with the non-U.S. counterparty to the security-based swap. Such a condition might help address concerns that U.S.based dealers could use the proposed exception to rebook transactions, which are managed by U.S. personnel, to a non-U.S. affiliate to avoid triggering security-based swap dealer registration. However, the Commission recognizes that there may be challenges in articulating objective criteria to identify when the proposed exception would or would not be available under this type of approach. Even if objective criteria could be articulated, non-U.S. persons seeking to use the proposed exception may have to incur costs to satisfy these criteria on an ongoing basis. In light of these concerns, the Commission preliminarily believes that the proposed approach is preferable to this alternative. khammond on DSKBBV9HB2PROD with PROPOSALS2 g. Rule 10b–10 in Lieu of Trade Acknowledgement and Verification Requirement In specifying the requirements that are applicable to the registered entity under Alternative 2, the Commission considered requiring the registered entity to comply with Rule 10b–10 in lieu of the security-based swap dealer trade acknowledgement and verification requirement (Rules 15Fi–1 and 15Fi–2), if the registered entity is a registered broker-dealer that is not also a securitybased swap dealer. As discussed earlier,443 if a non-U.S. person chooses to use a registered broker-dealer under Alternative 2, the non-U.S. person could incur costs associated with the registered broker status, including the cost of complying with Rule 10b–10. Additionally, the non-U.S. person would incur the cost of complying with certain security-based swap dealer requirements, including the trade acknowledgement and verification requirement. The alternative approach could reduce the regulatory burden on the non-U.S. person by obviating the need for its registered broker-dealer affiliate to comply with the trade acknowledgement and verification requirement. However, the Commission preliminarily believes that compliance with the trade acknowledgement and verification requirement may better support the regulation of the security443 See part VII.B.1, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 based swap market. First, the Rule 15Fi–2 requirement that a trade acknowledgement ‘‘must disclose all of the terms of the security-based swap transaction’’ 444 is tailored to the security-based swap market and is more likely to effectively communicate the relevant terms of the transaction to the counterparty. A more effective communication of transaction terms could facilitate timely and accurate confirmations and in turn reduce the likelihood of a confirmation backlog and associated market, credit, settlement, and financial stability risks.445 Second, while Rule 10b–10 requires only the registered broker-dealer to provide a trade confirmation to a customer, Rule 15Fi–2 requires a security-based swap dealer or major security-based swap participant to provide a trade acknowledgement to, as well as obtain a verification of that acknowledgement from, the counterparty. As discussed elsewhere,446 unlike most other securities transactions, a security-based swap gives rise to ongoing obligations between transaction counterparties during the life of the transaction, including payments contingent on specific events, such as a corporate default. Consequently, the acknowledgement and verification of the terms of a security-based swap transaction help ensure that securitybased swap market participants effectively measure and manage market and credit risk. Third, the trade acknowledgement and verification requirement would better promote a uniform regulatory framework for security-based swap transactions because the requirement would apply to all security-based swap transactions that are arranged, negotiated, or executed in the United States. In light of the foregoing, the Commission preliminarily believes that the proposed approach is preferable to this alternative. C. Proposed Guidance Regarding the Scope of the ‘‘Arranged, Negotiated, or Executed’’ Test As discussed in part II supra, the Commission is proposing guidance regarding the scope of the ‘‘arranged, negotiated, or executed’’ test. This guidance could have economic effects to the extent that, in the absence of such guidance, some market participants may have understood the scope of the test differently. As discussed in part VII.A.8 above, the Commission preliminarily believes Exchange Act Rule 15Fi–2(c). Trade Acknowledgement and Verification Adopting Release part VII.C. 446 See id., 81 FR at 39833. 24265 that up to 49 non-U.S. persons could be affected by the proposed guidance. To the extent that some of these non-U.S. persons currently understand the scope of the ‘‘arranged, negotiated, or executed’’ test to be different from the scope of the test set forth in the proposed guidance, there might be certain potential economic effects associated with (1) counting toward the de minimis threshold for security-based dealer registration,447 (2) cross-border application of security-based swap dealer business conduct provisions, and (3) cross-border application of Regulation SBSR’s regulatory reporting and public dissemination provisions. The Commission discusses these potential economic effects below. Under rules adopted in the CrossBorder Adopting Release, a non-U.S. person is permitted to exclude from the de minimis analysis certain dealing transactions conducted through a foreign branch of a counterparty that is a U.S. bank. For this exclusion to be effective, persons located within the United States cannot be involved in arranging, negotiating, or executing the transaction. Moreover, the counterparty U.S. bank must be registered as a security-based swap dealer,448 unless the transaction occurs prior to 60 days following the effective date of final rules providing for the registration of security-based swap dealers.449 Under rules adopted in the ANE Adopting Release, a non-U.S. person has to count toward its de minimis threshold, transactions with a non-U.S. counterparty that are arranged, negotiated, or executed by U.S. personnel. The Commission preliminarily believes that the proposed guidance might have certain economic effects in connection with the application of the ‘‘arranged, negotiated, or executed’’ test to the de minimis threshold. First, the proposed guidance may cause a change in behavior of those nonU.S. persons, if any, who currently interpret the scope of the ‘‘arranged, negotiated, or executed’’ test to be different from the proposed guidance. To the extent that the proposed guidance reduces the likelihood of nonU.S. persons mistakenly believing they have exceeded the de minimis threshold, it would potentially eliminate costs that non-U.S. persons may otherwise incur related to securitybased swap dealer registration and compliance. Specifically, the proposed guidance potentially could reduce the 444 See 445 See PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 447 See note 90, supra. Exchange Act Rule 3a71–3(b)(1)(iii)(A)(1). 449 See Exchange Act Rule 3a71–3(b)(1)(iii)(A)(2). 448 See E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24266 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules compliance burden of those non-U.S. persons that employ U.S. personnel to provide market color to non-U.S. counterparties or foreign branches of U.S. persons, and understood the provision of market color to fall within the scope of the ‘‘arranged, negotiated, or executed’’ test. In the absence of the proposed guidance, such a non-U.S. person could incur the cost of registering as a security-based swap dealer if it counts transactions involving the provision of market color by U.S. personnel toward the de minimis threshold, and as a consequence of this treatment, its market-facing activity exceeds the de minimis threshold. The non-U.S. person accordingly would incur the cost necessary for compliance with the full set of security-based swap dealer requirements by one or more registered security-based swap dealers. These burdens are in addition to the assessment costs that the non-U.S. person would incur to identify and count relevant market-facing activity toward the de minimis threshold. To the extent that the proposed guidance reduces the likelihood of restructuring due to perceived regulatory burdens, it would potentially eliminate costs that non-U.S. persons may otherwise incur. In the absence of the proposed guidance, non-U.S. persons that employ U.S. personnel to provide market color to non-U.S. counterparties or foreign branches of U.S. persons, and understand the provision of market color to fall within the scope of the ‘‘arranged, negotiated, or executed’’ test, may choose to avoid security-based swap dealer registration by relocating those U.S. personnel (or the activities performed by those U.S. personnel) to locations outside the United States or by restructuring operations to use non-U.S. personnel to provide market color to non-U.S. counterparties or foreign branches of U.S. persons. These forms of restructuring would impose costs on these non-U.S. persons associated with moving personnel outside the United States or forgoing the market knowledge and expertise of the U.S. personnel that provide market color. The proposed guidance, by clarifying that transactions involving the provision of market color by U.S. personnel would not fall within the scope of the arranged, negotiated, or executed counting test, may obviate the need for these forms of restructuring and potentially limit the associated costs for these non-U.S. persons. The proposed guidance may affect the approach to assessment chosen by different market participants. In the ANE Adopting Release, the Commission noted that non-U.S. persons likely VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 would consider three possible approaches to determine which transactions must be counted toward the de minimis threshold.450 The Commission also discussed potential costs associated with each approach. The proposed guidance might affect such assessment costs to the extent that non-U.S. persons that employ U.S. personnel to provide market color to non-U.S. counterparties would have, in the absence of the proposed guidance, interpreted the provision of market color to fall within the scope of the ‘‘arranged, negotiated, or executed’’ test, and further to the extent that such persons would change their approach to assessment in light of the proposed guidance. The Commission preliminarily believes that a non-U.S. person may choose to make such a change if the associated benefits outweigh the associated costs. In light of the proposed guidance, a non-U.S. person who has opted to perform assessments on a pertransaction basis 451 may modify its information system 452 to track transactions involving only the provision of market color by U.S. personnel, if the system does not already possess this capability. The potential benefit of such modifications would be to allow the non-U.S. person to avoid security-based swap dealer registration and the associated regulatory burdens by excluding transactions involving only the provision of market color by U.S. personnel from being counted toward the de minimis threshold. These costs likely would not be incurred to the extent that the non-U.S. person already employs an information system that can track transactions involving only the provision of market color by U.S. personnel. Instead of performing assessments on a per-transaction basis, a non-U.S. 450 See ANE Adopting Release, 81 FR at 8627–28. id. at 8627. 452 In the ANE Adopting Release, the Commission estimated the costs associated with developing and modifying information technology systems to track the location of persons with dealing activity. The Commission preliminarily believes that this approach also would be appropriate for estimating the costs incurred by the non-U.S. person to modify its information system in light of the proposed guidance. The Commission estimates that the average non-U.S. person will incur start-up costs of $410,000 to modify its information system to track transactions involving only the provision of market color by U.S. personnel. Further, the Commission preliminarily believes that non-U.S. persons would incur the cost of $6,500 per location per year on an ongoing basis for training, compliance, and verification costs (calculated as Internal Cost, 90 hours × $50 per hour = $4,500 plus Consulting Costs, 10 hours × $200 per hour = $2,000, for a total cost of $6,500). See ANE Adopting Release, 81 FR at 8627. 451 See PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 person might: (1) Restrict its U.S. personnel from arranging, negotiating, or executing security-based swaps with non-U.S. counterparties,453 or (2) count transactions with other non-U.S. persons toward its de minimis threshold, regardless of whether counting them is required, to avoid the cost of assessing the locations of personnel involved with each transaction.454 In light of the proposed guidance, a non-U.S. person that intends to take either approach likely would continue to use such approach to the extent that the costs associated with assessments on a per-transaction basis outweigh any potential cost savings from excluding transactions involving only the provision of market color by U.S. personnel from the de minimis threshold, and consequently avoiding having to register as a security-based swap dealer. Under rules adopted in the Business Conduct Adopting Release, a non-U.S. security-based swap dealer has to comply with transaction-level business conduct requirements for transactions between the non-U.S. security-based swap dealer and non-U.S. counterparties that are arranged, negotiated, or executed by personnel of the non-U.S. security-based swap dealer located in a U.S. branch or office, or by personnel of its agent located in a U.S. branch or office.455 To the extent that the proposed guidance reduces the likelihood of nonU.S. security-based swap dealers mistakenly believing they will enter into security-based swaps that fall within the scope of the ‘‘arranged, negotiated, or executed’’ test in connection with transaction-level business conduct requirements, it would potentially eliminate costs that non-U.S. securitybased swap dealers may otherwise incur. Specifically, the proposed guidance potentially could reduce the compliance burden of those non-U.S. security-based swap dealers that employ U.S. personnel to provide market color to non-U.S. counterparties, and that previously understood the provision of market color to fall within the scope of the ‘‘arranged, negotiated, or executed’’ test. In the absence of the proposed guidance, such a non-U.S. securitybased swap dealer could incur the cost of complying with transaction-level business conduct requirements (e.g., disclosure of material risks and characteristics) if it considers 453 See ANE Adopting Release, 81 FR at 8627–28. ANE Adopting Release, 81 FR at 8628. 455 See Business Conduct Adopting Release, 81 FR at 30065; Exchange Act Rules 3a71–3(c) and 3a71–3(a)(8)(i). 454 See E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules transactions involving the provision of market color by U.S. personnel to fall within the scope of the test. These burdens are in addition to the assessment costs that the non-U.S. security-based swap dealers would incur to identify transactions that fall within the scope of the test.456 Under Regulation SBSR, a securitybased swap transaction between two non-U.S. persons that is arranged, negotiated, or executed using U.S. personnel may be subject to regulatory reporting and public dissemination. Rule 908(b)(2) of Regulation SBSR provides that a registered security-based swap dealer or major security-based swap participant will incur reporting obligations.457 This rule covers both U.S. and non-U.S. registered entities. Rule 908(b)(5) imposes reporting obligations on a non-U.S. person that, in connection with the person’s securitybased swap dealing activity, arranged, negotiated, or executed the securitybased swap using its personnel located in a U.S. branch or office, or using personnel of an agent located in a U.S. branch or office.458 Rule 908(a)(1)(v) 459 provides that a security-based swap transaction shall be subject to regulatory reporting and public dissemination if the transaction is arranged, negotiated, or executed by personnel of such nonU.S. person located in a U.S. branch or office, or by personnel of an agent of such non-U.S. person located in a U.S. branch or office. Rule 901(a)(2)(ii) assigns reporting duties for various types of uncleared security-based swap transactions including, but not limited to, transactions in which (a) one or both sides include a registered security-based swap dealer and (b) both sides include unregistered non-U.S. persons and at least one side includes a non-U.S. person that falls within Rule 908(b)(5). To the extent that the proposed guidance reduces the likelihood of nonU.S. persons (i.e., non-U.S. securitybased swap dealers and unregistered non-U.S. dealing entities) mistakenly believing they have entered into security-based swaps that fall within the scope of the ‘‘arranged, negotiated, or executed’’ test in connection with Regulation SBSR regulatory reporting requirements, it would potentially eliminate costs that non-U.S. persons may otherwise incur. Specifically, the proposed guidance potentially could reduce the compliance burden of those non-U.S. persons that employ U.S. 456 See Business Conduct Adopting Release, 81 FR at 30135. 457 See Exchange Act Rule 908(b)(2). 458 See Exchange Act Rule 908(b)(5). 459 See Exchange Act Rule 908(a)(1)(v). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 personnel to provide market color to non-U.S. counterparties and that previously understood the provision of market color to fall within the scope of the ‘‘arranged, negotiated, or executed’’ test. In the absence of the proposed guidance, such a non-U.S. person could incur the cost of complying with reporting requirements (e.g., reporting of an initial security-based swap transaction to a registered securitybased swap data repository) if it considers transactions involving the provision of market color by U.S. personnel to fall within the scope of the test. These burdens are in addition to the assessment costs that unregistered non-U.S. dealing entities would incur to identify transactions that fall within the scope of the test and to determine if they will incur reporting duties under Rule 901(a)(2)(ii)(E).460 The proposed guidance may affect the incentives of those non-U.S. persons, if any, who currently interpret the scope of the ‘‘arranged, negotiated, or executed’’ test to be different from the proposed guidance, to request substituted compliance determinations for business conduct requirements and regulatory reporting and public dissemination requirements.461 In the absence of the proposed guidance, a non-U.S. person could incur the cost of applying for a substituted compliance determination if it considers transactions involving the provision of market color by U.S. personnel to fall within the scope of the test and believes that the cost savings from complying with comparable foreign requirements for these transactions outweigh the costs of applying for a substituted compliance determination and complying with any conditions that the Commission may attach to the substituted compliance determination. To the extent that the proposed guidance reduces the likelihood of non-U.S. persons mistakenly believing that transactions involving the provision of market color by U.S. personnel fall within the scope of the test, it may reduce the incentive of non-U.S. persons to apply for substituted compliance determinations and the associated costs. As discussed above, the proposed guidance could reduce the regulatory burden (including substituted compliance application costs, if any) of those non-U.S. persons that employ U.S. personnel to provide market color to 460 See Regulation SBSR Amendments Adopting Release, 81 FR 156 at 53638. 461 See Exchange Act Rule 3a71–6(d) (addressing substituted compliance for business conduct requirements) and Regulation SBSR Rule 908(c) (addressing substituted compliance for regulatory reporting and public dissemination requirements). PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 24267 non-U.S. counterparties, and who would otherwise have interpreted the provision of market color to fall within the scope of the ‘‘arranged, negotiated, or executed’’ test. Additionally, the proposed guidance may obviate the need for restructuring and potentially limit the associated costs for such nonU.S. persons that employ U.S. personnel to provide market color to non-U.S. counterparties. To the extent that the regulatory cost burden and restructuring costs for such non-U.S. persons are reduced as a result of the proposed guidance, resources could be freed up for investing in profitable projects, which would promote investment efficiency and capital formation. The non-U.S. persons alternatively could pass on the reductions in regulatory cost burden and restructuring costs to their counterparties in the form of a lower price for liquidity provision (e.g., through posting narrower bid-ask spreads), thereby allowing the non-U.S. persons to compete more effectively in providing liquidity to market participants. Such actions in turn may increase competition in the market for liquidity provision if they prompt other liquidity providers to lower their prices for liquidity provision. D. Proposed Amendment to Rule of Practice 194(c)(2) Several key economic effects and tradeoffs inform the Commission’s analysis of proposed Rule of Practice 194(c)(2).462 First, as the Commission discussed in the Rule of Practice 194 Adopting Release,463 increasing the ability of statutorily disqualified persons to effect or be involved in effecting securitybased swaps on behalf of SBS Entities may give rise to higher compliance and counterparty risks, increase costs of adverse selection, decrease market participation, and reduce competition among higher quality associated persons and SBS Entities. Second, at the same time, the scope of conduct that gives rise to disqualification is broad and includes conduct that may not pose ongoing risks to counterparties.464 In addition, as 462 See Rule of Practice 194 Adopting Release, 84 FR at 4922–43. 463 See id. 464 As discussed in Section V.A. of the Rule of Practice 194 Adopting Release, the definition of disqualified persons, as applied in the statutory prohibition in Exchange Act Section 15F(b)(6), is broad. That definition disqualifies associated persons due to violations of the securities laws, but also for felonies and misdemeanors not related to the securities laws and/or financial markets, and certain foreign sanctions. See Rule of Practice 194 Adopting Release, 84 FR at 4922, 4929. E:\FR\FM\24MYP2.SGM 24MYP2 24268 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 discussed in the Rule of Practice 194 Adopting Release and in greater detail below, strong disqualification standards can also reduce competition and the volume of service provision. Third, public information about misconduct can give rise to capital market participants voting with their feet (reputational costs), and labor markets frequently penalize misconduct through firing or worse career outcomes in other settings, as discussed in the Rule of Practice 194 Adopting Release. If counterparties perceive the risks related to disqualified associated persons to be high, counterparties may choose to perform more in-depth due diligence related to their SBS Entity counterparties or to transact with SBS Entities without disqualified associated persons. Fourth, an overwhelming majority of dealers and most counterparties transact across both swap and security-based swap markets, including in financial products that are similar or identical in their payoff profiles and risks. Differential regulatory treatment of disqualification in swap and securitybased swap markets may disrupt existing counterparty relationships and may increase costs of intermediating transactions for some SBS Entities, which may be passed along to certain counterparties in the form of higher transaction costs. Fifth, as discussed in the Rule of Practice 194 Adopting Release, market participants may value bilateral relationships with SBS Entities, including with SBS Entities duallyregistered as Swap Entities, and searching for and initiating bilateral relationships with new SBS Entities may involve costs for counterparties. For example, security-based swaps are long-term contracts that are often renegotiated, and disruptions to existing counterparty relationships can reduce the potential future ability to modify a contract, which may be priced in widening spreads.465 1. Costs and Benefits of the Proposed Amendment Once compliance with SBS Entity registration rules is required, registered SBS Entities will be unable to utilize any statutorily disqualified associated natural person, including natural persons with potentially valuable capabilities, skills, or expertise, to effect or be involved in effecting securitybased swaps, absent exemptive relief, including an order under Rule of Practice 194. This restriction would 465 See Rule of Practice 194 Adopting Release, 84 FR at 4922. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 apply to all associated natural persons of all registered SBS Entities, with respect to all counterparties, and regardless of the nature of the conduct giving rise to disqualification. SBS Entities are, under the baseline regulatory regime, unable to rely on disqualified associated persons even if such persons are non-U.S. persons transacting exclusively with non-U.S. counterparties. However, absent the proposed Rule, SBS Entities would still be able to apply to the Commission for relief, and the Commission would still be able to grant relief, including under Rule of Practice 194. Under the proposed Rule, unless a limitation applies, SBS Entities will be able to allow disqualified associated persons that are not U.S. persons to effect or be involved in effecting security-based swap transactions with non-U.S. counterparties and foreign branches of U.S. counterparties. The Commission preliminarily believes that the proposed Rule involves three groups of benefits. First, SBS Entities may benefit from greater flexibility in hiring and managing non-U.S. employees transacting with foreign counterparties and foreign branches of U.S. counterparties. To the degree that such employees may have valuable skills, expertise, or counterparty relationships that are difficult to replace and outweigh the reputational and compliance costs of continued association, SBS Entities would be able to continue employing them without being required to apply for relief with the Commission. In addition, crossregistered SBS Entities would experience economies of scope in employing non-U.S. natural persons in their swap and security-based swap businesses. Specifically, SBS Entities will be able to rely on the same non-U.S. natural persons in transactions with the same counterparties across integrated swap and security-based swap markets. In addition, SBS Entities will no longer be required to apply for relief under Rule of Practice 194 with respect to nonU.S. persons transacting with foreign counterparties and foreign branches of U.S. counterparties.466 466 As discussed in the economic baseline, we preliminarily believe that the proposed exclusion may reduce the number of applications by between zero and two applications, resulting in potential cost savings of between zero and $24,540 (=2 × 30 hours × Attorney at $409 per hour). The hourly cost figure is based on data from SIFMA’s Management & Professional Earnings in the Securities Industry 2013 (modified by the Commission staff to adjust for inflation and to account for an 1,800-hour workyear and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead). See PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 Second, to the degree that SBS Entities currently pass along costs to counterparties in the form of, for example, higher transaction costs, the proposed amendment may benefit nonU.S. counterparties and foreign branches of U.S. counterparties through lower prices of available security-based swaps. In addition, such counterparties of SBS Entities would be able to continue transacting with the same nonU.S. associated persons of the same SBS Entities across interconnected markets without delays related to Commission review under Rule of Practice 194. The Commission notes that both the returns and the risks from security-based swap transactions by foreign branches of U.S. persons may flow to the U.S. business of U.S. persons, contributing to profits and losses of U.S. persons. Third, the proposed amendment may benefit disqualified non-U.S. natural persons seeking to engage in securitybased swap activity. Under the proposal, an SBS Entity would no longer be required to incur costs related to applying for exemptive relief under Rule of Practice 194 in order to allow a disqualified non-U.S. natural person to transact with foreign counterparties and foreign branches of U.S. counterparties. The proposal may reduce direct costs to SBS Entities of hiring and retaining disqualified non-U.S. employees. This may improve employment opportunities for disqualified non-U.S. natural persons in the security-based swap industry. However, research in other contexts points to large reputational costs from misconduct, and some papers show that employers may often fire and replace employees engaging in misconduct to manage these reputational costs, as discussed in the Rule of Practice 194 Adopting Release.467 The proposed Rule would result in SBS Entities being less constrained by the general statutory prohibition in their security-based swap activity with foreign counterparties and foreign branches of U.S. counterparties. The Commission continues to recognize that associating with statutorily disqualified natural persons effecting or involved in effecting security-based swaps on behalf of SBS Entities may give rise to counterparty and compliance risks. For example, as the Commission discussed elsewhere, in other settings, individuals engaged in misconduct are significantly more likely to engage in repeated Rule of Practice 194 Adopting Release, 84 FR at 4922. 467 See Rule of Practice 194 Adopting Release, 84 FR at 4932. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 misconduct.468 Data in the Rule of Practice 194 Adopting Release suggests that, in parallel disqualification review processes in swap and broker-dealer settings, the application rate is low, but there are incidences of repeated misconduct.469 The Commission also continues to recognize that statutory disqualification and an inability to continue associating with SBS Entities creates disincentives against underlying misconduct for associated persons and that there may be spillover effects on other associated persons within the same SBS Entity.470 Further, the Commission recognizes that, under the proposed amendment, the Commission would be unable to make an individualized determination about whether permitting a given non-U.S. associated natural person to effect or be involved in effecting security-based swaps on behalf of an SBS Entity is consistent with the public interest. The Commission also notes that the proposed amendment would allow SBS Entities to rely on disqualified non-U.S. personnel in their transactions with both foreign counterparties and foreign branches of U.S. counterparties. To the degree that statutory disqualification may increase risks to counterparties, to the degree that SBS Entities may choose to rely on disqualified foreign personnel despite reputational and compliance costs of association, and to the extent that such counterparties do not move their business to other personnel or SBS Entity, this may increase risks to foreign branches of U.S. counterparties. Depending on the consolidation and ownership structure of counterparties, some of the returns as well as losses in 468 For a more detailed discussion, see Rule of Practice 194 Adopting Release, 84 FR at 4932. 469 See Rule of Practice 194 Adopting Release, 84 FR at 4928. 470 For example, as discussed in the Rule of Practice Adopting Release, Dimmock, Gerken, and Graham (2018) examine customer complaints against FINRA-registered representatives in 1999 through 2011, and argue that misconduct of individuals influences the misconduct of their coworkers. Using mergers of firms as a quasiexogenous shock, the paper examines changes in an adviser’s misconduct around changes to an employee’s coworkers due to a merger. The paper estimates that an employee is 37% more likely to commit misconduct if her new coworkers encountered in the merger have a history of misconduct. The paper contributes to broader evidence on peer effects, connectedness, and commonality of misconduct, and can help explain the distributional properties in the prevalence of misconduct across firms documented in Egan, Matvos, and Seru (2017). See Stephen G. Dimmock, William C. Gerken, & Nathaniel P. Graham, ‘‘Is Fraud Contagious? Coworker Influence on Misconduct by Financial Advisors,’’ 73 J. Fin. 1417 (2018); see also Mark Egan, Gregor Matvos, & Amit Seru, ‘‘The Market for Financial Adviser Misconduct,’’ 127 J. Pol. Econ. 233 (2019), available at https://papers.ssrn.com/sol3/papers.cfm ?abstract_id=2739170. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 foreign branches may flow through to some U.S. parent firms. However, the proposed approach provides for identical treatment of foreign counterparties and foreign branches of U.S. counterparties, reducing potential competitive disparities between them in security-based swap markets. The Commission notes that, importantly, the proposed exclusion would more closely harmonize the Commission’s approach with the approach already being followed with respect to foreign personnel of Swap Entities. As such, the Commission’s assessment of the benefits and potential counterparty risks of the proposed relief discussed above is informed by experience and data with respect to CFTC/NFA statutory disqualification review in swap markets, including, among others: (i) The low incidence of statutory disqualification of associated persons; (ii) the majority of applications arising out of non-investment related conduct by associated persons; (iii) absence of additional statutory disqualification forms filed by swap dealers to request NFA determination with respect to a new statutory disqualification for any of the individuals.471 The Commission also notes that parallel swap markets remain large, with multi-name credit default swaps representing an increasing share of credit-default swap notional outstanding, and highly liquid.472 Three factors may reduce the magnitude of the above economic costs and benefits. First, the Commission will continue to be able, in appropriate cases, to institute proceedings under Exchange Act Section 15F(l)(3) to determine whether the Commission should censure, place limitations on the activities or functions of such person, suspend for a period not exceeding 12 months, or bar such person from being associated with an SBS Entity.473 Second, the security-based swap market is an institutional one, with investment advisers, banks, pension funds, insurance companies, and ISDArecognized dealers accounting for 99.8% of transaction activity.474 While security-based swaps may be more opaque than equity and bonds and may 471 See Rule of Practice Adopting Release, 84 FR at 4931. 472 See, e.g., Inaki Aldasoro & Torsten Ehlers, ‘‘The Credit Default Swap Market: What a Difference a Decade Makes,’’ BIS Quarterly Review, June 2018, at 3 (Graph 1), available at https://www. bis.org/publ/qtrpdf/r_qt1806b.pdf, last accessed March 26, 2019; see also Richard Haynes & Lihong McPhail, ‘‘The Liquidity of Credit Default Index Swap Networks’’ (Working Paper, 2017). 473 See 15 U.S.C. 78o–10(l)(3). 474 See Rule of Practice 194 Adopting Release, Table 1 of the economic baseline. PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 24269 give rise to greater information asymmetries between dealers and nondealer counterparties, institutional counterparties may be more informed and sophisticated compared to retail clients. However, given limited data availability on the domiciles of nondealer counterparties, the Commission is unable to quantify how many noninstitutional foreign counterparties may be affected by the proposed Rule. Importantly, the concentrated nature of security-based swap market-facing activity may reduce the ability of counterparties to choose to transact with SBS Entities that do not rely on disqualified personnel. As the Commission estimated elsewhere, the top five dealer accounts intermediated approximately 55% of all SBS Entity transactions by gross notional, and the median counterparty transacted with 2 dealers in 2017.475 While reputational incentives may flow from a customer’s willingness to deal with an SBS Entity, the fact that the customer may not have many dealers to choose from weakens those incentives. However, the Commission also notes that market concentration is itself endogenous to market participants’ counterparty selection. That is, counterparties trade off the potentially higher counterparty risk of transacting with SBS Entities that rely on disqualified associated persons against the attractiveness of securitybased swaps (price and non-price terms) that they may offer. If a large number of counterparties choose to move their business to SBS Entities that do not rely on disqualified associated persons (including those SBS Entities that may currently have lower market share), market concentration itself can decrease. Third, as discussed above, the exclusion will not be available with respect to an associated person if that associated person is currently subject to an order described in subparagraphs (A) and (B) of Section 3(a)(39) of the Exchange Act, with the limitation that an order by a foreign financial regulatory authority described in subparagraphs (B)(i) and (B)(iii) of Section 3(a)(39) shall only apply to orders by a foreign financial regulatory authority in the jurisdiction where the associated person is employed or located. In such circumstances, affected SBS Entities will be required to apply for relief under Rule of Practice 194 and will be unable to allow their disqualified associated person entities to effect or be involved in effecting 475 See Rule of Practice 194 Adopting Release, 84 FR at 4925. E:\FR\FM\24MYP2.SGM 24MYP2 24270 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules security-based swaps on their behalf, pending review by the Commission. khammond on DSKBBV9HB2PROD with PROPOSALS2 2. Effects on Efficiency, Competition, and Capital Formation The Commission has assessed the effects of the proposed amendment on efficiency, competition, and capital formation. As noted above, limiting the ability of statutorily disqualified persons to effect or be involved in effecting security-based swaps on behalf of SBS Entities may reduce compliance and counterparty risks and may facilitate competition among higher quality associated persons and SBS Entities, thereby enhancing integrity of security-based swap markets. At the same time, limits on the participation of disqualified employees in securitybased swap markets may result in costs related to replacing or reassigning an employee to SBS Entities or applying to the Commission for relief. This may disrupt existing counterparty relationships across closely linked swap and security-based swap markets and increase transaction costs borne by counterparties, adversely effecting efficiency and capital formation in swap and security-based swap markets. In addition, if more SBS Entities seek to avail themselves of the exclusion and retain, hire, or increase their reliance on disqualified foreign personnel in their transactions with foreign counterparties, a greater number of disqualified persons may seek employment and business opportunities in security-based swap markets. As discussed in the Rule of Practice 194 Adopting Release,476 there is a dearth of economic research on these issues in derivatives markets, and the research in other settings cuts both ways. On the one hand, a greater number of disqualified persons active in security-based swaps could increase the ‘‘lemons’’ problem and related costs of adverse selection,477 since market participants may demand a discount from counterparties if they expect a greater chance that counterparties have employed disqualified persons that are involved in arranging transactions. This effect could lead to a reduction in informational efficiency and capital formation. On the other hand, more 476 See Rule of Practice 194 Adopting Release, 84 FR at 4923. 477 See, e.g., George A. Akerlof, ‘‘The Market for ‘‘Lemons’’: Quality Uncertainty and the Market Mechanism,’’ 84 Q. J. Econ. 488 (1970). Informational asymmetry about quality can negatively affect market participation and decrease the amount of trading—a problem commonly known as adverse selection. When information about counterparty quality is scarce, market participants may be less willing to enter into transactions, and the overall level of trading may fall. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 flexibility in employing disqualified persons may also increase competition and consumer surplus.478 The proposed amendment would preserve an equal competitive standing of U.S. and non-U.S. SBS Entities with disqualified foreign personnel as they compete for business with foreign counterparties and foreign branches of U.S. counterparties. Importantly, under the baseline, both U.S. and non-U.S. Swap Entities are able to transact with foreign counterparties relying on their foreign disqualified personnel without applying to the CFTC for relief from the statutory prohibition. As discussed in the economic baseline, the Commission expects extensive cross-registration of dealers across the two markets. As a result, dually registered U.S. SBS Entities would be able to rely on the same disqualified foreign personnel in transacting with the same counterparties in both swap (e.g., index CDS) and security-based swap (e.g., single-name CDS) markets. The proposed amendment may create incentives for SBS Entities to relocate their personnel (or the activities performed by U.S. personnel) outside the U.S. to be able to avail themselves of the proposed exclusion and avoid being bound by the statutory prohibition. The cost of relocation will depend on many factors, such as the number of positions being relocated, the location of new operations, the costs of operating at the new location, and other factors. These factors will, in turn, depend on the relative volumes of market-facing activity that a firm carries out on different underliers and with counterparties in different jurisdictions. As a result of these dependencies, the Commission cannot reliably quantify the costs of these alternative approaches to compliance. However, the Commission believes that firms would seek to relocate their personnel (or the activities performed by U.S. personnel) only if they expect the relocations to be profitable. 478 See Jonathan Berk & Jules H. van Binsbergen, ‘‘Regulation of Charlatans in High-Skill Professions’’ (Stanford University Graduate School of Business, Research Paper No. 17–43, 2017), available at https://ssrn.com/abstract=2979134. The paper models the costs and benefits of both disclosure and standards regulation of ‘‘charlatans’’ (professionals who sell a service they do not deliver) in high skill professions. When there is a mismatch between high demand for a skill and short supply of the skill, the presence of charlatans in a profession is an equilibrium outcome. Importantly, reducing the number of charlatans by regulation decreases consumer surplus in their model. Both standards and disclosure regulations drive charlatans out of the market, but the resulting reduction in competition amongst producers actually reduces consumer surplus. In turn, producers strictly benefit from such regulation. PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 Further, the proposed amendment may improve the employment and career outcomes of disqualified foreign personnel relative to disqualified U.S. personnel. As a result, disqualified personnel may seek to relocate outside the U.S. and seek employment by SBS Entities in their foreign business. To the degree that such relocation occurs, it may reduce the effective scope of application of the statutory prohibition. This may also lead to a separating equilibrium: It may decrease counterparty risks and adverse selection costs of security-based swaps in SBS Entities and in transactions with U.S. counterparties, and increase counterparty risks and adverse selection costs in transactions with foreign counterparties and foreign branches of U.S. counterparties. 3. Alternatives Considered The Commission has considered several alternatives to the proposed amendment to Rule of Practice 194(c)(2). a. Relief for All SBS Entities With Respect to Non-U.S. Personnel Transacting With Non-U.S. Counterparties But Not With Foreign Branches of U.S. Counterparties The Commission could have proposed an exclusion for all SBS Entities with respect to foreign personnel transacting with foreign counterparties, without making the exclusion available to foreign personnel transacting with foreign branches of U.S. counterparties. As discussed above, a history of statutorily disqualifying conduct may signal higher ongoing risks to counterparties. SBS Entities may choose to replace disqualified foreign personnel due to reputational and compliance costs. In addition, the security-based swap market is institutional in nature, and better informed institutional counterparties may choose to move their business to another employee or another SBS Entity without disqualified personnel. To the degree that SBS Entities do not replace disqualified personnel and counterparties do not move their business, the alternative may decrease risks to foreign branches of U.S. counterparties relative to the proposed approach. Since both potential returns and potential risks of foreign branches may flow through to some U.S. parents (depending on the counterparty’s ownership and organizational structure), the alternative could reduce the returns and risks of such U.S. counterparties’ parents. At the same time, the alternative approach would involve unequal effects on foreign counterparties and foreign E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 branches of U.S. counterparties. Specifically, under the alternative, foreign counterparties would be able to choose between transacting with those SBS Entities that employ statutorily disqualified personnel and those that do not, whereas foreign branches of U.S. counterparties would only be able to transact with SBS Entities that do not employ statutorily disqualified personnel. If SBS Entities with disqualified personnel compensate for potentially higher counterparty risks with, for example, more attractive terms of security-based swaps, the alternative may introduce disparities in access and cost of security-based swaps available to foreign counterparties as compared to those available to foreign branches of U.S. counterparties. b. Relief for Non-U.S. Person SBS Entities With Respect to Non-U.S. Personnel Transacting With Non-U.S. Counterparties and Foreign Branches of U.S. Counterparties The Commission has considered a narrower alternative exclusion limited to non-U.S. person SBS Entities relying on non-U.S. personnel in their transactions with foreign counterparties and foreign branches of U.S. counterparties. The alternative exclusion would be subject to the same limitation as the proposal, discussed above: An SBS Entity would not be able to rely on the exclusion with respect to an associated person currently subject to an order that prohibits such person from participating in the U.S. financial markets, including the securities or swap market, or foreign financial markets. Relative to the proposed amendment, this alternative would broaden the effective scope of application of the statutory prohibition and might reduce ongoing compliance and counterparty risks for foreign counterparties and foreign branches of U.S. counterparties. Under the alternative, disqualified foreign personnel of U.S. SBS Entities would be unable to transact without the costs and delays related to applications for relief. This might decrease the number of disqualified foreign personnel transacting in security-based swap markets and seeking to associate with U.S. SBS Entities. Lower market participation of disqualified personnel on behalf of U.S. SBS Entities in their foreign transactions may reduce the costs of adverse selection and increase foreign counterparty willingness to transact with U.S. SBS Entities in security-based swaps. At the same time, it would result in a disparate competitive standing between U.S. SBS Entities and non-U.S. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 person SBS Entities as they are competing for business with foreign counterparties and foreign branches of U.S. counterparties. This alternative would allow non-U.S. SBS Entities to enjoy flexibility in hiring, retaining, and replacing non-U.S. personnel and in staffing foreign offices with personnel engaged in transactions with foreign counterparties. However, U.S. SBS Entities would be unable to rely on the exclusion and would have to either replace an employee or apply under Rule of Practice 194, incurring related costs and delays. To the degree that SBS Entities pass along costs to their counterparties, relative to the proposed exclusion, this narrower alternative may result in somewhat lower availability or worse terms of security-based swaps and may somewhat reduce the choice of dealers for foreign counterparties and foreign branches of U.S. counterparties. Finally, this approach would be inconsistent with the CFTC’s relief for Swap Entities. Given expected extensive cross-registration and active crossmarket participation by counterparties, a lack of comparable treatment of disqualification across swaps and security-based swaps would make it harder for the same U.S. SBS Entities to transact relying on the same foreign personnel with the same foreign counterparties in related markets. Further, under the alternative, foreign personnel of U.S. SBS Entities would not have the same competitive standing as foreign personnel of non-U.S. SBS Entities when engaging in business with the same foreign counterparties. The Commission also notes that the definition of a U.S. person is based on a natural person’s residency in the United States. As discussed above, excluding foreign personnel of foreign SBS Entities creates incentives for all disqualified U.S. personnel employed by foreign SBS Entities to be transferred to a foreign office in order to legally become non-U.S. personnel eligible for the alternative exclusion. Of course, the choice made by a non-U.S. SBS Entity to transfer disqualified U.S. personnel abroad will reflect the value of an employee’s skills and expertise, costs to reputation with counterparties, the number of positions being moved, and internal organizational structures of a non-U.S. SBS Entity. However, SBS Entities are commonly part of large financial groups with many domestic and foreign regional offices. Therefore many non-U.S. SBS Entities may be able to relocate statutorily disqualified U.S. personnel to foreign offices and rely on the exclusion. Under this alternative, however, disqualified personnel of U.S. SBS PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 24271 Entities would be unable to relocate to a foreign office and rely on the exclusion, adding to the competitive disparities between disqualified personnel of U.S. and foreign SBS Entities transacting with the same foreign counterparties. As a result, under the alternative, statutorily disqualified personnel of U.S. SBS Entities may seek employment with foreign SBS Entities and continue to transact with the same foreign counterparties on behalf of non-U.S. SBS Entities. The Commission continues to recognize that, due to adverse selection costs and compliance risks related to hiring and retaining disqualified persons, many SBS Entities may choose not to hire or may fire and replace statutorily disqualified employees. However, this incentive may be weaker with respect to personnel whose conduct giving rise to disqualification occurred in jurisdictions where statutory disqualification is not public information. c. Relief for Non-U.S. SBS Entities With Respect to Both U.S. and Non-U.S. Personnel Transacting With Foreign Counterparties and Foreign Branches of U.S. Counterparties The Commission has considered excluding from the statutory prohibition both U.S. and foreign disqualified personnel, but limiting the relief to nonU.S. person SBS Entities transacting exclusively with foreign counterparties or foreign branches of U.S. counterparties. The alternative exclusion would be subject to the same limitation as the proposal, discussed above: An SBS Entity would not be able to rely on the exclusion with respect to an associated person currently subject to an order that prohibits such person from participating in the U.S. financial markets, including the securities or swap market, or foreign financial markets. Under the alternative, non-U.S. SBS Entities would enjoy full flexibility in hiring, retaining, and replacing personnel and in staffing both U.S. and non-U.S. offices with personnel engaged in transactions with foreign counterparties. To the degree that nonU.S. SBS Entities pass along costs to their counterparties, this may result in somewhat higher availability or improved terms of security-based swaps for foreign counterparties. Further, under the alternative, disqualified U.S. personnel would have the same competitive standing as disqualified foreign personnel with similar skills and expertise transacting on behalf of nonU.S. SBS Entities with the same foreign E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24272 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules counterparties. For example, disqualified U.S. personnel transacting with foreign counterparties and foreign branches of U.S. counterparties would not need to relocate to a foreign office of a foreign SBS Entity to avail themselves of the exclusion. Relative to the proposed Rule, this alternative would increase the competitive gap between U.S. and nonU.S. SBS Entities in their ability to hire, retain, and locate disqualified personnel as they compete for business with foreign counterparties. To the degree that U.S. SBS Entities may wish to begin or continue to associate with disqualified personnel despite potential reputation costs, U.S. SBS Entities would be required to apply with the Commission and disallow disqualified personnel from effecting security-based swaps pending Commission action. At the same time, foreign SBS Entities would be able to freely hire and retain disqualified personnel in the U.S. and allow them to engage in security-based swap transactions with foreign counterparties and foreign branches of U.S. counterparties. As noted in the economic baseline, this alternative approach is inconsistent with the relief from the CFTC’s requirements that is available to both U.S. and non-U.S. SBS Entities with respect to only foreign personnel. Given expected extensive cross-registration and active cross-market participation by counterparties, differential treatment of disqualification may disrupt counterparty relationships between the same dually registered SBS Entities transacting with the same foreign counterparties in related markets. Under the alternative and relative to the proposed amendment, disqualified U.S. personnel of non-U.S. SBS Entities may enjoy better employment and career outcomes, which may increase the number of disqualified personnel transacting in security-based swap markets and seeking to associate with SBS Entities. Greater market participation of disqualified personnel on behalf of non-U.S. SBS Entities, particularly in jurisdictions where conduct giving rise to disqualification is not public or easily accessible information, may increase the costs of adverse selection and decrease counterparty willingness to transact with non-U.S. SBS Entities in securitybased swaps. As a result, some foreign counterparties may choose to move their transaction activity from non-U.S. to U.S. SBS Entities. The magnitude of the above economic effects of the alternative approach may be limited by three factors. First, many non-U.S. SBS Entities may choose to VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 locate personnel transacting with foreign counterparties in foreign offices if most of their business is in foreign underliers trading in foreign jurisdictions.479 As a result, some nonU.S. SBS Entities may already locate personnel, including statutorily disqualified personnel, dedicated to transacting with foreign counterparties outside the United States. Second, due to reputational and adverse selection costs and compliance risks related to hiring and retaining disqualified persons, many SBS Entities may choose not to hire, or may fire and replace disqualified employees. The incentive to disassociate is strongest in jurisdictions in which conduct giving rise to statutory disqualification is public information (as in the U.S). As a result, it is not clear how often non-U.S. SBS Entities would choose to hire or continue to employ disqualified U.S. personnel even if they were able to rely on an exclusion and avoid applying for relief under Rule of Practice 194. Third, the Commission notes that the primary difference between the proposed approach and the alternative is in the treatment of U.S. SBS Entity personnel. Specifically, under the proposal, U.S. SBS Entities may permit non-U.S. personnel to transact with foreign counterparties and foreign branches of U.S. counterparties, whereas under the alternative they may not. With respect to non-U.S. SBS Entities, the proposal provides relief for foreign personnel only; the alternative provides relief with respect to both U.S. and foreign personnel. As discussed above, the definition of a U.S. person in Rule 3a71–3(a)(4)(i)(A) under the Exchange Act with respect to a natural person is based on residency in the United States. Under the proposal, nonU.S. SBS Entities may be able to simply transfer statutorily disqualified U.S. personnel transacting with foreign counterparties to a foreign office in order to become eligible for the proposed exclusion. Of course, each non-U.S. SBS Entity’s choice to continue to employ disqualified U.S. personnel and relocate them abroad would likely reflect the value of an employee’s skills and expertise, reputational costs of continued association, the number of positions being moved, and internal organizational structures of each entity, among others. However, non-U.S. SBS Entities are commonly members of large financial groups with many domestic 479 As discussed in part VII.A.2.c, supra, we understand that many market participants engaged in market-facing activity prefer to use traders and manage risk for security-based swaps in the jurisdiction where the underlier is traded. PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 and foreign regional offices, and such relocation is likely to be feasible for some non-U.S. SBS Entities. As a result, depending on the ease and costs of such relocation and the value of disqualified personnel to the non-U.S. SBS Entity, the scope of this alternative with respect to non-U.S. SBS Entities may be similar to the effective scope of the proposed exclusion with respect to non-U.S. SBS Entities. d. Relief for All SBS Entities With Respect to All Personnel Transacting With Non-U.S. Counterparties and Foreign Branches of U.S. Counterparties The Commission has considered an exclusion for both U.S. and foreign SBS Entities with respect to all personnel transacting with foreign counterparties and foreign branches of U.S. counterparties. The alternative exclusion would be subject to the same limitation as the proposal, discussed above: An SBS Entity would not be able to rely on the exclusion with respect to an associated person currently subject to an order that prohibits such person from participating in the U.S. financial markets, including the securities or swap market, or foreign financial markets. This alternative would allow both non-U.S. and U.S. SBS Entities to enjoy full flexibility in hiring, retaining, and replacing personnel, and in staffing both U.S. and non-U.S. offices with personnel engaged in transacting with foreign counterparties and foreign branches of U.S. counterparties. To the degree that SBS Entities currently pass along costs to their counterparties or to the degree disqualified personnel may have superior skills or expertise, this may benefit the terms of security-based swaps and choice of dealers available to foreign counterparties. Further, disqualified U.S. personnel would have the same competitive standing as disqualified foreign personnel with similar skills and expertise transacting on behalf of SBS Entities with the same foreign counterparties. Relative to the proposed exclusion, this alternative provides more relief from the statutory prohibition and may, thus, increase ongoing compliance and counterparty risks for foreign counterparties and foreign branches of U.S counterparties. Since all disqualified personnel of all SBS Entities transacting with foreign counterparties and foreign branches of U.S. counterparties would be excluded from the statutory prohibition, more disqualified personnel may seek to associate with both U.S. and foreign SBS Entities and to transact with foreign counterparties and foreign branches of E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 U.S. counterparties. However, as discussed elsewhere in this release and in the Rule of Practice 194 Adopting Release, one of the key disincentives against continued association with disqualified personnel may be reputational. To the degree that information about the disqualifying conduct by U.S. personnel may be public and institutional customers perceive disqualification as increasing counterparty risk, counterparties may move their business, and SBS Entities may simply replace disqualified U.S. personnel. As a result, it is not clear that SBS Entities would significantly increase their reliance on disqualified personnel in transactions with foreign counterparties and foreign branches of U.S. counterparties relative to the baseline or the proposed approach. Nevertheless, to the degree that they may do so, greater market participation of disqualified personnel may increase adverse selection costs and decrease such counterparties’ willingness to participate in security-based swap markets. As noted above, a natural person’s residency in the United States is endogenous. As a result, any exclusion for foreign personnel, but not U.S. personnel, transacting with foreign counterparties may result in SBS Entities simply transferring disqualified U.S. personnel to a foreign office. As the Commission recognized above, this decision by an SBS Entity will reflect the uniqueness and value of an employee’s skills, expertise, and client relationships relative to the reputational costs and compliance risks of continuing to employ disqualified personnel and directs costs of personnel transfers. However, SBS Entities that belong to large global financial groups are less likely to be constrained by the location of disqualified personnel that they prefer to retain. As a result, the economic effects of this alternative may be similar to those of the proposed approach. e. Relief for All SBS Entities With Respect to Non-U.S. Personnel Effecting and Involved in Effecting SecurityBased Swaps With U.S. and Non-U.S. Counterparties The Commission has also considered alternatives excluding from the statutory prohibition non-U.S. associated persons involved in effecting security-based swaps with both U.S. and non-U.S. counterparties in general, or under certain circumstances. For example, the Commission has considered excluding from the statutory prohibition non-U.S. associated persons involved in effecting security-based swaps with U.S. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 counterparties, if such activity is limited in level or scope (e.g., collateral management). As discussed in the economic baseline, security-based swap markets are global and many SBS Entities actively participate across U.S. and nonU.S. markets. Due to economies of scale and scope, some SBS Entities may choose not to separate customer facing and/or operational activities, such as collateral management and clearing, related to security-based swaps with U.S. and non-U.S. counterparties. To the degree that some SBS Entities rely on the same personnel across their U.S. and non-U.S. business, they are currently unable to hire and retain statutorily disqualified personnel absent exemptive relief by the Commission. As discussed above, SBS Entities may face reputational costs from retaining disqualified employees. To the degree that SBS Entities would prefer to hire and retain certain disqualified employees due to their superior expertise, skills, and abilities, and despite such reputational costs, the alternative would provide beneficial flexibility in personnel decisions without necessitating an SBS Entity to completely separate the operational side of their U.S and non-U.S. businesses (and more flexibility relative to the proposal). Some of these benefits may flow through to counterparties in the form of more efficient execution of security-based swaps and related services, or better price and non-price terms. To the degree that statutory disqualification of associated persons may increase compliance and counterparty risks, the alternative may involve greater risks to U.S. counterparties of SBS Entities relative to the proposal. The Commission continues to note that the scope of conduct that gives rise to statutory disqualification is broad and includes conduct that is not related to investments or financial markets. Moreover, the security-based swap market is an institutional one, and conduct that gives rise to statutory disqualification in the U.S. is generally public. U.S. counterparties that believe statutory disqualification is a meaningful signal of quality may vote with their feet and choose to transact with non-disqualified personnel or SBS Entities that do not rely on disqualified personnel. The Commission notes that the alternative would provide broader relief compared to CFTC’s requirements in swap markets and would not result in a harmonized regulatory regime with respect to statutory disqualification. PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 24273 Importantly, the full costs and benefits of an alternative that provides broader relief from the statutory prohibition in security-based swaps compared to the relief available in swap markets may not be realized. Specifically, to the degree that market participants transact across swap and security-based swap markets with the same SBS Entity counterparties, SBS Entities may continue to rely on the same personnel who are allowed to effect or be involved in both swaps and security-based swap transactions. E. Certification, Opinion of Counsel, and Employee Questionnaires In addition, the Commission is proposing certain guidance on requirements regarding the certification and opinion of counsel under Rule 15Fb2–4, amendments to registration Rule 15Fb2–1, and modifications to the requirement to obtain employee questionnaires under proposed Rules 18a–5(a)(10) and (b)(8). 1. Guidance Regarding Rule 15Fb2–4 and Proposed Amendments to Rule 15Fb2–1 a. Background The Commission’s proposal retains the adopted certification and opinion of counsel requirements, but proposes additional guidance regarding the scope of the requirements. Specifically, the guidance would clarify that the requirement applies only with respect to the foreign laws of the jurisdiction or jurisdictions in which the nonresident SBS Entity maintains the covered books and records and that covered records include only records that relate to the ‘‘U.S. business’’ of the nonresident SBS Entity and financial records necessary for the Commission to assess compliance with its capital and margin rules (if applicable). In addition, the proposed guidance would clarify that the certification and opinion of counsel can be predicated on the consent of persons whose information is or will be included in the books and records, and can consider, under certain circumstances, whether the relevant regulatory authority in the foreign jurisdiction has previously approved or consented to the Commission requesting and obtaining documents from, and conducting on-site inspections or examinations at office of, nonresident SBS Entities located in the jurisdiction. Finally, the proposed guidance would clarify that the certification and opinion of counsel requirements would not need to address open contracts predating the filing of the registration application. In addition, the proposal would amend E:\FR\FM\24MYP2.SGM 24MYP2 24274 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules Rule 15Fb2–1 and establish a conditional registration regime discussed in Section IV.A.5 above. b. Costs, Benefits, and Effects on Efficiency, Competition, and Capital Formation (1) Proposed Guidance As the Commission stated in the Registration Adopting Release, the Commission’s access to books and records and the ability to inspect and examine registered SBS Entities facilitates Commission oversight of security-based swap markets.480 To the degree that the certification and opinion of counsel requirements provide assurances regarding the Commission’s ability to oversee and inspect and examine nonresident SBS Entities, the baseline rules may reduce counterparty and compliance risks and adverse selection. However, certain nonresident entities may lack clarity concerning the certification and opinion of counsel requirements. The recent passage of the EU General Data Protection Regulation (GDPR), as well as the potential exit of the United Kingdom from the European Union may create significant uncertainty for market participants currently intermediating large volumes of security-based swaps regarding their ability to comply with the certification and opinion of counsel requirements, as well as the background check recordkeeping requirements discussed below. In addition, since the adoption of SBS Entity registration rules, the Commission has received questions regarding specific aspects of the certification and opinion of counsel requirements and is aware of concerns about the ability of some nonresident market participants to comply with these requirements.481 The Commission estimates that nonresident SBS Entities currently intermediating approximately 59.8% of all security-based swap notional are subject to foreign privacy and secrecy 480 See 80 FR at 48972. e.g., IIB/SIFMA 8/26/2016 Letter; see also IIB 11/16/2016 Email; Memo to File dated July 24, 2018, available at https://www.sec.gov/comments/ s7-05-14/s70514-4107153-170272.pdf; Memo to File dated June 5, 2018, available at https:// www.sec.gov/comments/s7-08-12/s70812-3785770162712.pdf; Memo to File dated April 30, 2018, available at https://www.sec.gov/comments/s7-0514/s70514-4042895-168865.pdf; Memo to File dated April 30, 2018, available at https://www.sec.gov/ comments/s7-05-14/s70514-4042895-168865.pdf; Memo to file dated April 11, 2018, available at https://www.sec.gov/comments/s7-05-14/s705144035093-168391.pdf; Memo to file dated April 4, 2018, available at https://www.sec.gov/comments/ s7-05-14/s70514-3405597-162172.pdf; Memo to file dated April 3, 2018, available at https:// www.sec.gov/comments/s7-05-14/s70514-3405388162169.pdf. khammond on DSKBBV9HB2PROD with PROPOSALS2 481 See, VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 laws, blocking statutes, and other legal barriers that may make it difficult or create uncertainty about their ability to provide certification and opinion of counsel and/or to be subject to inspections and examinations by the Commission.482 To that extent, such nonresident SBS entities may be less likely to apply or become unable to register as SBS Entities when compliance with SBS Entity registration rules is required. As a result, some nonresident SBS Entities currently intermediating large volumes of security-based swap transactions may cease transaction activity or be forced to relocate certain operations, books, and records. This may result in disruptions to valuable counterparty relationships or increased costs to counterparties (to the degree that nonresident SBS Entities may pass along the costs of such restructuring in the form of higher transaction costs or less attractive security-based swaps). In addition, depending on whether and which SBS Entities step in to intermediate the newly available market share, there may be significant competitive effects. The proposed approach could benefit some nonresident entities currently intermediating security-based swap markets by reducing uncertainty, allowing them to more easily comply with the certification and opinion of counsel requirements, and register with the Commission while avoiding disruptions to counterparty relationships and potential competitive effects to security-based swap markets. For example, based on an analysis of foreign privacy and secrecy laws, 482 Since we expect a large number of U.S. SBS Entities will have dually registered as Swap Entities, to inform our analysis we considered foreign jurisdictions where CFTC staff previously provided no-action relief for trade repository reporting requirements as they apply to swap dealers (available at https://www.cftc.gov/ucm/ groups/public/@lrlettergeneral/documents/letter/ 15-01.pdf). This estimate was also informed by a legal analysis of the EU General Data Protection Regulation, foreign blocking statutes, bank secrecy and employment laws, jurisdiction specific privacy laws, and other legal barriers that may inhibit compliance with regulatory requirements. These jurisdictions were matched to the domicile classifications of TIW accounts likely to trigger requirements to register with the Commission as SBS Entities when compliance with registration requirements becomes effective, using 2017 DTCC– TIW data. If foreign jurisdictions amend their data privacy and blocking laws, provide guidance, or enter into international agreements that would facilitate compliance with Commission SBS Entity registration requirements before compliance with SBS Entity registration rules becomes effective, or if SBS Entities choose to restructure their operations and/or relocate their books and records to other jurisdictions (for example, in response to the potential exit of the U.K. from the E.U. or GDPR restrictions), this figure may over- or under-estimate the security-based swap market share impacted by the proposed guidance. PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 blocking statutes, and other legal barriers and information from market participants, the proposed guidance regarding consent may help SBS Entities currently intermediating approximately 47.2% of all security-based swap notional intermediated by SBS Entities to comply with the certification and opinion of counsel requirements, to the extent that those entities would otherwise have understood that the certification and opinion of counsel cannot be predicated on customer consent.483 To the extent that aspects of the proposed guidance may reduce the scope of the certification and opinion of counsel by nonresident SBS Entities relative to their baseline understanding of Rule 15Fb2–4, the proposed guidance may decrease the burden on nonresident SBS Entities and the assurances that the Commission will be able to effectively and efficiently oversee, inspect, and examine nonresident SBS Entities. However, as discussed above, the proposed amendment to Rule 15Fb2–1 regarding the certification and opinion of counsel requirements would not reduce or eliminate independent ongoing obligations of nonresident SBS Entities to provide the Commission with direct access to their books and records and to permit onsite inspections and examinations. Importantly, the Commission recognizes that the magnitude of the economic effects of the proposed guidance is influenced by how market participants currently understand the scope of the certification and opinion of counsel requirements. Specifically, the proposed guidance will only have the economic effects discussed below, to the extent that SBS Entities and their counterparties have a broader baseline understanding of the scope of existing rules. If market participants are 483 This estimate is based on an analysis of 2017 DTCC TIW account-level data on the transaction activity of entities likely to trigger requirements to register with the Commission as SBS Entities when compliance with registration requirements becomes effective. We note that customer consent may serve as a part of a broader legal basis for the opinion of counsel, and the proposed guidance may help those nonresident SBS Entities that are subject to foreign privacy, but not necessarily foreign secrecy laws, to comply with the certification and opinion of counsel requirements. If foreign jurisdictions amend their data privacy and blocking laws, provide guidance, or enter into international agreements that would facilitate compliance with the opinion of counsel requirement before compliance with SBS Entity registration rules become effective, or if SBS Entities choose to restructure their operations and/or relocate their books and records to other jurisdictions (for example, in response to the potential exit of the U.K. from the E.U. or GDPR restrictions), this figure may over- or under-estimate the security-based swap market share impacted by the proposed guidance. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 currently interpreting the scope of the certification and opinion of counsel requirements in a manner similar to that provided by the proposed guidance, the economic effects of the proposed guidance may be de minimis. (2) Proposed Conditional Registration The proposal would also amend Exchange Act Rule 15Fb2–1 to allow applicants unable to provide the certification and opinion of counsel to become conditionally registered for up to 24 months after the compliance date for registration rules. Under the proposal, if an entity fails to provide the requisite certification and opinion of counsel within 24 months, the Commission may institute proceedings to determine whether ongoing registration should be denied. The Commission is cognizant of the fact that SBS Entity Registration rules and other elements of the Title VII regime will apply to an active market. As analyzed in the economic baseline, the Commission recognizes that security-based swap markets involve extensive cross-border activity, and nonresident SBS Entities intermediate a large percentage of security-based swaps. The Commission preliminarily believes that the nonresident SBS entities that may face uncertainty about their ability to comply with certification and opinion of counsel requirements, and are likely to utilize conditional registration, are those SBS Entities located in jurisdictions with foreign privacy and secrecy laws, blocking statutes, and other legal barriers described above. The conditional registration element of the proposal may provide SBS Entities currently active in securitybased swap markets with beneficial flexibility and time to relocate some of their operations and/or books and records around the constraints of foreign privacy and secrecy laws, blocking statutes, and other legal barriers, without disrupting ongoing counterparty relationships and market activity. In addition, the proposal may facilitate smooth functioning of active security-based swap markets as compliance with the Commission’s Title VII rules becomes required, may benefit both SBS Entities and counterparties by preserving SBS Entity—counterparty relationships, and may enhance efficiency and capital formation in security-based swaps. However, conditional registration may reduce the assurances of the certification and opinion of counsel regarding the Commission’s ability to inspect and examine some SBS Entities during the 24-month period. In VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 addition, 24 months may not be sufficient for the more complex SBS Entities to relocate and restructure their security-based swap market activity outside the reach of foreign privacy and secrecy laws, blocking statutes, and other legal barriers, particularly as foreign laws, statutes and legal barriers evolve. Thus, under the proposal there may still be a risk of disruptions to counterparty relationships and market activity if conditionally registered SBS Entities having large market shares, and transacting with hundreds and thousands of counterparties, are unable to meet the certification and opinion of counsel requirements within the 24month period. Moreover, counterparties that may rely on the Commission’s ability to inspect and examine a registered SBS Entity as a signal of higher quality may reduce their participation in security-based swap markets, which may increase adverse selection. Alternatively, they may vote with their feet and shift business from conditionally registered SBS Entities to non-conditionally registered SBS Entities. This may enhance competition between conditionally registered and non-conditionally registered SBS Entities and may create a market incentive for conditionally registered SBS Entities to provide the certification and opinion of counsel. c. Alternatives Considered The Commission considered alternative approaches to the proposed guidance and amendments regarding the certification and opinion of counsel requirements. Specifically, the Commission considered proposing some, but not other, aspects of the above relief. For example, the Commission considered proposing only elements of the guidance concerning covered foreign laws and covered records. The Commission has also considered proposing guidance about covered foreign laws and covered records, as well as open contracts and timing of certification, but not aspects of the relief allowing certification and opinion of counsel to be predicated on customer consent or arrangements with foreign regulators. The Commission has also considered shortening the conditional registration period (e.g., to 12 or 18 months). Relative to the proposal, these alternatives would provide less relief and greater uncertainty to nonresident entities that may seek to register with the Commission as an SBS Entity, which may increase the likelihood of disruptions of counterparty relationships and risks of adverse effects on market activity in security-based swaps. At the same time, these PO 00000 Frm 00071 Fmt 4701 Sfmt 4702 24275 alternatives may increase the scope, strength, and/or timeliness of the certification and opinion of counsel requirement, which may give the Commission further assurances regarding its ability to oversee securitybased swap activity of nonresident entities applying for registration. Importantly, regardless of the certification and opinion of counsel requirement, all nonresident SBS Entities would continue to have independent ongoing obligations to provide the Commission with access to their books and records and to permit on-site inspections and examinations. The Commission has considered an alternative under which all conditionally registered SBS Entities would be required to provide disclosures to U.S. counterparties or to all counterparties regarding their conditional registration. Such disclosures may help inform counterparties regarding the conditional registration status of SBS Entities with which they may wish to transact. To the degree that counterparties may consider conditional registration as a signal of lower quality or may seek to build longterm relationships with nonconditionally registered SBS Entity counterparties, and to the degree such counterparties are otherwise uninformed about SBS Entities’ registration status, this alternative may facilitate more efficient counterparty selection. The alternative may also create reputational incentives for conditionally registered SBS Entities to provide the requisite certification and opinion of counsel to the Commission, to the degree that some counterparties may interpret conditional registration as a signal of reduced quality. However, such disclosure requirements would involve burdens on SBS Entities related to the preparation and production of such disclosures. Related costs may be partly or fully passed along to SBS Entities’ counterparties in the form of more expensive security-based swaps. As noted above, the Commission preliminarily believes that nonresident SBS Entities most likely to utilize conditional registration are those SBS Entities that face uncertainty regarding their ability to comply with certification and opinion of counsel requirements due to privacy and secrecy laws, blocking statutes, and other legal barriers in their foreign jurisdictions. Based on the analysis of 2017 TIW data, the Commission estimates that there are approximately 9,611 unique relationships (pairs of counterparties and accounts likely to trigger SBS Entity registration requirements with E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24276 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules registered office locations in jurisdictions with foreign privacy and secrecy laws, blocking statutes, and other legal barriers) or approximately 72.6% of all unique dealer-counterparty pairs active in security-based swap market that may become subject to the disclosure requirement.484 Limiting such disclosure requirements to relationships between dealer accounts in jurisdictions with foreign privacy and secrecy laws, blocking statutes, and other legal barriers and U.S. non-dealer counterparties may affect 4,322 unique dealer-U.S. counterparty relationships. Since many of the dealer accounts belong to large financial groups, the Commission can also use the domicile of the parent organization to categorize dealers at the level of the financial group (at the firm-level) instead of at the level of the dealer (at the account-level). Using this more conservative approach, there may be 779 unique dealercounterparty ties (or 25.7% of all ties) that may be affected by foreign privacy and secrecy laws, blocking statutes, and other legal barriers and the alternative disclosure requirement. The Commission also notes that, as a baseline matter, SBS Entity registration forms are public and the Commission may, in the course of Commission business, publish a list of registered SBS Entities and note the conditional registration status of such entities on the Commission’s public website. As an alternative, the Commission has also considered lengthening the conditional registration period (to, e.g., 5 or 10 years) or eliminating the certification and opinion of counsel requirements. As discussed in prior sections, the Commission continues to believe that access to books and records and the ability to inspect and examine registered SBS Entities facilitates Commission oversight of security-based swap markets. These alternatives may limit the scope of assurances provided to the Commission by SBS Entity applicants regarding the Commission’s ability to inspect and examine SBS Entities. To the degree that some nonresident SBS Entities may be unable to provide certification or opinion of counsel due to their inability to become subject to Commission inspections and examinations (as a result of, for 484 This estimate includes unique dealercounterparty pairs where the counterparty is another dealer. Excluding dealer-dealer pairs reduces the estimate by 279, with an estimate of 9,332 unique pairs between non-dealer counterparties and dealer accounts with registered office locations in jurisdictions with foreign privacy and secrecy laws, blocking statutes, and other legal barriers (or approximately 70.5% of all unique dealer-counterparty pairs). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 example, foreign privacy and secrecy laws, blocking statutes, and other legal barriers), these alternatives may reduce the extent of Commission inspections and examinations. However, these alternatives would reduce or eliminate certification and opinion of counsel burdens, related uncertainty, and liability risk. Importantly, under these alternatives, all nonresident SBS Entities would continue to have independent ongoing obligations to provide the Commission with access to their books and records and to permit onsite inspections and examinations. The Commission preliminarily believes that the proposed approach better balances these competing considerations and that 24 months is sufficient time for nonresident SBS Entities to comply with the certification and opinion of counsel requirements (and relocate their books, records, and other operations, if needed). 2. Proposed Modifications to Proposed Rules 18a–5(a)(10) and (b)(8) a. Background As discussed in the economic baseline, in the Recordkeeping and Reporting Proposing Release, the Commission proposed a background questionnaire recordkeeping requirement for stand-alone and bank SBS Entities that parallels similar broker-dealer recordkeeping requirements. The Commission is proposing modifications to the proposed questionnaire recordkeeping requirement, which would modify proposed Rules 18a–5(a)(10) and 18a– 5(b)(8). The proposed modifications would tailor the proposed questionnaire requirement in two ways. First, under the proposed modifications, an SBS Entity would not be required to make and keep current questionnaires if the SBS Entity is excluded from the statutory prohibition in Section 15F(b)(6) with respect to the associated person. Second, the questionnaire or application for employment executed by an associated person who is not a U.S. person need not include certain information if the law of the jurisdiction where the associated person is located or employed prohibits the receipt of that information or the creation or maintenance of records reflecting that information. b. Costs, Benefits, and Effects on Efficiency, Competition, and Capital Formation The proposed questionnaire recordkeeping requirements are intended to support Commission oversight and entity compliance with PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 the substantive requirements of Rule 15Fb6 regarding statutory disqualification. The proposed modifications to proposed Rule 18a–5 eliminate the questionnaire requirement with respect to associated persons excluded from the statutory prohibition. These modifications are unlikely to adversely affect Commission oversight of SBS Entity compliance with the statutory prohibition since those associated persons are already excluded from the statutory prohibition. At the same time, the proposed modifications may involve modest reductions to corresponding paperwork burdens. To the degree that SBS Entities may pass along these burdens to counterparties, the proposed modifications may also result in some benefits to counterparties of these SBS Entities. As discussed in section VIII.B, the Commission estimates that the addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) to proposed Rule 18a–5 would reduce initial costs associated with proposed rule 18a–5 by $51,943 and ongoing costs by $64,622.485 Therefore, the cost savings to SBS Entities and counterparties from this proposed modification are likely to be modest. In addition, as discussed above, the Commission is proposing to modify, by adding paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B), the questionnaire requirement with respect to non-U.S. associated persons of SBS Entities if the receipt of that information, or the creation or maintenance of records reflecting that information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located. The primary intended benefit of this proposed modification is to enable certain nonresident SBS Entities to continue intermediating transactions with their counterparties. Specifically, due to the existence of foreign privacy and secrecy laws, blocking statutes, and other legal barriers, the proposed tailoring of the questionnaire requirement can enable more nonresident market participants to register as SBS Entities without a potentially costly relocation or business restructuring of certain operations and records to jurisdictions outside the reach of such laws. This may also reduce costs for counterparties (as nonresident SBS Entities may pass along related costs to counterparties in the form of more expensive security485 Initial cost reduction for all stand-alone and bank SBS Entities reduction: (127 × Attorney at $409 per hour) = $51,943. Ongoing cost reduction for all stand-alone and bank SBS Entities reduction: (158 × Attorney at $409 per hour) = $64,622. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 based swaps) and may preserve valuable counterparty relationships. In addition, this proposed modification may also involve some modest burden reductions. As discussed in section VIII.B, the proposed modification to add paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a–5 is expected to decrease the initial costs associated with proposed rule 18a–5 by $25,767 and ongoing costs by $32,311.486 In aggregate, as estimated in section VIII.B, under both of the proposed modifications, initial and ongoing costs of all stand-alone and bank SBS Entities related to complying with proposed Rule 18a–5 are estimated at $233,130 and $291,617 respectively.487 The Commission continues to recognize that certain recordkeeping requirements may facilitate compliance and Commission oversight of SBS Entities. In proposing a tailored questionnaire requirement with respect to non-U.S. associated persons, the Commission has considered the value of such recordkeeping for compliance with Rule 15Fb6–2 and related oversight, as well as the costs and potential disruptions to counterparty relationships and market activity that may result when foreign jurisdictions do not allow nonresident SBS Entities to receive, create, or maintain such records. Importantly, as discussed above, the Commission continues to note that the proposed tailoring of the requirement in (a)(10)(iii)(B) and (b)(8)(iii)(B) does not eliminate or affect the scope of all SBS Entities’ ongoing obligations to comply with Section 15F(b)(6) of the Exchange Act and Rule 15Fb6–2, with respect to every associated person that effects or is involved in effecting security-based swaps and is not subject to an exclusion from the statutory disqualification prohibition in Section 15F(b)(6) of the Exchange Act. Finally, the proposed approach involves a disparate treatment of brokerdealer SBS Entities and stand-alone and bank SBS Entities. Based on an analysis of 2017 TIW data and filings with the Commission, out of 50 participants likely to register with the Commission as security-based swap dealers, the 486 Initial cost reduction for all stand-alone and bank SBS Entities reduction: (63 × Attorney at $409 per hour) = $25,767. Ongoing cost reduction for all stand-alone and bank SBS Entities reduction: (79 × Attorney at $409 per hour) = $32,311. 487 Initial costs for all stand-alone and bank SBS Entities reduction under the proposed modifications to proposed Rule 18a–5(a)(10) and (b)(8): ((760¥127¥63) × Attorney at $409 per hour) = $233,130. Ongoing costs for all stand-alone and bank SBS Entities reduction: ((950¥158¥79) × Attorney at $409 per hour) = $291,617. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Commission estimates that 16 market participants have already registered with the Commission as broker-dealers; 9 market participants will be standalone security-based swap dealers, and up to 25 participants will be bank security-based swap dealers.488 Under the proposal, SBS Entities that are not stand-alone or bank SBS Entities would be required to make and keep current a questionnaire or application for employment for associated persons with respect to whom the broker-dealer SBS Entity is excluded from the prohibition in Exchange Act 15F(b)(6), incurring corresponding compliance burdens, albeit modest, estimated above. In addition, to the extent that some SBS Entities that are not stand-alone or bank SBS Entities are heavily reliant on employees in jurisdictions with foreign privacy and secrecy laws, blocking statutes, and other legal barriers in their security-based swap business, they may be unable to comply with the employee questionnaire requirement and register with the Commission. These SBS Entities would be unable to register without a relocation or restructuring of various records and or operations, involving costs for such SBS Entities— costs that may be passed along to counterparties or disrupt existing counterparty relationships. This may reduce the competitive standing of SBS Entities cross-registered as brokerdealers and their employees in certain foreign jurisdictions and improve the competitive standing of stand-alone and bank SBS Entities and their employees in foreign data privacy jurisdictions. The Commission notes that brokerdealer SBS Entities are already subject to a questionnaire requirement under Rule 17a–3(a)(12). The Commission preliminarily believes that such entities are making and keeping current employment questionnaires and applications for all of their associated persons in their normal course of business. In addition, the Commission preliminarily believes that such SBS Entities have already structured their security-based swap business in a manner that would enable them to comply with this requirement without disrupting transaction activity or ongoing counterparty relationships. The sunk cost nature of such structuring of broker-dealers’ security-based swap 488 We note that these figures are based on current market activity in security-based swaps. We are unable to quantify the number of market participants currently expected to register as brokerdealer, bank, or stand-alone security-based swap dealers that may choose to restructure their U.S. security-based swap market participation in response to the pending substantive requirements of Title VII, such as capital and margin requirements. PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 24277 business may partly mitigate the above competitive effects. c. Alternatives Considered The Commission has considered an alternative approach, which would provide the same relief (by also amending Rule 17a–3(a)(12) and providing the same relief to brokerdealer SBS Entities) with respect to: (i) Exemption based on the non-U.S. associated SBS Entity’s exclusion from the prohibition under Section 15F(b); and (ii) exemption based on local law. The alternative would benefit a greater number of SBS Entities and counterparties by extending the proposed relief (with its benefits discussed above) to all SBS Entities in their security-based swap business. Moreover, the alternative would eliminate the competitive disparities between broker-dealer and stand-alone and bank SBS Entities discussed above. However, the Commission continues to recognize that recordkeeping requirements are essential to the inspection and examination process and facilitate effective oversight of the markets the Commission regulates. Importantly, as discussed above, brokerdealer SBS Entities are already subject to a questionnaire requirement under Rule 17a–3(a)(12). The Commission preliminarily believes that broker-dealer SBS Entities have already located and structured their security-based swap business in a way that would allow them to comply with the questionnaire requirement. At the same time, the Commission understands that standalone and bank SBS Entities active in security-based swap markets are not currently subject to similar recordkeeping requirements and that the questionnaire requirement, as proposed, may require these entities to relocate their security-based swap business and staff to other jurisdictions. This may disrupt counterparty relationships and ongoing business transactions between stand-alone and bank SBS Entities and their customers. The Commission also understands that broker-dealer SBS Entities are routinely making and keeping current employment questionnaires and applications for all of their associated persons, which may reduce the benefits of the above alternative. However, if such baseline behavior of broker-dealer SBS Entities is a result of Rule 17a–3 currently in effect and not of compliance practices optimal for each broker-dealer SBS Entity, the alternative E:\FR\FM\24MYP2.SGM 24MYP2 24278 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules may reduce burdens 489 and provide beneficial flexibility in recordkeeping practices for broker-dealer SBS Entities with respect to associated persons excluded from the statutory prohibition. The Commission continues to note that the proposed recordkeeping requirement in Rule 18a–5 is intended to support substantive obligations with respect to statutory disqualification and that such substantive obligations would no longer exist with respect to associated persons of broker-dealer SBS Entities effecting or involved in effecting security-based swaps and exempt from the statutory prohibition under, for instance, proposed Rule of Practice 194(c)(2). khammond on DSKBBV9HB2PROD with PROPOSALS2 F. Request for Comment The Commission requests comment on all aspects of the economic analysis of the proposed amendment to Rule 3a71–3. To the extent possible, the Commission requests that commenters provide supporting data and analysis with respect to the benefits, costs, and effects on competition, efficiency, and capital formation of adopting the proposed amendment or any reasonable alternatives. In particular, the Commission asks commenters to consider the following questions: 1. Are there costs and benefits associated with the proposed amendment that the Commission has not identified? If so, please identify them and if possible, offer ways of estimating these costs and benefits. 2. In the commenter’s view, what are the costs and benefits associated with Alternative 1, and what are the costs and benefits associated with Alternative 2? 3. Are there effects on efficiency, competition, and capital formation stemming from the proposed amendment that the Commission has not identified? If so, please identify them and explain how the identified effects result from the proposed amendment. 4. Are there data sources or data sets that can help the Commission refine its estimates of the costs and benefits associated with the proposed amendment? If so, please identify them. 5. Are there alternatives to the proposed amendment that the Commission has not considered? If so, please identify and describe them. 6. In the commenter’s view, is the estimation of the initial costs of current Exchange Act Rules 17a–3 and 17a–4, including the assumptions used, appropriate? If not, please explain how the estimation can be improved. 7. In the commenter’s view, is the estimation of the ongoing costs of meeting registration requirements as a brokerdealer,490 including the assumption used, 489 As acknowledged above, the overall burdens of compliance with proposed Rule 18a–5 are relatively modest; however, fixed costs may be more significant for smaller entities. 490 See part VII.B.1.a, supra. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 appropriate? If not, please explain how the estimation can be improved. The Commission also requests comment on all aspects of the economic analysis of the proposed guidance regarding the scope of the ‘‘arranged, negotiated, or executed’’ test. To the extent possible, the Commission requests that commenters provide supporting data and analysis with respect to the benefits, costs, and effects on competition, efficiency, and capital formation of adopting the proposed guidance. In addition, the Commission asks commenters to consider the following questions: 8. Are there costs and benefits associated with the proposed guidance that the Commission has not identified? If so, please identify them and if possible, offer ways of estimating these costs and benefits. 9. Are there effects on efficiency, competition, and capital formation stemming from the proposed guidance that the Commission has not identified? If so, please identify them and explain how the identified effects result from the proposed amendment. 10. Are there data sources or data sets that can help the Commission refine its estimates of the costs and benefits associated with the proposed guidance? If so, please identify them. 11. Are there alternatives to the proposed guidance that the Commission has not considered? If so, please identify and describe them. The Commission also requests comment on all aspects of the economic analysis of the proposed amendment to Rule of Practice 194. To the extent possible, the Commission requests that commenters provide supporting data and analysis with respect to the benefits, costs, and effects on competition, efficiency, and capital formation of adopting the proposed amendment or any reasonable alternatives. In addition, the Commission asks commenters to consider the following questions: 12. What additional qualitative or quantitative information should the Commission consider as part of the baseline for its economic analysis of the proposed Rule of Practice 194(c)(2)? To what extent do entities likely to register with the Commission as SBS Entities rely on non-U.S. personnel dealing with U.S. versus non-U.S. counterparties? 13. Has the Commission accurately characterized the costs and benefits of proposed Rule of Practice 194(c)(2)? If not, why not? Should any of the costs or benefits be modified? What, if any, other costs or benefits should the Commission take into account? Would entities likely to register with the Commission as SBS Entities choose not to register or deregister if Rule of Practice 194(c)(2) is not adopted? If possible, please offer ways of estimating these costs and benefits. What additional considerations can PO 00000 Frm 00074 Fmt 4701 Sfmt 4702 the Commission use to estimate the costs and benefits of the proposed amendment? 14. Has the Commission accurately characterized the effects on competition, efficiency, and capital formation arising from proposed Rule of Practice 194(c)(2)? If not, why not? 15. Has the Commission accurately characterized the costs, benefits, and effects on competition, efficiency, and capital formation of the above alternatives to the proposed Rule of Practice 194(c)(2)? If not, why not? Should any of the costs or benefits be modified? What, if any, other costs or benefits should the Commission take into account? 16. Are there other reasonable alternatives to the proposed Rule of Practice 194(c)(2) that the Commission should consider? What are the costs, benefits, and effects on competition, efficiency, and capital formation of any other alternatives? The Commission also requests comment on all aspects of the economic analysis of the proposed guidance and amendments related to certification and opinion of counsel, conditional registration, and the employee questionnaire requirements. To the extent possible, the Commission requests that commenters provide supporting data and analysis with respect to the benefits, costs, and effects on competition, efficiency, and capital formation of adopting the proposed amendment or any reasonable alternatives. In addition, the Commission asks commenters to consider the following questions: 17. What additional qualitative or quantitative information should the Commission consider as part of the baseline for its economic analysis of these amendments? Which jurisdictions and security-based swap market participants are affected by foreign privacy and secrecy laws, blocking statutes, and other legal barriers? To what extent do entities likely to register with the Commission as bank, stand-alone, or broker-dealer SBS Entities rely on nonresident personnel located or employed in jurisdictions with foreign privacy and secrecy laws, blocking statutes, and other legal barriers? To what extent do such personnel transact across reference security and security-based swap markets, and with institutional versus retail clientele? 18. Has the Commission accurately characterized the costs and benefits of the proposed conditional registration in Rule 15Fb2–1 and guidance regarding the certification and opinion of counsel requirements in Rule 15Fb2–4? Has the Commission accurately characterized the costs and benefits of the proposed modifications to the questionnaire recordkeeping requirement in Rule 18a– 5(a)(10) and Rule 18a–5(b)(8)? If not, why not? Should any of the costs or benefits be modified? What, if any, other costs or benefits should the Commission take into account? Would entities likely to register with the Commission as SBS Entities choose E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 not to register or deregister without the proposed conditional registration in Rule 15Fb2–1 or guidance regarding Rule 15Fb2– 4? If possible, please offer ways of estimating these costs and benefits. What additional considerations can the Commission use to estimate the costs and benefits of the proposed guidance? 19. Has the Commission accurately characterized the effects on competition, efficiency, and capital formation arising from proposed guidance, amendments, and modifications regarding Rules 15Fb2–1 and 15Fb2–4, and proposed Rule 18a–5? If not, in what way? 20. Has the Commission accurately characterized the costs, benefits, and effects on competition, efficiency, and capital formation of the above alternatives to the proposed guidance and amendments regarding conditional registration, certification and opinion of counsel, and employee questionnaires? If not, why not? Should any of the costs or benefits be modified? What, if any, other costs or benefits should the Commission take into account? 21. Has the Commission accurately characterized the costs, benefits, and effects on competition, efficiency, and capital formation of alternatives to the proposed guidance, amendments, and modifications regarding conditional registration, certification and opinion of counsel, and employee questionnaires? Are there other reasonable alternatives the Commission should consider? What are the costs, benefits, and effects on competition, efficiency, and capital formation of any other alternatives? VIII. Paperwork Reduction Act Certain provisions of the proposed amendments and modifications to Exchange Act Rules 3a71–3 and 18a–5 contain ‘‘collection of information’’ 491 requirements within the meaning of the Paperwork Reduction Act of 1995 (‘‘PRA’’), and the Commission is submitting the proposed collections of information to the Office of Management and Budget (‘‘OMB’’) for review in accordance with 44 U.S.C. 3507 and 5 CFR 1320.11. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The title of the new collection of information associated with the proposed changes to Rule 3a71–3 is ‘‘Rule 3a71–3(d)—Conditional Exception from De Minimis Counting Requirement in Connection with Certain Transactions Arranged, Negotiated or Executed in the United States.’’ 492 OMB 491 44 U.S.C. 3502(3). new collection of information is distinct from an existing collection of information related to Exchange Act Rule 3a71–3(c), which provides an exception from the application of certain business conduct requirements in connection with a 492 This VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 has not yet assigned a control number to this new collection of information. The title and OMB control number for the collection of information the Commission is proposing to modify is Rule 18a–5—Records to be made by certain security-based swap dealers and major security-based swap participants, OMB Control Number 3235–0745. The Commission’s earlier PRA assessments have been revised to reflect the modifications to proposed Rule 18a–5 from those that were proposed in the Recordkeeping and Reporting Proposing Release. A. Proposed Amendment to Rule 3a71–3 1. Summary of the Collection of Information 493 a. Disclosure of Limited Title VII Applicability Both alternatives to the proposed exception to Rule 3a71–3 would be conditioned in part on the registered entity engaged in arranging, negotiating or executing activity in the United States notifying the counterparties of the non-U.S. person relying on the exception, contemporaneously with and in the same manner as the conduct at issue, that the non-U.S. person is not registered with the Commission as a security-based swap dealer, and that certain Exchange Act provisions or rules addressing the regulation of securitybased swaps would not be applicable in connection with the transaction. This disclosure would be required only so long as the identity of the counterparty is known to that registered entity at a reasonably sufficient time prior to the execution of the transaction to permit the disclosure.494 security-based swap dealer’s ‘‘foreign business.’’ See generally Business Conduct Adopting Release, 81 FR at 30082. 493 Because the proposed amendment to Rule 3a71–3 would require the use of a registered security-based swap dealer or a registered broker in connection with the transactions at issue, the proposed amendment also would implicate collections of information associated with securitybased swap dealer or broker status (apart from the collections associated with the specific conditions of the exception). Separate collections of information address the registration of securitybased swap dealers and brokers, as well as the requirements associated with those registered entities as a matter of course, including recordkeeping requirements applicable to such registered entities. The separate collections of information associated with requirements of general applicability for registered security-based swap dealers and brokers are not addressed as part of this rulemaking, and instead are addressed by the collections of information associated with those separate requirements. 494 See Alternatives 1 and 2—proposed paragraph (d)(1)(iv) of Rule 3a71–3. PO 00000 Frm 00075 Fmt 4701 Sfmt 4702 24279 b. Business Conduct Condition Alternative 1 would be conditioned in part on the registered security-based swap dealer that engages in arranging, negotiating or executing activity in the United States in connection with the transactions at issue complying with certain security-based swap dealer business conduct requirements—related to: Disclosure of material risks, characteristics, incentives and conflicts of interest; suitability of recommendations; and fair and balanced communications—‘‘as if’’ the counterparty to the non-U.S. person relying on the exception also were a counterparty to that registered securitybased swap dealer.495 Each of those underlying business conduct requirements itself is associated with a collection of information.496 Alternative 2 would be conditioned in part on the registered broker or a registered security-based swap dealer that engages in such activity in the United States in connection with the transaction at issue complying with those same business conduct requirements, ‘‘as if’’ the counterparty to the non-U.S. person relying on the exception also were a counterparty to that registered entity.497 c. Trade Acknowledgment and Verification Condition Alternative 1 would be conditioned in part on the registered security-based swap dealer that engages in arranging, negotiating or executing activity in the United States in connection with the transactions at issue complying with trade acknowledgment and verification requirements—which themselves are associated with collections of information 498—‘‘as if’’ the counterparty to the non-U.S. person relying on the exception also were a counterparty to that registered securitybased swap dealer.499 495 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(1)–(3) of Rule 3a71–3. 496 See Business Conduct Adopting Release, 81 FR at 30083–85 (discussing collections of information regarding security-based swap dealer requirement for disclosure of information regarding material risks, characteristics, incentives and conflicts of interest, suitability of recommendations, and fair and balanced communications). 497 See Alternative 2—proposed paragraph (d)(1)(ii)(B)(1)–(3) of Rule 3a71–3. 498 See Business Conduct Adopting Release, 81 FR at 30083–85 (discussing collections of information regarding security-based swap dealer requirement for disclosure of information regarding material risks, characteristics, incentives and conflicts of interest, disclosure of information regarding clearing rights, suitability of recommendations, and fair and balanced communications). 499 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(4) of Rule 3a71–3. E:\FR\FM\24MYP2.SGM 24MYP2 24280 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules Alternative 2 would be conditioned in part on the registered broker or securitybased swap dealer that engages in such activity in the United States in connection with the transactions at issue complying with those trade acknowledgment and verification requirements ‘‘as if’’ the counterparty to the non-U.S. person relying on the exception also were a counterparty to that registered entity.500 d. Portfolio Reconciliation Condition Alternative 1 would be conditioned in part on the registered security-based swap dealer that engages in arranging, negotiating or executing activity in the United States in connection with the transactions at issue complying with proposed portfolio reconciliation requirements, but only with respect to the initial portfolio reconciliation required by the rule, ‘‘as if’’ the counterparty to the non-U.S. person relying on the exception also is a counterparty to that registered securitybased swap dealer.501 That underlying proposed portfolio reconciliation requirement itself is associated with a collection of information.502 Alternative 2 for the exception would be conditioned in part on the registered broker or security-based swap dealer that engages in such activity in the United States in connection with the transactions at issue complying with the proposed portfolio reconciliation requirement with regard to the initial reconciliation ‘‘as if’’ that registered entity is a counterparty to the non-U.S. person’s counterparty (and ‘‘as if’’ that entity is registered as a security-based swap dealer if it is not so registered).503 e. Recordkeeping Condition khammond on DSKBBV9HB2PROD with PROPOSALS2 Both proposed alternatives would be conditioned in part on the registered entity engaged in arranging, negotiating or executing activity in the United States obtaining from the non-U.S. person relying on the exception, and maintaining, trading relationship documentation involving the counterparty to the transaction.504 500 See Alternative 2—proposed paragraph (d)(1)(ii)(B)(4) of Rule 3a71–3. 501 See Alternative 1—proposed paragraph (d)(1)(ii)(B)(5) of Rule 3a71–3. 502 See Risk Mitigation Proposing Release, 83 FR at 4640 (discussing collection of information regarding proposed security-based swap dealer portfolio reconciliation requirement). 503 See Alternative 2—proposed paragraph (d)(1)(ii)(B)(5) of Rule 3a71–3. 504 See Alternatives 1 and 2—proposed paragraph (d)(1)(iii)(B)(2) of Rule 3a71–3. The proposed exception also would be conditioned in part on the registered entity engaged in market facing activity in the United States creating and maintaining books and records relating VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 f. Consent to Service Condition Both proposed alternatives for the exception to Rule 3a71–3 would be conditioned in part on the registered entity engaged in arranging, negotiating or executing activity in the United States obtaining from the non-U.S. person relying on the exception written consent to service of process for any civil action brought by or proceeding before the Commission, providing that process may be served on the non-U.S. person by service on the registered entity in the manner set forth in the registered entity’s current Form BD, SBSE, SBSE–A or SBSE–BD, as applicable.505 g. ‘‘Listed Jurisdiction’’ Condition Both proposed alternatives for the exception to Rule 3a71–3 would be conditioned in part on the non-U.S. person relying on the exception being subject to the margin and capital requirements of a ‘‘listed jurisdiction.’’ 506 The proposal specifies that applications for orders requesting listed jurisdiction status may be made by persons that may rely on the exception, or by foreign financial authorities, or made on the Commission’s own initiative, and must be filed pursuant to the procedures set forth in Exchange Act Rule 0–13.507 2. Use of Information a. Disclosure of Limited Title VII Applicability The proposed disclosure condition is intended to help guard against counterparties reasonably presuming that the involvement of U.S. personnel in an arranging, negotiating or executing capacity as part of the transaction would be accompanied by the safeguards associated with Title VII security-based to the transactions subject to this exception that are required, as applicable, by Rule 17a–3 and 17a–4, or Rule 18a–5 and 18a–6, including books and records relating to: Disclosure of risks, characteristics, incentives and conflicts; suitability; fair and balanced communications; trade acknowledgment and verification; and portfolio reconciliation. See Alternatives 1 and 2—proposed paragraph (d)(1)(iii)(B) of Rule 3a71–3 (requiring creation and maintenance of books and records relating to the requirements specified in proposed paragraph (d)(1)(ii)(B). Because that part of the condition subsumes the collection of information that the Commission would expect to be associated with the final rules adopting those security-based swap dealer books and records requirements, it does not constitute a separate collection of information attributable to this proposed exception. See note 493, supra. 505 See Alternatives 1 and 2—proposed paragraph (d)(1)(iii)(B)(3) of Rule 3a71–3. 506 See Alternatives 1 and 2—proposed paragraph (d)(1)(v) of Rule 3a71–3. 507 See Alternatives 1 and 2—proposed paragraph (d)(2)(i) of Rule 3a71–3. PO 00000 Frm 00076 Fmt 4701 Sfmt 4702 swap dealer regulation applying to the non-U.S. person. b. Business Conduct Condition The use of the information associated with the business conduct condition would be the same as the use of information associated with the currently extant security-based swap dealer business conduct requirements, given that the relevant condition simply would expand the existing requirements to apply to transactions where they currently do not apply. Accordingly, the condition requiring the registered entity to comply with requirements for the disclosure of risks, characteristics, incentives and conflicts, particularly would assist the counterparty in assessing the transaction by providing it with a better understanding of the expected performance of the securitybased swap, and provide additional transparency and insight into pricing.508 The condition requiring the registered entity to comply with requirements regarding the suitability of recommendations would assist the registered entity in making appropriate recommendations.509 The condition requiring the registered entity to comply with fair and balanced communication requirements in part would better equip the counterparty to make more informed investment decisions.510 c. Trade Acknowledgment and Verification Condition The use of the information associated with the trade acknowledgement and verification condition would be the same as the use of information associated with the currently extant security-based swap dealer trade acknowledgment and verification requirements, given that the relevant condition simply would expand the existing requirements to apply to transactions where they currently do not apply. In general, the trade acknowledgment would serve as a written record by which the counterparties to the transaction may memorialize the terms of a transaction, and the verification requirements are intended to ensure that the written record of the transaction accurately reflects the terms of the transaction as understood by the respective counterparties.511 508 See Business Conduct Adopting Release, 81 FR at 30088. 509 See id. 510 See id. 511 See Trade Acknowledgement Adopting Release, 81 FR at 39830. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules d. Portfolio Reconciliation Condition The use of the information associated with the portfolio reconciliation condition would be the same as the use of information associated with the proposed security-based swap dealer portfolio reconciliation requirement. In general, that proposed requirement is intended to help ensure the accuracy of the data reported to SDRs, and to help facilitate the ability of registered security-based swap data repositories to comply with requirements that they verify the information they receive.512 e. Recordkeeping Condition The proposed condition requiring the registered entity to obtain and maintain trading relationship documentation involving the non-U.S. person relying on the exception and its counterparty is intended to help the Commission obtain a full view of the dealing activities connected with transactions relying on the proposed exception, including such activities that occur in the non-U.S. person taking advantage of the exception. Absent such access, the Commission may be impeded in identifying fraud and abuse in connection with transactions that have been arranged, negotiated or executed in the United States, where such fraud or abuse may be apparent only in light of relevant information obtained from the non-U.S. person relying on the exception or its associated persons. khammond on DSKBBV9HB2PROD with PROPOSALS2 f. Consent to Service Condition The proposed use of the consent to service condition is to facilitate the Commission’s ability to serve process on the non-U.S. person relying on the exception, to assist the Commission in efficiently taking action to address potential violations of the federal securities laws in connection with the transactions at issue. g. ‘‘Listed Jurisdiction’’ Condition The proposed use of information provided by applicants in connection with ‘‘listed jurisdiction’’ applications is to assist the Commission in evaluating the effectiveness of the financial responsibility requirements of jurisdictions regulating non-U.S. persons taking advantage of the exception. This is intended to help avoid creating an incentive for persons engaged in a security-based swap dealing business in the United States to book their transactions into entities that solely are subject to the regulation of jurisdictions that do not effectively require security-based swap dealers or 512 See Risk Mitigation Proposing Release, 83 FR at 4641. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 24281 comparable entities to meet certain financial responsibility standards. That should help avoid providing an unwarranted competitive advantage to non-U.S. persons that conduct securitybased swap dealing activity in the United States without being subject to strong financial responsibility standards. The condition also is consistent with the view that applying financial responsibility requirements to such transactions between two non-U.S. persons can help mitigate the potential for financial contagion to spread to U.S. market participants and to the U.S. financial system more generally. obtain from the non-U.S. person a consent to service of process. Applications for listed jurisdiction determinations may be submitted by the up to 24 non-U.S. persons that would rely on the proposed exception. In practice the Commission expects that the greater portion of such listed jurisdiction applications will be submitted by foreign financial authorities, given their expertise in connection with the relevant financial responsibility requirements and information access provisions, and in connection with their supervisory and enforcement oversight with regard to the financial responsibility requirements.514 3. Respondents 4. Total Annual Reporting and Recordkeeping Burdens (Summarized in Table 3) As discussed above, the Commission preliminarily estimates that up to 24 entities that engage in security-based swap dealing activity may rely on the proposed conditional exception from having to count dealing transactions with non-U.S. counterparties against the de minimis thresholds.513 To satisfy the proposed exception, each of those up to 24 entities would make use of an affiliated registered security-based swap dealer and/or registered broker that would be required to comply with—and incur collections of information in connection with—conditions related to compliance with relevant Title VII security-based swap dealer requirements related to business conduct, trade acknowledgment and verification, and portfolio reconciliation. Each of those up to 24 registered entities also would have to provide disclosures to counterparties of the non-U.S. persons relying on the exception, to obtain and maintain trading relationship documentation involving the non-U.S. persons relying on the proposed exception and their counterparties, and to comply with the condition that the registered entity 513 This estimate is based on data (see part VII.A.7, supra) indicating that: (1) Six U.S. entities are engaged in security-based swap dealing activity above the de minimis thresholds may have the incentive to book future security-based swaps with non-U.S. counterparties into U.S. affiliates to make use of the proposed exception in connection with those transactions. (2) One non-U.S. entity would fall below the $3 billion de minimis threshold if its transactions with non-U.S. counterparties were not counted. (3) The ‘‘arranged, negotiated, or executed’’ counting standard would result in five additional non-U.S. entities incurring assessment costs in connection with the de minimis exception. The analysis has doubled those numbers—to up to twelve U.S. persons that may change its booking practices involving security-based swaps to make use of the exception, plus up to twelve additional non-U.S. persons—to address potential growth of the security-based swap market and to account for uncertainty associated with the availability of data, leading to the final estimate of 24 entities. See id. PO 00000 Frm 00077 Fmt 4701 Sfmt 4702 a. Disclosure of Limited Title VII Applicability The Commission preliminarily estimates that the up to 12 U.S. entities that may book transactions into their non-U.S. affiliates to make use of the proposed conditional exception in the aggregate would annually engage in nearly 76,000 security-based swap dealing transactions with non-U.S. counterparties.515 Here—and in connection with the other two groups addressed below—the analysis doubles that amount to estimate the number of total disclosures, recognizing that there will be situations in which the registered entity engaged in arranging, negotiating or executing activity in the United States makes the required disclosures but a transaction does not result.516 The Commission also preliminary estimates that the two non-U.S. persons that may fall below the de minimis thresholds due to the proposed conditional exception in the aggregate would annually engage approximately 20,000 security-based swap dealing transactions with non-U.S. counterparties,517 doubled here to 514 As discussed below, the Commission estimates that three non-U.S. persons will submit listed jurisdiction applications. 515 Available data indicates that the six U.S. entities that are engaged in security-based swap dealing activity above the de minimis thresholds in the aggregate annually engage in 37,827 transactions with non-U.S. counterparties. To address potential growth in the market and datarelated uncertainty, the analysis doubles that estimate to 75,654 transactions annually (and, as noted above, have doubled the estimated number of entities). 516 This produces an estimate of 151,308 (75,654 × 2) annual disclosures pursuant to the proposed condition. 517 Available data indicates that the one non-U.S. entity that would fall below the de minimis thresholds due to the exception annually engages in E:\FR\FM\24MYP2.SGM Continued 24MYP2 24282 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 account for disclosures that are not followed by a transaction.518 The Commission further preliminarily estimates that the additional ten nonU.S. entities that may rely on the proposed conditional exception in the aggregate would annually engage in approximately 2,100 security-based swap dealing transactions, with nonU.S. persons, that may be subject to the proposed exception,519 doubled here to account for disclosures that are not followed by a transaction.520 In light of the limited contents of those contemporaneous disclosures, the Commission preliminarily believes that each such disclosure on average would be expected to take no more than five minutes.521 Accordingly, the Commission preliminarily estimates that the 12 U.S. entities that may book transactions into their non-U.S. affiliates to make use of the proposed conditional exception in the aggregate will annually spend a total of approximately 12,609 hours to provide the disclosures required by the conditions.522 The Commission further preliminarily estimates that the two non-U.S. entities that may fall below the de minimis thresholds due to the exception in the aggregate will annually spend a total of approximately 3,355 hours to provide the disclosures required by the conditions,523 while the other ten nonU.S. entities that may rely on the proposed conditional exception in the 10,064 transactions with non-U.S. counterparties. To address potential growth in the market and datarelated uncertainty, the analysis doubles that estimate to 20,128 transactions annually (and, as noted above, have doubled the estimated number of entities). 518 This produces an estimate of 40,256 (20,128 × 2) annual disclosures pursuant to the proposed condition. 519 Available data indicates that would result in five additional non-U.S. persons that would be expected to incur assessment costs due to the ‘‘arranged, negotiated, or executed’’ counting standard engage in a total of 1,056 annual securitybased swap transactions with non-U.S. counterparties. To address potential growth in the market and data-related uncertainty, the analysis doubles that estimate to 2,112 transactions annually (and have doubled the estimated number of entities). 520 This produces an estimate of 4,224 (2,112 × 2) annual disclosures pursuant to the proposed condition. 521 Given that the disclosure must be provided contemporaneously with the market-facing activity by the registered entity engaged in market-facing activity in the United States, the disclosure could not reasonably be provided via inclusion in standard trading documentation and would require the creation of specific disclosure documentation. 522 151,308 aggregate annual disclosures × 5 minutes per transaction. This averages to approximately 1,050.75 hours for each of those 12 firms. 523 40,256 aggregate annual disclosures × 5 minutes per transaction. This averages to approximately 1,677 hours for each of those two firms. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 aggregate will annually spend a total of approximately 352 hours to provide the disclosures required by the conditions.524 The Commission also preliminarily believes that each of those 24 total entities would initially spend 100 hours and incur approximate costs of $29,715 to develop policies and procedures to help ensure that appropriate disclosures are provided.525 b. Business Conduct Condition The Commission estimated the reporting and recordkeeping burdens associated with the relevant securitybased swap dealer business conduct requirements under Title VII when it adopted those requirements. The Commission believes that those estimates are instructive for calculating the per-entity reporting and recordkeeping burdens associated with the proposed business conduct condition, given that the condition in effect would require compliance with those business conduct requirements. • Disclosures of material risks, characteristics, and conflicts and incentives. When the Commission earlier considered the compliance burdens associated with those disclosure requirements (along with clearing rights and daily mark disclosure requirements not applicable under this proposal),526 the Commission estimated that implementation of those requirements: (i) Initially would require three persons from trading and structuring, three persons from legal, two persons from operations and four persons from compliance, for 100 hours each; 527 (ii) half of those persons would be required to spend 20 hours annually to re-evaluate and modify disclosures and systems requirements; 528 and (iii) 524 4,224 aggregate annual disclosures × 5 minutes per transaction. This averages to 35.2 hours for each of those ten firms. 525 Applied to the estimated 24 entities at issue here, this would amount to 2,400 hours and $713,160. These estimates are based on prior estimates, made in connection with the adoption of the ‘‘arranged, negotiated, or executed’’ counting standard, that non-U.S. persons would incur 100 hours and $28,300 to establish policies and procedures to restrict communications with U.S. personnel in connection with the non-U.S. persons’ dealing activity. See ANE Adopting Release, 81 FR at 8628. That $28,300 estimate has been adjusted to $29,715 in current dollars (28,300 × 1.05). 526 See Business Conduct Adopting Release, 81 FR at 30091–92. In connection with those prior estimates, the Commission noted that entities that are dually registered with the CFTC already provide their counterparties with similar disclosures. 527 Applied to the 24 entities at issue here, this would amount to an aggregate initial burden of 28,800 hours (24 entities × 12 persons × 100 hours). 528 Applied to the 24 entities at issue here, this would amount to an aggregate annual burden of 2,880 hours (24 entities × 6 persons × 20 hours). PO 00000 Frm 00078 Fmt 4701 Sfmt 4702 those entities would require eight fulltime persons for six months of systems development, programming and testing,529 along with two full-time persons annually for maintenance of this system.530 • Suitability of recommendations. When the Commission previously analyzed the burdens associated with the security-based swap dealer recommendation suitability requirement, it estimated that most security-based swap dealers would obtain representations from counterparties to comply with the institutional suitability provisions of the requirement.531 The Commission further particularly estimated: (i) That for security-based swap market participants that also are swap market participants, most of the requisite representations have been drafted for the swaps context, and that to the extent that any modifications are necessary to adapt those representations to the securitybased swap context, each market participant would require two hours to assess the need for modifications and make any required modifications; 532 529 Applied to the 24 entities at issue here, this would amount to an aggregate initial burden of 192,000 hours (24 entities × 8 persons × 1,000 hours). 530 Applied to the 24 entities at issue here, this would amount to an aggregate annual burden of 96,000 hours (24 entities × 2 persons × 2,000 hours). In adopting those disclosure requirements, the Commission also incorporated an estimate of one hour per security-based swap for an entity to evaluate whether more particularized disclosures are necessary and to develop additional disclosures. See Business Conduct Adopting Release, 81 FR at 30092. The Commission does not believe that particular category of costs would be applicable in the context of the transactions at issue here. Under the proposed exception, the disclosure condition extends not only to incentives and conflicts of the registered entity, but also disclosures and conflicts of its non-U.S. affiliate. The Commission believes, however, that the existing burden estimates are sufficient to account for this aspect of the disclosure, given that the two entities’ affiliation should facilitate the transfer of any relevant incentive and conflict information for the registered entity to convey. 531 See id. at 30092–93. 532 Analysis of current data indicates that the six U.S. entities engaged in security-based swap dealing activity above the de minimis thresholds in the aggregate have 161 unique non-U.S. counterparties that are swap market participants, and 70 unique non-U.S. counterparties that are not swap market participants. The one non-U.S. entity that may fall below the de minimis threshold due to the exception has 391 unique non-U.S. counterparties that are swap market participants, and 178 unique non-U.S. counterparties that are not swap market participants. The five additional nonU.S. persons that would be expected to incur assessment costs in connection with the ‘‘arranged, negotiated, or executed’’ counting standard in the aggregate have six unique non-U.S. counterparties that are swap market participants, and one unique non-U.S. counterparty that are not swap market participants. Adding together those estimates and then doubling them (in light of the uncertainty E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules and (ii) other market participants (apart from special entities not relevant here) would require five hours for each market participant to review and agree to the relevant representations.533 • Fair and balanced communications. The Commission’s earlier analysis of the burdens associated with the fair and balanced communications requirement 534 took the view that each registered entity would incur: (i) $6,000 in initial legal costs to draft or review statements of potential opportunities and corresponding risks in marketing materials; 535 (ii) an additional initial six hours for internal review of other communications such as emails and Bloomberg messages; 536 and (iii) $8,400 in initial legal costs associated with marketing materials for more bespoke transactions.537 khammond on DSKBBV9HB2PROD with PROPOSALS2 c. Trade Acknowledgment and Verification Condition The Commission estimated the reporting and recordkeeping burdens associated with the trade acknowledgment and verification requirements under Title VII when it associated with the estimate and to account for potential growth of the security-based swap market) produces a total estimate of 1,116 unique non-U.S counterparties that are swap market participants, and 498 that are not. Only non-U.S. counterparties are relevant for purposes of this analysis because the proposed exception does not address securitybased swap transactions involving U.S. person counterparties. Consistent with these assumptions, the potential burden associated with such modifications in connection with the proposed condition would amount to 2,232 hours (1,116 non-U.S. securitybased swap market participants that also are swap market participants × two hours). 533 Consistent with the above assumptions, the potential burden associated with such modifications in connection with the proposed condition would amount to 2,490 hours (498 nonU.S. security-based swap market participants that are not also swap market participants × five hours). 534 See Business Conduct Adopting Release, 81 FR at 30093. 535 In connection with the proposed exception, the potential burden associated with such drafting or review would amount to $151,200 (24 entities × $6,000 × 1.05 adjustment to current dollars). 536 In connection with the proposed exception, the potential burden associated with such internal review would amount to 144 hours (24 entities × 6 hours). 537 In connection with the proposed exception, the potential burden associated with such drafting or review would amount to $211,680 (24 entities × $8,400 × 1.05 adjustment to current dollars). In adopting the fair and balanced communication requirement, the Commission also incorporated an estimate of ongoing compliance costs (associated with review of email communications sent to counterparties) over the term of the security-based swap. See Business Conduct Adopting Release, 81 FR at 30093. Those costs are not incorporated into this estimate because the registered entity that engaged in market-facing activity in the United States in connection with the transactions at issue here would not be expected to have ongoing communications with the counterparty to the security-based swap. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 adopted those requirements.538 The Commission believes that those estimates are instructive for calculating the per-entity reporting and recordkeeping burdens associated with the proposed trade acknowledgment and verification condition, given that the condition in effect would require compliance with that trade acknowledgment and verification requirement by additional persons and/ or in additional circumstances. When the Commission earlier considered the compliance burdens associated with the trade acknowledgement and verification requirements, the Commission estimated that each applicable entity would incur: (i) 355 hours initially to develop an internal order and trade management system; 539 (ii) 436 hours annually for day-to-day technical support, as well as amortized annual burden associated with system or platform upgrades and updates; 540 (iii) 80 hours initially for the preparation of written policies and procedures to obtain verification of transaction terms; 541 and (iv) 40 hours annually to maintain those policies and procedures.542 d. Portfolio Reconciliation Condition The Commission estimated the recordkeeping burdens associated with the portfolio reconciliation requirements under Title VII when it proposed those requirements.543 The Commission believes that those estimates are instructive for calculating the per-entity recordkeeping burdens associated with the proposed portfolio reconciliation condition, given that the condition in effect would require compliance with that portfolio reconciliation requirement by additional persons and/or in additional circumstances. When the Commission considered the recordkeeping burden associated with the portfolio reconciliation requirement, it estimated that each respondent on 538 See id. at 39830–31. connection with the proposed exception, the potential burden associated with such system development would amount to 8,520 hours (24 entities × 355 hours). 540 In connection with the proposed exception, the potential annual burden associated with such support and updates would amount to 10,464 hours (24 entities × 436 hours). 541 In connection with the proposed exception, the potential burden associated with such preparation would amount to 1,920 hours (24 entities × 80 hours). 542 In connection with the proposed exception, the potential annual burden associated with such policies and procedures would amount to 960 hours (24 entities × 40 hours). 543 See Risk Mitigation Proposing Release, 84 FR at 4642–43. 539 In PO 00000 Frm 00079 Fmt 4701 Sfmt 4702 24283 average would incur an annual burden of 190 hours in connection with proposed Rule 15Fi–3(a), which addresses portfolio reconciliation obligations in connection with transactions where the counterparty to the registered entity is a security-based swap dealer and major security-based swap participant.544 The Commission further estimated that each respondent on average would incur an annual burden of 227.5 hours in connection with proposed Rule 15Fi–3(b), which addresses portfolio reconciliation obligations in connection with transactions where the counterparty to the registered entity is not a securitybased swap dealer and major securitybased swap participant,545 for a total of 417.5 hours. While recognizing that the proposed condition requires only the initial reconciliation of any particular instrument, the Commission nonetheless believes that these estimates provide a useful upper bound for the per-entity burden associated with this condition.546 544 See Risk Mitigation Proposing Release, 84 FR at 4642. That was based on estimates regarding the time to perform each reconciliation, and the number of counterparties associated with each required frequency of portfolio reconciliation (i.e., daily reconciliations for portfolios with more than 500 security-based swaps, weekly reconciliations for portfolios with more than 50 but fewer than 500 security-based swaps, and quarterly reconciliations for portfolios with no more than 50 security-based swaps). 545 See id. at 4642–43. That was based on estimates regarding the time to perform each reconciliation, and the number of counterparties associated with each required frequency of portfolio reconciliation (i.e., quarterly reconciliations for portfolios with more than 100 security-based swaps, and annual reconciliations for portfolios with no more than 100 security-based swaps). 546 In connection with the proposed exception, the estimated aggregate annual burden associated with this condition would be 10,020 hours (24 entities × 417.5 hours). The Commission believes that the above estimate of 10,020 appropriately reflects the burden associated with the portfolio reconciliation condition. At the same time, the Commission recognizes that, depending on the applicable facts and circumstances, the registered entity engaged in arranging, negotiating or executing conduct in the United States may need to obtain, from the non-U.S. affiliate relying on the transaction, information needed to perform the initial portfolio reconciliation. The Commission typically would not expect such transfers of information to constitute an independent collection of information, because the registered entity generally would be expected to possess that information to comply with regulatory reporting obligations pursuant to Regulation SBSR (leading any resulting burdens to be subsumed within the collection of information associated with Regulation SBSR). Nonetheless, in the event that the registered entity is not otherwise subject to regulatory reporting obligations pursuant to Regulation SBSR, such transfers of information from the non-U.S. affiliate to the registered entity may constitute an independent collection of information. In those E:\FR\FM\24MYP2.SGM Continued 24MYP2 24284 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules e. Recordkeeping Condition To comply with the proposed condition that the affiliated registered entity obtain from the non-U.S. person, and maintain, copies of trading relationship documentation the registered entity and the non-U.S. person jointly would need to develop policies and procedures to provide for the identification of such records and for their transfer to the registered affiliate. For each use of the proposed exception, the Commission preliminarily estimates that such policies and procedures would impose require a one-time initial burden of 20 hours.547 The Commission also preliminarily estimates that the non-U.S. person relying on this exception also would need to expend two hours per week to identify such records and to electronically convey the records to its registered affiliate.548 The Commission further preliminarily estimates that the registered affiliate would need to expend one hour per week in connection with the receipt and maintenance of those records.549 f. Consent to Service Condition To comply with the proposed condition that the affiliated registered entity obtain from the non-U.S. person relying on the exception written consent to service of process for civil actions, one or the other of those parties would have to draft such a consent or use an industry-standard consent provision, and the registered entity must obtain that consent from the non-U.S. person. The Commission preliminarily estimates that the parties jointly must expend [two] hours in connection with this process.550 g. ‘‘Listed Jurisdiction’’ Condition The Commission believes that burden estimates associated with applications for substituted compliance determinations are instructive with regard to the burdens that would be associated with applications by market participants in connection with ‘‘listed jurisdiction’’ status.551 When the Commission initially adopted Rules 0–13 and 3a71–6, providing for substituted compliance in connection with security-based swap dealer business conduct requirements, the Commission concluded that the ‘‘great majority’’ of substituted compliance applications would be submitted by foreign authorities, and that ‘‘very few’’ applications would be submitted by security-based swap dealers (or major security-based swap participants), and the Commission concluded that three such registered entities would submit substituted compliance applications.552 The Commission further estimated that the one-time paperwork burden associated with preparing and submitting all three substituted compliance requests in connection with those requirements would be approximately 240 hours, plus $240,000 for the services of outside professionals.553 The Commission subsequently relied on those estimates in connection with the paperwork burdens associated with amendments to Rule 3a71–6 related to trade acknowledgement and verification.554 The Commission similarly believes that the majority of ‘‘listed jurisdiction’’ applications would be made by foreign authorities rather than by the up to 24 non-U.S. persons that potentially would rely on the exception. Consistent with the estimates in connection with the substituted compliance rule, moreover, the Commission estimates that three non-U.S. persons that seek to rely on the exception would file listed jurisdiction applications, and that in the aggregate those three persons would incur initial paperwork burdens, associated with preparing and submitting the requests, of approximately 240 hours, plus $252,000 for the services of outside professionals (incorporating a five percent addition to reflect current dollars). TABLE 3—PROPOSED RULE 3a71–3 AMENDMENT—SUMMARY OF PAPERWORK REDUCTION ACT BURDENS Initial burden Annual burden Burden type Disclosure of limited Title VII applicability: * disclosure by 12 U.S. dealing entities (A) .......................................................................... disclosure by 2 non-U.S. dealing entities (B) ..................................................................... disclosure by other non-U.S. entities (C) ........................................................................... related policies and procedures (same) ............................................................................. khammond on DSKBBV9HB2PROD with PROPOSALS2 Disclosure of risks, characteristics et al.: structuring, legal, operations, compliance .......................................................................... circumstances, and consistent with the Paperwork Reduction Act analysis associated with Regulation SBSR, the Commission anticipates that the upper bound on the initial burden for each non-U.S. affiliate to construct an infrastructure to provide for the transfer of this information would amount to 1,394 hours (see Exchange Act Release No. 74244 (Feb. 11, 2015), 80 FR 14564, 14676 (Mar. 19, 2015)), or 33,456 hours in the aggregate (24 nonU.S. entities × 1,394 hours). Also, based on prior estimates that it would take 0.005 hours to report each security-based swap transaction (see id.), and the estimate that this proposed exception in the aggregate would address 97,894 transactions annually (see notes 515, 517 and 519 supra), the Commission estimates that the upper bound on the aggregate annual burden associated with such transfers of information would amount to approximately 489 hours (97,894 transactions × 0.005 hours). Such burdens likely would be mitigated if, for example, the registered entity and its non-U.S. affiliate jointly make use of unified back-office systems, or if the counterparty relationship largely is managed by personnel of the registered entity, or VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Per-firm Aggregate ........................... ........................... ........................... 100 hr. ............... $29,715 ............. ........................... ........................... ........................... 2,400 hr. ............ $713,160 ........... 1,200 hr ............. 28,800 hr ........... if the non-U.S. entity independently is subject to Regulation SBSR or has developed similar types of systems to comply with foreign reporting requirements. 547 Across the 24 potential uses of the proposed exception, this would amount to a total of 480 hours (24 entities × 20 hours). 548 Across the 24 potential uses of the proposed exception, this would amount to a total of 2,496 hours annually (24 entities × 2 hours × 52 weeks). 549 Across the 24 potential uses of the proposed exception, this would amount to a total of 1,248 hours annually (24 entities × 1 hour × 52 weeks). The recordkeeping condition also specifies that, for the exception to be available, the registered entity must create and maintain books and records as required by applicable rules, including any books and records requirements relating to the provisions specified in paragraph (d)(1)(ii)(B) (i.e., relating to disclosure of risks, characteristics, incentives and conflicts; suitability; fair and balanced communications; trade acknowledgment and verification; and portfolio reconciliation). Because that part of the condition subsumes the collection PO 00000 Frm 00080 Fmt 4701 Sfmt 4702 Per-firm (hr) 1,050.75 1,677.3 35.2 Aggregate (hr) 12,609 3,355 352 of information that we would expect to be associated with the final rules adopting those security-based swap dealer books and records requirements, it does not constitute a separate collection of information. See note 493, supra. 550 Across the 24 expected uses of the proposed exception, this would amount to a total of 48 hours (24 entities × 2 hours). 551 Notwithstanding the substantive differences between the standards associated with listed jurisdiction determinations and substituted compliance assessments, see part III.B.5, supra, the two sets of applications will be submitted pursuant to Rule 0–13 and may be expected to address certain analogous elements. 552 See Business Conduct Adopting Release, 81 FR at 30097. 553 This was based on the estimate that each request would require approximately 80 hours of in-house counsel time, plus $80,000 for the services of outside professionals (based on 200 hours of outside time × $400/hour). See id. 554 See Trade Acknowledgement Adopting Release, 81 FR at 39832. E:\FR\FM\24MYP2.SGM 24MYP2 24285 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules TABLE 3—PROPOSED RULE 3a71–3 AMENDMENT—SUMMARY OF PAPERWORK REDUCTION ACT BURDENS—Continued Initial burden Annual burden Burden type re-evaluation and modification ........................................................................................... systems development, programming, testing ..................................................................... system maintenance .......................................................................................................... Suitability: reps. by participants also in swap market .......................................................................... representations by other counterparties ............................................................................. Fair and balanced communications: statement drafting ............................................................................................................... additional internal review .................................................................................................... legal costs .......................................................................................................................... Trade acknowledgement and verification: internal order and trade mgt. systems ............................................................................... daily tech. support/amortized upgrades ............................................................................. initial preparation of policies and procedures .................................................................... maintenance of policies and procedures ........................................................................... Portfolio reconciliation: initial reconciliation of transactions .................................................................................... Copies of trading relationship documentation: joint development of policies/procedures ........................................................................... non-US entity identification and conveyance ..................................................................... registered entity receipt and maintenance ......................................................................... Consent to service of process: joint drafting/transfer to registered entity ............................................................................ ‘‘Listed jurisdiction’’ applications: applications by non-regulators ........................................................................................... (same) ................................................................................................................................ Per-firm Aggregate ........................... 8,000 hr ............. ........................... ........................... 192,000 hr ......... ........................... 2 hr .................... 5 hr .................... 2,232 hr ............. 2,490 hr ............. $6,300 ............... 6 hr .................... $8,820 ............... $151,200 ........... 144 hr ................ $211,680 ........... 355 hr ................ ........................... 80 hr .................. ........................... 8,520 hr ............. ........................... 1,920 hr ............. ........................... ........................... Per-firm (hr) Aggregate (hr) 120 2,880 4,000 96,000 436 10,464 40 960 ........................... 417.5 10,020 20 hr .................. ........................... ........................... 480 hr ................ ........................... ........................... 104 52 hr 2,496 1,248 hr 2 hr .................... 48 hr .................. 80 hr .................. $84,000 ............. 240 hr ................ $252,000 * (A) Twelve U.S. dealing entities may book future security-based swaps with non-U.S. counterparties into non-U.S. affiliates. (B) Two non-U.S. entities may fall below the de minimis threshold if ‘‘arranged, negotiated, or executed’’ transactions are not counted. (C) Ten additional non-U.S. entities may make use of the exception to avoid incurring assessment costs in connection with the ‘‘arranged, negotiated, or executed’’ de minimis test. 5. Collection of Information Is Mandatory The collections of information associated with the proposed amendments to Rule 3a71–3 are mandatory to the availability of the exception. khammond on DSKBBV9HB2PROD with PROPOSALS2 6. Confidentiality Any disclosures to be provided in connection with the arranging, negotiating or executing of a registered security-based swap dealer or of a registered broker (depending on the alternative adopted) in compliance with the requirements of the proposed exception would be provided to the non-U.S. counterparties of the non-U.S. person relying on this exception; therefore, the Commission would not typically receive confidential information as a result of this collection of information. To the extent that the Commission receives records related to such disclosures from a registered security-based swap dealer or registered broker through the Commission’s examination and oversight program, or through an investigation, or some other means, such information would be kept confidential, subject to the provisions of applicable law. Any applications for listed jurisdiction status will be made public. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 7. Retention Period of Recordkeeping Requirements By virtue of being registered as a security-based swap dealer and/or as a broker (depending on the alternative), the entity-engaged in market facing conduct in the United States will be required to retain the records and information required under the proposed amendment to Rule 3a71–3 for the retention periods specified in Exchange Act Rules 17a–4 and 18a–6, as applicable.555 B. Proposed Modifications to Proposed Rule 18a–5 1. Summary of Collections of Information To Be Modified The Commission is proposing to modify proposed Rule 18a–5—which is modeled on Exchange Act Rule 17a–3, as amended—with respect to the requirement that stand-alone and bank 555 The registered entity would have to create and/or maintain certain records in connection with the following proposed conditions (in conjunction with proposed Commission books and record rules and rule amendments related to Title VII): Disclosure of limited Title VII applicability; business conduct; trade acknowledgement and verification; portfolio reconciliation; obtaining and maintaining relationship documentation and questionnaires; consent to service of process. The proposed conditions do not require the nonU.S. person relying on the exception to make or retain any particular types of records (although that non-U.S. person will be required to convey existing trading relationship documentation to its registered affiliate). PO 00000 Frm 00081 Fmt 4701 Sfmt 4702 SBS Entities make and keep current certain records.556 The proposed modifications to proposed Rule 18a–5 would reduce the burden associated with Rule 18a–5, as originally proposed, by providing generally that a standalone or bank SBS Entity need not: (i) Make and keep current a questionnaire or application for employment for an associated person if the SBS Entity is excluded from the prohibition under Exchange Act Section 15F(b)(6) with respect to such associated person (e.g., the exclusion proposed in Rule of Practice 194(c)(2)), and (ii) include the information generally required to be included on the questionnaire or application for employment executed by an associated person if the associated person is not a U.S. person and the receipt of that information, or the creation or maintenance of records reflecting that information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located. 2. Use of Information Proposed Rule 18a–5, as proposed to be modified, is designed, among other things, to promote the prudent operation of SBS Entities, and to assist the Commission, SROs, and state securities regulators in conducting 556 See proposed Rule 18a–5, Recordkeeping and Reporting Proposing Release. E:\FR\FM\24MYP2.SGM 24MYP2 24286 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules effective examinations.557 Thus, the collections of information under proposed Rule 18a–5 are expected to facilitate inspections and examinations of SBS Entities. 3. Respondents khammond on DSKBBV9HB2PROD with PROPOSALS2 The Commission estimated the number of respondents in the Recordkeeping and Reporting Proposing Release. The Commission received no comment on these estimates and continues to believe they are appropriate. Consistent with the Recordkeeping and Reporting Proposing Releases, based on available data regarding the single-name CDS market—which the Commission believes will comprise the majority of security-based swaps—the Commission estimates that the number of major security-based swap participants likely will be five or fewer and, in actuality, may be zero.558 Therefore, to capture the likely number of major security-based swap participants that may be subject to the collections of information for purposes of this PRA, the Commission estimates for purposes of this PRA that five entities will register with the Commission as major security-based swap participants. Also consistent with the Recordkeeping and Reporting Proposing Release, the Commission estimates that approximately four major security-based swap participants will be stand-alone entities.559 Consistent with prior releases, the Commission estimates that 50 or fewer entities ultimately may be required to register with the Commission as security-based swap dealers, of which 16 are broker-dealers that will likely seek to register as security-based swapdealers.560 561 The Commission 557 As noted above, proposed Rule 18a–5 is patterned after Exchange Act Rule 17a–3, the recordkeeping rule for registered broker-dealers. See, e.g., Books and Records Requirements for Brokers and Dealers Under the Securities Exchange Act of 1934, Exchange Act Release No. 47910 (Oct. 26, 2001), 66 FR 55818 (Nov. 2, 2001) (‘‘The Commission has required that broker-dealers create and maintain certain records so that, among other things, the Commission, [SROs], and State Securities Regulators . . . may conduct effective examinations of broker-dealers’’ (footnote omitted)). 558 See Recordkeeping and Reporting Proposing Release, 79 FR at 25260; see also Registration Process for Security-Based Swap Dealers and Major Security-Based Swap Participants; Final Rule, 80 FR at 48990; Further Definition of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap Dealer,’’ ‘‘Major Swap Participant,’’ ‘‘Major Security-Based Swap Participant’’ and ‘‘Eligible Contract Participant’’ Exchange Act Release No. 66868 (Apr. 27, 2012), 77 FR 30596 at 30727 (May 23, 2012). 559 See Recordkeeping and Reporting Proposing Release, 79 FR at 25260. 560 See Recordkeeping and Reporting Proposing Release, 79 FR at 25260. VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 continues to estimate that approximately 75% of the 34 nonbroker-dealer security-based swap dealers (i.e., 25 firms) will register as bank security-based swap dealers, and the remaining 25% (i.e., 9 firms) will register as stand-alone security-based swap dealers.562 Further, the Commission continues to estimate that each security-based swap dealer will employ approximately 420 associated persons that are natural persons and each major security-based swap participant will employ approximately 62 associated persons that are natural persons.563 The Commission has no data regarding how many associated persons of SBS Entities who are non-U.S. natural persons may: (a) Not effect or be involved in effecting security-based swap transactions with or for counterparties that are U.S. persons (other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person); (b) effect or be involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, but who may be employed or located in jurisdictions where the receipt of information required by the questionnaire or employment application, or the creation or maintenance of records reflecting that information, would result in a violation of applicable law; or (c) effect or be involved in effecting security-based swap transactions with or for counterparties that are U.S. persons, who are employed or located in jurisdictions where local law would not restrict the receipt, creation or maintenance of information required by the questionnaire or employment application. Given that, the Commission will estimate, for purposes of this Paperwork Reduction Act analysis, that non-U.S. associated persons are evenly split into each of these categories. 561 See Registration Process for Security-Based Swap Dealers and Major Security-Based Swap Participants; Final Rule, 80 FR at 79002. 562 See Recordkeeping and Reporting Proposing Release, 79 FR at 25261. The Commission does not anticipate that any firms will be dually registered as a broker-dealer and a bank. 563 Id. 1 See Rule of Practice 194 Adopting Release, 84 FR at 4926. Commission staff also checked with the staff at the National Futures Association regarding an approximate number of associated persons employed by registered swap dealers. NFA staff provided anecdotal information indicating that the number of natural persons that are associated persons of swap dealers is substantially similar to Commission staff estimates. NFA staff further indicated that they believe about half of the total number of natural persons that are associated persons of swap dealers are located in the U.S. and the other half are located in foreign jurisdictions. PO 00000 Frm 00082 Fmt 4701 Sfmt 4702 4. Total Initial and Annual Recordkeeping and Reporting Burden As indicated in the Recordkeeping and Reporting Proposing Release, proposed Rule 18a–5 will impose collection of information requirements that result in initial and annual burdens for SBS Entities. The proposed modifications to Rule 18a–5 will decrease these burdens for certain SBS Entities. In the Recordkeeping and Reporting Proposing Release, the Commission indicated that proposed Rule 18a–5 would require that stand-alone SBS Entities make and keep current 13 types of records, including records on associated persons,564 and estimated that those 13 paragraphs would impose on each firm an initial burden of 260 hours and an ongoing annual burden of 325 hours.565 In addition, the Commission indicated that proposed Rule 18a–5 would require that bank SBS Entities make and keep current 10 types of records, including records on associated persons,566 and estimated that these ten paragraphs will impose on each firm an initial burden of 200 hours per firm and an ongoing burden of 250 hours per firm.567 The Commission further stated that while proposed Rule 18a–5 would impose a burden to make and keep current these records, it would not require the firm to perform the underlying task.568 The Commission received no comments regarding its hour and cost burden estimates for proposed Rule 564 See paragraph (a)(10) of proposed Rule 18a– 5, Recordkeeping and Reporting Proposing Release, 79 FR at 25308. 565 See Recordkeeping and Reporting Proposing Release, 79 FR at 25264. Of these total initial and ongoing annual burdens for the 13 types of records a firm would be required to make and keep current under paragraph (a)(10) of proposed Rule 18a–5, Commission staff believes that the burdens associated with making and keeping current questionnaires or applications for employment would be an initial burden of 20 hours (or 260/13) and an ongoing burden of 25 hours (or 325/13). 566 See paragraph (b)(8) of proposed Rule 18a–5; Recordkeeping and Reporting Proposing Release, 79 FR at 25309–10. 567 See id. at 25264. Of these total initial and ongoing annual burdens for the 10 types of records a firm would be required to make and keep current under paragraph (b)(8) of proposed Rule 18a–5, Commission staff believes that the burdens associated with making and keeping current questionnaires or applications for employment would be an initial burden of 20 hours (or 200/10) and an ongoing burden of 25 hours (or 250/10). 568 In estimating the burden associated with Rule 18a–5, the Commission recognizes that entities that will register stand-alone SBS Entities likely make and keep current some records today as a matter of routine business practice, but the Commission does not have information about the records that such entities currently keep. Therefore, the Commission assumes that these entities currently keep no records when it estimates the PRA burden for these entities. E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS2 18a–5 and continues to believe they are appropriate. The proposed modifications to paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5 would (a) exempt stand-alone and bank SBS Entities from the requirement to make and keep current a questionnaire or application for employment for an associated person if the SBS Entity is excluded from the prohibition in section 15F(b)(6) of the Exchange Act with respect to the associated person (e.g., the exclusion proposed in Rule of Practice 194(c)(2)), and (b) allow SBS Entities to exclude certain information from their associated person records if receipt of that information or the creation or maintenance of records reflecting that information would result in a violation of applicable law in the jurisdiction where the associated person is employed or located. Proposed Addition of Paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) The Commission estimates that the proposed modification to add paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) to proposed Rule 18a–5 would eliminate the paperwork burden for stand-alone and bank security-based swap dealers and major security-based swap participants associated with making and keeping current questionnaires or applications for employment records, otherwise required by proposed Rule 18a–5, with respect to any associated person if the SBS Entity is excluded from the prohibition in Exchange Act Section 15F(b)(6), including the exclusion proposed in Rule of Practice 194(c)(2) with respect to a natural person who is (i) not a U.S. person and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons (other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person). As indicated above, the Commission estimates that there will be approximately 4 stand-alone major security-based swap participants, 9 stand-alone security-based swap dealers and 25 bank security-based swap dealers. Further, as indicated above, each security-based swap dealer would have approximately 420 associated persons and half of those associated persons, or 210, would not be employed or located in the U.S. The Commission estimates that stand-alone and bank SBS dealers would not need to obtain the questionnaire or application for employment for one third of those associated persons, or 70, because VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 proposed Rule of Practice 194(c)(2) would provide an exclusion from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to associated persons who are not located in the U.S. and do not effect and are not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons (other than a security-based swap transaction conducted through a foreign branch of a counterparty that is a U.S. person).569 Similarly, as indicated above, each major security-based swap participant would have approximately 62 associated persons and half of those associated persons, or 31, would not be employed or located in the U.S. The Commission estimates that stand-alone and bank major security-based swap participants would not need to obtain the questionnaire or application for employment for one third of those associated persons, or 10, because proposed Rule of Practice 194(c)(2) would provide an exclusion from the prohibition in Section 15F(b)(6) of the Exchange Act with respect to those associated persons.570 Given this, the addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) to proposed Rule 18a–5 would reduce the initial burden associated with proposed Rule 18a–5 by 127 hours 571 and it 569 70 associated persons/420 associated persons per security-based swap dealer = a reduction of approximately 16.7%. Security-based swap dealers would be able to utilize this paragraph relative to other exclusions from the requirements of Exchange Act Section 15F(b)(6) that the Commission may provide, however the analysis is focusing solely on the exclusion provided by proposed new paragraph (c)(2) to Rule of Practice 194 for purposes of the Paperwork Reduction Act estimate. 570 10 associated persons/62 associated persons per major security-based swap participant = a reduction of approximately 16.1%. Major securitybased swap participants would be able to utilize this paragraph relative to other exclusions from the requirements of Exchange Act Section 15F(b)(6) that the Commission may provide, however the analysis is focusing solely on the exclusion provided by proposed new paragraph (c)(2) to Rule of Practice 194 for purposes of this Paperwork Reduction Act estimate. 571 Initial burden hours associated with paragraphs (a)(10) and (b)(8) of proposed Rule 18a– 5 for stand-alone and bank security-based swap dealers and major security-based swap participants, as proposed— 20 hours × [9 stand-alone security-based swap dealers + 25 bank security-based swap dealers] = 20 hours × 34 security-based swap dealers = 680 initial burden hours for security-based swap dealers. 20 hours × 4 stand-alone major security-based swap participants = 80 initial burden hours for major security-based swap participants. Initial burden hour reduction: 680 initial burden hours for security-based swap dealers × 16.7% (see supra note 569) = 114 hours. 80 initial burden hours for major security-based swap participants × 16.1% (see supra note 570) = 13 hours. A 114 hour reduction in the initial burden for security-based swap dealers + a 13 hour reduction in the initial burden for major security- PO 00000 Frm 00083 Fmt 4701 Sfmt 4702 24287 would reduce the ongoing burden associated with proposed Rule 18a–5 by 158 hours.572 Proposed Addition of Paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) The Commission estimates that the proposed modification to add paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a–5 would decrease the paperwork burden for stand-alone and bank SBS Entities by permitting the exclusion of certain information mandated by the questionnaire requirement with respect to associated natural persons who effect or are involved in effecting securitybased swap transactions with U.S. counterparties where the receipt of that information, or the creation or maintenance of records reflecting such information, would result in a violation of applicable law in the jurisdiction where the associated person is employed or located. As indicated above, the Commission estimates that there will be approximately 4 stand-alone major security-based swap participants, 9 stand-alone security-based swap dealers and 25 bank security-based swap dealers. Further, as indicated above, each security-based swap dealer would have approximately 420 associated persons and half of those associated persons, or 210, would not be employed or located in the U.S. The Commission estimates that these new paragraphs would permit stand-alone and bank security-based swap dealers to exclude certain information mandated by the questionnaire requirement for approximately one third of those based swap participants = a 127 hour reduction in initial burden hours across all entities able to rely on paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5. 572 Ongoing burden hours associated with paragraph (a)(10) and (b)(8) of proposed Rule 18a– 5 for stand-alone and bank security-based swap dealers and major security-based swap participants, as proposed— 25 hours × [9 stand-alone security-based swap dealers + 25 bank security-based swap dealers] = 20 hours × 34 security-based swap dealers = 850 ongoing burden hours for security-based swap dealers. 25 hours × 4 stand-alone major security-based swap participants = 100 ongoing burden hours for major security-based swap participants. Ongoing burden hour reduction: 850 ongoing burden hours for security-based swap dealers × 16.7% (see supra note 569) = 142 hours. 100 ongoing burden hours for major securitybased swap participants × 16.1% (see supra note 570) = 16 hours. A 142 hour reduction in the ongoing burden for security-based swap dealers + a 16 hour reduction in the ongoing burden for major security-based swap participants = a 158 hour reduction in ongoing burden hours across all entities able to rely on paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5. E:\FR\FM\24MYP2.SGM 24MYP2 24288 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules associated persons, or 70.573 Similarly, as indicated above, each major securitybased swap participant would have approximately 62 associated persons and half of those associated persons, or 31, would not be employed or located in the U.S. The Commission estimates that these new paragraphs would permit stand-alone and bank major securitybased swap participants to exclude certain information mandated by the questionnaire requirement for approximately one third of those associated persons, or 10.574 The Commission estimates that this will reduce the burdens associated with obtaining the information specified in the questionnaire requirement by 50% for the affected associated persons. Given this, the addition of paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a–5 would reduce the initial burden associated with proposed Rule 18a–5 by 63 hours 575 and would reduce the ongoing burden associated with proposed Rule 18a–5 by 79 hours.576 573 See note 569, supra. note 570, supra. 575 Initial burden hours associated with paragraphs (a)(10) and (b)(8) of proposed Rule 18a– 5 for stand-alone and bank security-based swap dealers and major security-based swap participants, as proposed— 20 hours × [9 stand-alone security-based swap dealers + 25 bank security-based swap dealers] = 20 hours × 34 security-based swap dealers = 680 initial burden hours for security-based swap dealers. 20 hours × 4 stand-alone major security-based swap participants = 80 initial burden hours for major security-based swap participants. Initial burden hour reduction: [680 initial burden hours for security-based swap dealers × 16.7% (see supra note 569 × 50%] = 57 hours. [80 initial burden hours for major securitybased swap participants × 16.1% (see supra note 570) × 50%] = 6 hours. A 57 hour reduction in the initial burden for security-based swap dealers + a 6 hour reduction in the initial burden for major security-based swap participants = a 63 hour reduction in initial burden hours across all entities able to rely on paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5. 576 Ongoing burden hours associated with paragraph (a)(10) and (b)(8) of proposed Rule 18a– 5 for stand-alone and bank security-based swap dealers and major security-based swap participants, as proposed— 25 hours × [9 stand-alone security-based swap dealers + 25 bank security-based swap dealers] = 20 hours × 34 security-based swap dealers = 850 ongoing burden hours for security-based swap dealers. 25 hours × 4 stand-alone major security-based swap participants = 100 ongoing burden hours for major security-based swap participants. Ongoing burden hour reduction: [850 ongoing burden hours for security-based swap dealers × 16.7% (see supra note 569) × 50%] = 71 hours. [100 ongoing burden hours for major security-based swap participants × 16.1% (see supra note 570) × 50%] = 8 hours. A 71 hour reduction in the ongoing burden for security-based swap dealers + a 8 hour reduction in the ongoing burden for major security-based swap participants = a 79 hour reduction in ongoing burden hours khammond on DSKBBV9HB2PROD with PROPOSALS2 574 See VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 Thus, in total, the addition of both paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) and paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) would reduce the initial burden associated with the questionnaire requirement in proposed Rule 18a–5 by 190 hours,577 and the ongoing burden associated with the questionnaire requirement in proposed Rule 18a–5 by 237 hours.578 5. Collection of Information Is Mandatory The collections of information pursuant to the proposed modifications to the proposed new rule would be mandatory, as applicable, for SBS Entities. 6. Confidentiality Information that an SBS Entity would be required to make and keep current under proposed Rule 18a–5 would be maintained by the firm. To the extent that the Commission collects such records during an inspection or examination of a registered SBS Entity, or through some other means, such records would generally be kept confidential, subject to the provisions of applicable law.579 7. Retention Period for Recordkeeping Requirements Proposed Rule 18a–6 would establish the required retention periods for SBS Entities to maintain records collected in accorded with proposed Rule 18a–5.580 Under paragraph (d)(1) of proposed Rule 18a–6, an SBS Entity would be required to maintain and preserve in an easily accessible place the records required under paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5 until at least three years after the associated person’s employment and any other connection with the SBS Entity has terminated. C. Request for Comment Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comment to: across all entities able to rely on paragraphs (a)(10) and (b)(8) of proposed Rule 18a–5. 577 A 127 hour reduction in initial burden hours associated with the addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) and a 63 hour reduction in initial burden hours associated with the addition of paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) = a 190 hour reduction in initial burden hours. 578 A 158 hour reduction in ongoing burden hours associated with the addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) and a 79 hour reduction in ongoing burden hours associated with the addition of paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) = a 237 hour reduction in ongoing burden hours. 579 See, e.g., 5 U.S.C. 552 et seq.; 15 U.S.C. 78x (governing the public availability of information obtained by the Commission). 580 See proposed Rule 18a–6, Recordkeeping and Reporting Proposing Release. PO 00000 Frm 00084 Fmt 4701 Sfmt 4702 • Evaluate whether the proposed collection of information is necessary for the proper performance of the Commission’s functions, including whether the information shall have practical utility; • Evaluate the accuracy of the Commission’s estimate of the burden of the proposed collection of information; • Determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and • Evaluate whether there are ways to minimize the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology. In addition, the Commission requests comment, including empirical data in support of comments, in response to the following questions: • Are the Commission’s estimates regarding the numbers of respondents relative to the proposed modifications to proposed Rule 18a–5 accurate? If so, please provide empirical support for the Commission’s estimate. If not, please provide a suggested estimate and empirical support for it. • Are the Commission’s estimates regarding the amount of time it would take to make and keep current the questionnaire or application for employment or other related records accurate? If so, please provide empirical support for the Commission’s estimate. If not, please provide a suggested estimate and empirical support for it. • Do stand-alone SBS Entities already have established record making and record preservation systems? If so, please explain those systems so they can be taken into account in the Commission’s burden estimates. Persons submitting comments on the collection of information requirements should direct them to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should also send a copy of their comments to [ ], Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090, with reference to File Number [ ]. Requests for materials submitted to OMB by the Commission with regard to this collection of information should be in writing, with reference to File Number [ ] and be submitted to the Securities and Exchange Commission, Office of FOIA/PA Services, 100 F Street NE, Washington, DC 20549–2736. As OMB is required to make a decision concerning the collection of information E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules between 30 and 60 days after publication, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. IX. Consideration of Impact on the Economy For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (‘‘SBREFA’’) 581 the Commission requests comment on the potential effect of this proposal on the United States economy on an annual basis. The Commission also requests comment on any potential increases in costs or prices for consumers or individual industries, and any potential effect on competition, investment, or innovation. Commenters are requested to provide empirical data and other factual support for their views to the extent possible. khammond on DSKBBV9HB2PROD with PROPOSALS2 X. Regulatory Flexibility Act Certification Section 3(a) of the Regulatory Flexibility Act of 1980 (‘‘RFA’’) 582 requires the Commission to undertake an initial regulatory flexibility analysis of the impact of the proposed rule amendments on small entities unless the Commission certifies that the rule, if adopted, would not have a significant impact on a substantial number of ‘‘small entities.’’ 583 For purposes of Commission rulemaking in connection with the RFA,584 a small entity includes: (1) When used with reference to an ‘‘issuer’’ or a ‘‘person,’’ other than an investment company, an ‘‘issuer’’ or ‘‘person’’ that, on the last day of its most recent fiscal year, had total assets of $5 million or less; 585 or (2) a broker-dealer with total capital (net worth plus subordinated liabilities) of less than $500,000 on the date in the prior fiscal year as of which its audited financial statements were prepared pursuant to Rule 17a–5(d) under the Exchange Act,586 or, if not required to file such statements, a broker-dealer with total capital (net worth plus subordinated 581 Public Law 104–121, Title II, 110 Stat. 857 (1996) (codified in various sections of 5 U.S.C., 15 U.S.C. and as a note to 5 U.S.C. 601). 582 5 U.S.C. 603(a). 583 5 U.S.C. 605(b). 584 Although Section 601(b) of the RFA defines the term ‘‘small entity,’’ the statute permits agencies to formulate their own definitions. The Commission has adopted definitions for the term ‘‘small entity’’ for the purposes of Commission rulemaking in accordance with the RFA. Those definitions, as relevant to this proposed rulemaking, are set forth in Rule 0–10 under the Exchange Act, 17 CFR 240.0–10. See Exchange Act Release No. 18451 (Jan. 28, 1982), 47 FR 5215 (Feb. 4, 1982) (File No. AS– 305). 585 See 17 CFR 240.0–10(a). 586 See 17 CFR 240.17a–5(d). VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 liabilities) of less than $500,000 on the last day of the preceding fiscal year (or in the time that it has been in business, if shorter); and is not affiliated with any person (other than a natural person) that is not a small business or small organization.587 Under the standards adopted by the Small Business Administration, small entities in the finance and insurance industry include the following: (i) For entities engaged in credit intermediation and related activities, entities with $175 million or less in assets; 588 (ii) for entities engaged in non-depository credit intermediation and certain other activities, entities with $7 million or less in annual receipts;– 589 (iii) for entities engaged in financial investments and related activities, entities with $7 million or less in annual receipts; 590 (iv) for insurance carriers and entities engaged in related activities, entities with $7 million or less in annual receipts; 591 and (v) for funds, trusts, and other financial vehicles, entities with $7 million or less in annual receipts.592 For purposes of the proposed exception to Exchange Act rule 3a71–3, the Commission continues to believe that the types of entities that would engage in more than a de minimis amount of dealing activity involving security-based swaps would not be ‘‘small entities’’ for purposes of the RFA.593 Moreover, based on feedback from market participants and information about the security-based swap markets, the Commission expects that all of the firms that are likely to make use of the proposed exception to Rule 3a71–3—are part of large financial institutions that exceed the thresholds defining ‘‘small entities’’ as set forth above.594 As discussed, the proposed exception to Exchange Act Rule 3a71–3 would be subject to conditions requiring arranging, negotiating or executing activity to be conducted by affiliated registered security-based swap dealers (under alternatives 1 or 2) or by 587 See 17 CFR 240.0–10(c). 13 CFR 121.201 (Subsector 522). 589 See id. at Subsector 522. 590 See id. at Subsector 523. 591 See id. at Subsector 524. 592 See id. at Subsector 525. 593 See Cross-Border Adopting Release, 79 FR at 47368. 594 See part VII.A.7, supra (discussing persons potentially likely to use the proposed exception to Rule 3a71–3); see also U.S. Activity Proposing Release, 80 FR at 27508 (‘‘we believe that firms that are likely to engage in security-based swap dealing activity at levels that may lead them to perform de minimis calculations under the ‘‘security-based swap dealer’’ definition are large financial institutions that exceed the thresholds defining ‘‘small entities’’). 588 See PO 00000 Frm 00085 Fmt 4701 Sfmt 4702 24289 affiliated registered brokers or securitybased swap dealers (under alternative 2) that are affiliated with the non-U.S. persons relying on the exception. It is possible that some non-U.S. persons may set up new security-based swap dealers or new brokers to make use of the exception, while recognizing that other non-U.S. persons that seek to make use of the proposed exception instead may make use of affiliated security-based swap dealers that have an additional business of engaging in dealing activity above the de minimis thresholds with U.S. counterparties (under either alternative), or would make use of existing affiliated registered broker-dealers (under alternative 2).595 By definition, any such affiliated existing or new broker-dealer would not be a ‘‘small entity.’’ 596 Moreover, even in the unlikely event that some non-U.S. persons were to satisfy the exception’s conditions via the use of affiliated registered security-based swap dealers that fall within the definition of ‘‘small entity’’ for purposes of the RFA,597 the Commission preliminarily believes that there would not be a substantial number of such entities.598 Based on feedback from industry participants about the security-based swap markets, the Commission continues to believe that entities that will qualify as SBS Entities exceed the thresholds defining ‘‘small entities.’’ Thus, the Commission believes that any SBS Entities that may seek to rely on the proposed amendment to Rule 15Fb2–1 595 See part VII.A.7, supra (discussing likely broker-dealer or security-based swap dealer affiliates of persons expected to rely on exemption). 596 The ‘‘small entity’’ definition applied to broker-dealers excludes broker-dealers that are affiliated with a person that is not a ‘‘small entity.’’ See Exchange Act Rule 0–10(c)(2), (i)(1) (basing affiliation on an 25 percent ownership standard that is narrower than the majority ownership standard used in connection with this proposed conditional exception). Because the non-U.S. persons relying on this exception would not be ‘‘small entities,’’ any such affiliated broker also would not be a ‘‘small entity.’’ 597 As noted, if the person engaged in marketfacing activity in the United States is a registered security-based swap dealer (as required by alternative 1 and permitted by alternative 2) that has an additional business of engaging in dealing activity above the de minimis thresholds with U.S. counterparties, the Commission preliminarily believes that the person would not be a ‘‘small entity.’’ 598 Similarly, the Commission preliminarily believes that there would not be a significant number of ‘‘small entities’’ that may file ‘‘listed jurisdiction’’ applications pursuant to the proposed amendments to Exchange Act Rule 0–13. This conclusion reflects the same reasons, as well as the expectation that the majority of such applications would be filed by foreign authorities. E:\FR\FM\24MYP2.SGM 24MYP2 24290 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules would not be ‘‘small entities’’ for purposes of the RFA.599 The Commission also continues to believe that any SBS Entities—i.e., registered security-based swap dealers and registered major security-based swap participants—with associated persons that may be the subject of the proposed amendments to Rule of Practice 194 would not be ‘‘small entities’’ for purposes of the RFA.600 The Commission further continues to believe that it is unlikely that the requirements applicable to SBS Entities that would be established under the proposed modifications to proposed Rule 18a-5 would have a significant economic impact on any small entity because no SBS Entity will be a small entity.601 Accordingly, the Commission preliminarily believes that it is unlikely that the proposed amendments regarding the security-based swap dealer cross-border de minimis counting requirement and regarding associated persons of SBS Entities would have a significant economic impact on a substantial number of small entities.602 For the foregoing reasons, the Commission certifies that the proposed amendments to Exchange Act Rules 3a71–3, 15Fb2–1, 0–13, and Rule of Practice 194 and the proposed modifications to proposed Rule 18a–5 would not have a significant economic impact on a substantial number of small entities for purposes of the RFA. The Commission encourages written comments regarding this certification, and requests that commenters describe the nature of any impact on small entities and provide empirical data to illustrate the extent of the impact. XI. Statutory Basis and Text of Proposed Rules Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and particularly khammond on DSKBBV9HB2PROD with PROPOSALS2 599 See 49013. 600 We previously have concluded, based on feedback from market participants and the Commission’s information regarding the securitybased swap market, that the types of entities that may have security-based swap positions above the level required to register as SBS Entities would not be ‘‘small entities’’ for purposes of the RFA. See Cross-Border Adopting Release, 79 FR at 47368; see also ‘‘Applications by Security-based Swap Dealers or Major Security-Based Participants for Statutorily Disqualified Associated Persons to Effect or Be Involved in Effecting Security-Based Swaps,’’ 80 FR 51684 (Aug 25, 2015), at 51718, and Rule of Practice 194 Adopting Release, 84 FR at 4944. 601 See Recordkeeping and Reporting Proposing Release, 79 FR at 25296. 602 See also parts VI (Economic Analysis) and VII (Paperwork Reduction Act) (discussing, among other things, the economic impact, including the estimated compliance costs and burdens, of the amendments). 18:16 May 23, 2019 Jkt 247001 List of Subjects 17 CFR Part 201 Administrative practice and procedure, Brokers, Claims, Confidential business information, Equal access to justice, Lawyers, Penalties, Securities. 17 CFR Part 240 Brokers, Confidential business information, Fraud, Reporting and recordkeeping requirements, Securities. Text of Proposed Rules For the reasons stated in the preamble, the SEC is proposing to amend Title 17, Chapter II of the Code of the Federal Regulations as follows: PART 201—RULES OF PRACTICE 1. The general authority citation for Subpart D is revised to read as follows: ■ Authority: 15 U.S.C. 77f, 77g, 77h, 77h– 1, 77j, 77s, 77u, 77sss, 77ttt, 78(c)(b), 78d–1, 78d–2, 78l, 78m, 78n, 78o(d), 78o–3, 78o– 10(b)(6), 78s, 78u–2, 78u–3, 78v, 78w, 80a– 8, 80a–9, 80a–37, 80a–38, 80a–39, 80a–40, 80a–41, 80a–44, 80b–3, 80b–9, 80b–11, 80b– 12, 7202, 7215, and 7217. * * * * * 2. Amend § 201.194 by re-designating paragraph (c) as paragraph (c)(1), adding a new heading to paragraph (c) and paragraph (c)(2) to read as follows: ■ § 201.194 Applications by Security-Based Swap Dealers or Major Security-Based Swap Participants for Statutorily Disqualified Associated Persons To Effect or Be Involved In Effecting Security-Based Swaps. Registration Adopting Release, 80 FR at VerDate Sep<11>2014 Sections 3(a)(71), 3(b), 15F (as added by Section 764(a) of the Dodd-Frank Act), 17(a), 23(a), and 30(c) thereof, and Section 761(b) of the Dodd-Frank Act, the Commission is proposing to amend Rule of Practice 194 and Rules 0–13, 3a71–3, 15Fb2–1, and proposing to modify proposed Rule 18a-5 under the Exchange Act. * * * * * (c) Exclusions. (1) * * *. (2) Exclusion for Certain Associated Natural Persons. A security-based swap dealer or major security-based swap participant shall be excluded from the prohibition in Section 15F(b)(6) of the Exchange Act (15 U.S.C. 78o–10(b)(6)) with respect to an associated person who is a natural person who (i) is not a U.S. person (as defined in 17 CFR 240.3a71–3(a)(4)(i)(A)) and (ii) does not effect and is not involved in effecting security-based swap transactions with or for counterparties that are U.S. persons (as defined in 17 CFR 240.3a71– 3(a)(4)), other than a security-based swap transaction conducted through a PO 00000 Frm 00086 Fmt 4701 Sfmt 4702 foreign branch (as that term is defined in 17 CFR 240.3a71–3(a)(3)) of a counterparty that is a U.S. person; provided, however, that this exclusion shall not be available if the associated person of that security-based swap dealer or major security-based swap participant is currently subject to any order described in subparagraphs (A) and (B) of Section 3(a)(39) of the Exchange Act, with the limitation that an order by a foreign financial regulatory authority described in subparagraphs (B)(i) and (B)(iii) of Section 3(a)(39) (15 U.S.C. 78c(a)(39)(B)(i) and (B)(iii)) shall only apply to orders by a foreign financial regulatory authority in the jurisdiction where the associated person is employed or located. * * * * * PART 240—GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934 3. The general authority citation for part 240 continues to read as follows: ■ Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c–3, 78c–5, 78d, 78e, 78f, 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m, 78n, 78n–1, 78o, 78o–4, 78o–10, 78p, 78q, 78q–1, 78s, 78u–5, 78w, 78x, 78ll, 78mm, 80a–20, 80a–23, 80a–29, 80a–37, 80b–3, 80b– 4, 80b–11, 7201 et seq.; and 8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350; and Pub. L. 111–203, 939A, 124 Stat. 1887 (2010); and secs. 503 and 602, Pub. L. 112–106, 126 Stat. 326 (2012), unless otherwise noted. * * * * * 4. Amend § 240.0–13 by revising the heading and paragraphs (a), (b) and (e) to read as follows: ■ § 240.0–13 Commission procedures for filing applications to request a substituted compliance or listed jurisdiction order under the Exchange Act. (a) The application shall be in writing in the form of a letter, must include any supporting documents necessary to make the application complete, and otherwise must comply with § 240.0–3. All applications must be submitted to the Office of the Secretary of the Commission, by a party that potentially would comply with requirements under the Exchange Act pursuant to a substituted compliance or listed jurisdiction order, or by the relevant foreign financial regulatory authority or authorities. If an application is incomplete, the Commission may request that the application be withdrawn unless the applicant can justify, based on all the facts and circumstances, why supporting materials have not been submitted and E:\FR\FM\24MYP2.SGM 24MYP2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules undertakes to submit the omitted materials promptly. (b) An applicant may submit a request electronically. The electronic mailbox to use for these applications is described on the Commission’s website at www.sec.gov in the ‘‘Exchange Act Substituted Compliance and Listed Jurisdiction Applications’’ section. In the event electronic mailboxes are revised in the future, applicants can find the appropriate mailbox by accessing the ‘‘Electronic Mailboxes at the Commission’’ section. * * * * * (e) Every application (electronic or paper) must contain the name, address, telephone number, and email address of each applicant and the name, address, telephone number, and email address of a person to whom any questions regarding the application should be directed. The Commission will not consider hypothetical or anonymous requests for a substituted compliance or listed jurisdiction order. Each applicant shall provide the Commission with any supporting documentation it believes necessary for the Commission to make such determination, including information regarding applicable requirements established by the foreign financial regulatory authority or authorities, as well as the methods used by the foreign financial regulatory authority or authorities to monitor and enforce compliance with such rules. Applicants should also cite to and discuss applicable precedent. * * * * * ■ 5. Amend § 240.3a71–3 by adding paragraphs (a)(10), (a)(11), and (a)(12), amending paragraph (b)(1)(iii)(C), and adding paragraph (d) to read as follows: khammond on DSKBBV9HB2PROD with PROPOSALS2 § 240.3a71–3 Cross-border security-based swap dealing activity. (a) * * * (10) An entity is a majority-owned affiliate of another entity if the entity directly or indirectly owns a majority interest in the other, or if a third party directly or indirectly owns a majority interest in both entities, where ‘‘majority interest’’ is the right to vote or direct the vote of a majority of a class of voting securities of an entity, the power to sell or direct the sale of a majority of a class of voting securities of an entity, or the right to receive upon dissolution, or the contribution of, a majority of the capital of a partnership. (11) Foreign associated person means a natural person domiciled outside the United States who—with respect to a non-U.S. person relying on the exception set forth in paragraph (d) of this section—is a partner, officer, director, or branch manager of such VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 non-U.S. person (or any person occupying a similar status or performing similar functions), any person directly or indirectly controlling, controlled by, or under common control with such non-U.S. person, or any employee of such non-U.S. person. (12) Listed jurisdiction means any jurisdiction that the Commission by order has designated as a listed jurisdiction for purposes of the exception specified in paragraph (d) of this section. (b) * * * (1) * * * (iii) * * * (C) Except as provided in paragraph (d) of this section, or unless such person is a person described in paragraph (a)(4)(iii) of this section, security-based swap transactions connected with such person’s security-based swap dealing activity that are arranged, negotiated, or executed by personnel of such non-U.S. person located in a U.S. branch or office, or by personnel of an agent of such non-U.S. person located in a U.S. branch or office; and * * * * * Alternative 1 (d) Exception from counting certain transactions. The counting requirement described by paragraph (b)(1)(iii)(C) of this section will not apply to the security-based swap dealing transactions of a non-U.S. person if the conditions of paragraph (d)(1) of this section have been satisfied. (1) Conditions. (i) Entity conducting U.S. activity. All activity that otherwise would cause a security-based swap transaction to be described by paragraph (b)(1)(iii)(C) of this section—namely, all arranging, negotiating or executing activity that is conducted by personnel of the entity (or its agent) located in a branch or office in the United States— is conducted by such U.S. personnel in their capacity as persons associated with an entity that: (A) Is registered with the Commission as a security-based swap dealer; and (B) Is a majority-owned affiliate of the non-U.S. person relying on this exception. (ii) Compliance with specified security-based swap dealer requirements. (A) Compliance required. In connection with such transactions, the registered entity described in paragraph (d)(1)(i) of this section complies with the requirements described in paragraph (d)(1)(ii)(B) of this section as if the counterparties to the non-U.S. person relying on this exception also were counterparties to the registered entity. PO 00000 Frm 00087 Fmt 4701 Sfmt 4702 24291 (B) Applicable requirements. The compliance obligation described in paragraph (d)(1)(ii)(A) of this section applies to the following provisions of the Act and the rules and regulations thereunder: (1) Section 15F(h)(3)(B)(i), (ii) and rule 15Fh–3(b) thereunder, including in connection with material incentives and conflicts of interest associated with the non-U.S. person relying on the exception; (2) Rule 15Fh–3(f); (3) Section 15F(h)(3)(C) of the Act and rule 15Fh–3(g) thereunder; (4) Rules 15Fi–1 and 15Fi–2; and (5) Rule 15Fi–3, provided, however, that the registered entity described in paragraph (d)(1)(i) of this section will not be required to comply with rule 15Fi–3 in connection with the transaction following the initial portfolio reconciliation of the securitybased swap resulting from the transaction. (C) Other compliance requirements. The compliance obligation described in paragraph (d)(1)(ii)(A) of this section does not apply to the following provisions of the Act and the rules and regulations thereunder: (1) Section 15F(h)(3)(A) of the Act and rule 15Fh–3(a)(1) thereunder; (2) Section 15F(h)(3)(B)(iii) and rule 15Fh–3(c) thereunder; and (3) Rule 15Fh–3(d); (4) Rule 15Fh–3(e); (5) Rule 15Fi–4; and (6) Rule 15Fi–5. (iii) Commission access to books, records and testimony. (A) The non-U.S. person relying on this exception promptly provides representatives of the Commission (upon request of the Commission or its representatives or pursuant to a supervisory or enforcement memorandum of understanding or other arrangement or agreement reached between any foreign securities authority, including any foreign government, as specified in section 3(a)(50) of the Act, and the Commission or the U.S. Government) with any information or documents within the non-U.S. person’s possession, custody, or control, promptly makes its foreign associated persons available for testimony, and provides any assistance in taking the evidence of other persons, wherever located, that the Commission or its representatives requests and that relates to transactions subject to this exception, provided, however, that if, after exercising its best efforts, the non-U.S. person is prohibited by applicable foreign law or regulations from providing such information, documents, testimony, or assistance, the non-U.S. E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 24292 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules person may continue to rely on this exception until the Commission issues an order modifying or withdrawing an associated ‘‘listed jurisdiction’’ determination pursuant to paragraph (d)(2)(iii) of this section. (B) The registered entity described in paragraph (d)(1)(i) of this section: (1) Creates and maintains books and records relating to the transactions subject to this exception that are required, as applicable, by rules 17a–3 and 17a–4, or by rules 18a–5 and 18a– 6, including any books and records requirements relating to the provisions specified in paragraph (d)(1)(ii)(B) of this section; (2) Obtains from the non-U.S. person relying on the exception, and maintains, documentation encompassing all terms governing the trading relationship between the non-U.S. person and its counterparty relating to the transactions subject to this exception, including, without limitation, terms addressing payment obligations, netting of payments, events of default or other termination events, calculation and netting of obligations upon termination, transfer of rights and obligations, allocation of any applicable regulatory reporting obligations, governing law, valuation, and dispute resolution; and (3) Obtains from the non-U.S. person relying on this exception written consent to service of process for any civil action brought by or proceeding before the Commission, providing that process may be served on the non-U.S. person by service on the registered entity in the manner set forth in the registered entity’s current Form SBSE, SBSE–A or SBSE–BD, as applicable. (iv) Disclosures. In connection with the transaction, the registered entity described in paragraph (d)(1)(i) of this section notifies the counterparties of the non-U.S. person relying on this exception that the non-U.S. person is not registered with the Commission as a security-based swap dealer, and that certain Exchange Act provisions or rules addressing the regulation of securitybased swaps would not be applicable in connection with the transaction, including provisions affording clearing rights to counterparties. Such disclosure shall be provided contemporaneously with, and in the same manner as, the arranging, negotiating, or executing activity at issue. This disclosure will not be required if the identity of that counterparty is not known to that registered entity at a reasonably sufficient time prior to the execution of the transaction to permit such disclosure. (v) Subject to regulation of a listed jurisdiction. The non-U.S. person VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 relying on this exception is subject to the margin and capital requirements of a listed jurisdiction when engaging in transactions subject to this exception. (2) Order for listed jurisdiction designation. The Commission by order, may conditionally or unconditionally determine that a foreign jurisdiction is a listed jurisdiction for purposes of this section. The Commission may make listed jurisdiction determinations in response to applications, or upon the Commission’s own initiative. (i) Applications. Applications for an order requesting listed jurisdiction status may be made by a party or group of parties that potentially would seek to rely on the exception provided by paragraph (d) of this section, or by any foreign financial regulatory authority or authorities supervising such a party or its security-based swap activities. Applications must be filed pursuant to the procedures set forth in § 240.0–13. (ii) Criteria considered. In considering a foreign jurisdiction’s potential status as a listed jurisdiction, the Commission may consider factors relevant for purposes of assessing whether such an order would be in the public interest, including: (A) Applicable margin and capital requirements of the foreign financial regulatory system; and (B) The effectiveness of the supervisory compliance program administered by, and the enforcement authority exercised by, the foreign financial regulatory authority in connection with such requirements, including the application of those requirements in connection with an entity’s cross-border business. (iii) Withdrawal or modification of listed jurisdiction status. The Commission may, on its own initiative, by order after notice and opportunity for comment, modify or withdraw a jurisdiction’s status as a listed jurisdiction, if the Commission determines that continued listed jurisdiction status no longer would be in the public interest, based on: (A) The criteria set forth in paragraph (d)(2)(ii) of this section; (B) Any laws or regulations that have had the effect of preventing the Commission or its representatives, on request, to promptly access information or documents regarding the activities of persons relying on the exception provided by this paragraph (d), to obtain the testimony of foreign associated persons, and to obtain the assistance of persons relying on this exception in taking the evidence of other persons, wherever located, as described in paragraph (d)(1)(iii)(A) of this section; and PO 00000 Frm 00088 Fmt 4701 Sfmt 4702 (C) Any other factor the Commission determines to be relevant to whether continued status as a listed jurisdiction would be in the public interest. Alternative 2 (d) Exception from counting certain transactions. The counting requirement described by paragraph (b)(1)(iii)(C) of this section will not apply to the security-based swap dealing transactions of a non-U.S. person if the conditions of paragraph (d)(1) of this section have been satisfied. (1) Conditions. (i) Entity conducting U.S. activity. All activity that otherwise would cause a security-based swap transaction to be described by paragraph (b)(1)(iii)(C) of this section—namely, all arranging, negotiating or executing activity that is conducted by personnel of the entity (or its agent) located in a branch or office in the United States— is conducted by such U.S. personnel in their capacity as persons associated with an entity that: (A) Is registered with the Commission as a broker or as a security-based swap dealer; and (B) Is a majority-owned affiliate of the non-U.S. person relying on this exception. (ii) Compliance with specified security-based swap dealer requirements. (A) Compliance required. In connection with such transactions, the registered entity described in paragraph (d)(1)(i) of this section complies with the requirements described in paragraph (d)(1)(ii)(B) of this section: (a) As if the counterparties to the non-U.S. person relying on this exception also were counterparties to that entity; and (b) as if that entity were registered with the Commission as a security-based swap dealer, if it is not so registered. (B) Applicable requirements. The compliance obligation described in paragraph (d)(1)(ii)(A) of this section applies to the following provisions of the Act and the rules and regulations thereunder: (1) Section 15F(h)(3)(B)(i), (ii) and rule 15Fh–3(b) thereunder, including in connection with material incentives and conflicts of interest associated with the non-U.S. person relying on the exception; (2) Rule 15Fh–3(f); (3) Section 15F(h)(3)(C) of the Act and rule 15Fh–3(g) thereunder; (4) Rules 15Fi–1 and 15Fi–2; and (5) Rule 15Fi–3, provided, however, that the registered entity described in paragraph (d)(1)(i) will not be required to comply with rule 15Fi–3 in connection with the transaction following the initial portfolio E:\FR\FM\24MYP2.SGM 24MYP2 khammond on DSKBBV9HB2PROD with PROPOSALS2 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules reconciliation of the security-based swap resulting from the transaction. (C) Other compliance requirements. The compliance obligation described in paragraph (d)(1)(ii)(A) of this section does not apply to the following provisions of the Act and the rules and regulations thereunder: (1) Section 15F(h)(3)(A) of the Act and rule 15Fh–3(a)(1) thereunder; (2) Section 15F(h)(3)(B)(iii) and rule 15Fh–3(c) thereunder; (3) Rule 15Fh–3(d); (4) Rule 15Fh–3(e); (5) Rule 15Fi–4; and (6) Rule 15Fi–5. (iii) Commission access to books, records and testimony. (A) The non-U.S. person relying on this exception promptly provides representatives of the Commission (upon request of the Commission or its representatives or pursuant to a supervisory or enforcement memorandum of understanding or other arrangement or agreement reached between any foreign securities authority, including any foreign government, as specified in section 3(a)(50) of the Act, and the Commission or the U.S. Government) with any information or documents within the non-U.S. person’s possession, custody, or control, promptly makes its foreign associated persons available for testimony, and provides any assistance in taking the evidence of other persons, wherever located, that the Commission or its representatives requests and that relates to transactions subject to this exception, provided, however, that if, after exercising its best efforts, the non-U.S. person is prohibited by applicable foreign law or regulations from providing such information, documents, testimony, or assistance, the non-U.S. person may continue to rely on this exception until the Commission issues an order modifying or withdrawing an associated ‘‘listed jurisdiction’’ determination pursuant to paragraph (d)(2)(iii) of this section. (B) The registered entity described in paragraph (d)(1)(i) of this section: (1) Creates and maintains books and records relating to the transactions subject to this exception that are required, as applicable, by rules 17a–3 and 17a–4, or by rules 18a–5 and 18a– 6, including any books and records requirements relating to the provisions specified in paragraph (d)(1)(ii)(B) of this section; (2) Obtains from the non-U.S. person relying on the exception, and maintains, documentation encompassing all terms governing the trading relationship between the non-U.S. person and its counterparty relating to the transactions VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 subject to this exception, including, without limitation, terms addressing payment obligations, netting of payments, events of default or other termination events, calculation and netting of obligations upon termination, transfer of rights and obligations, allocation of any applicable regulatory reporting obligations, governing law, valuation, and dispute resolution; and (3) Obtains from the non-U.S. person relying on this exception written consent to service of process for any civil action brought by or proceeding before the Commission, providing that process may be served on the non-U.S. person by service on the registered entity in the manner set forth in the registered entity’s current Form BD, SBSE, SBSE–A or SBSE–BD, as applicable. (iv) Disclosures. In connection with the transaction, the registered entity described in paragraph (d)(1)(i) of this section notifies the counterparties of the non-U.S. person relying on this exception that the non-U.S. person is not registered with the Commission as a security-based swap dealer, and that certain Exchange Act provisions or rules addressing the regulation of securitybased swaps would not be applicable in connection with the transaction, including provisions affording clearing rights to counterparties. Such disclosure shall be provided contemporaneously with, and in the same manner as, the arranging, negotiating, or executing activity at issue. This disclosure will not be required if the identity of that counterparty is not known to that registered entity at a reasonably sufficient time prior to the execution of the transaction to permit such disclosure. (v) Subject to regulation of a listed jurisdiction. The non-U.S. person relying on this exception is subject to the margin and capital requirements of a listed jurisdiction when engaging in the transactions subject to this exception. (2) Order for listed jurisdiction designation. The Commission by order, may conditionally or unconditionally determine that a foreign jurisdiction is a listed jurisdiction for purposes of this section. The Commission may make listed jurisdiction determinations in response to applications, or upon the Commission’s own initiative. (i) Applications. Applications for an order requesting listed jurisdiction status may be made by a party or group of parties that potentially would seek to rely on the exception provided by paragraph (d) of this section, or by any foreign financial regulatory authority or authorities supervising such a party or PO 00000 Frm 00089 Fmt 4701 Sfmt 4702 24293 its security-based swap activities. Applications must be filed pursuant to the procedures set forth in § 240.0–13. (ii) Criteria considered. In considering a foreign jurisdiction’s potential status as a listed jurisdiction, the Commission may consider factors relevant for purposes of assessing whether such an order would be in the public interest, including: (A) Applicable margin and capital requirements of the foreign financial regulatory system; and (B) The effectiveness of the supervisory compliance program administered by, and the enforcement authority exercised by, the foreign financial regulatory authority in connection with such requirements, including the application of those requirements in connection with an entity’s cross-border business. (iii) Withdrawal or modification of listed jurisdiction status. The Commission may, on its own initiative, by order after notice and opportunity for comment, modify or withdraw a jurisdiction’s status as a listed jurisdiction, if the Commission determines that continued listed jurisdiction status no longer would be in the public interest, based on: (A) The criteria set forth in paragraph (d)(2)(ii) of this section; (B) Any laws or regulations that have had the effect of preventing the Commission or its representatives, on request, to promptly access information or documents regarding the activities of persons relying on the exception provided by this paragraph (d), to obtain the testimony of their foreign associated persons, and to obtain the assistance of persons relying on this exception in taking the evidence of other persons, wherever located, as described in paragraph (d)(1)(iii)(A) of this section; and (C) Any other factor the Commission determines to be relevant to whether continued status as a listed jurisdiction would be in the public interest. (4) Exception for person that engages in arranging, negotiating or executing activity as agent. The registered entity described in paragraph (d)(1)(i) of this section need not count, against the de minimis thresholds described in § 240.3a71–2(a)(1), the transactions described by paragraph (d) of this section. * * * * * ■ 6. Amend Section 240.15Fb2–1 by revising paragraphs (d) and (e) to read as follows: The additions read as follows. E:\FR\FM\24MYP2.SGM 24MYP2 24294 Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed Rules § 240.15Fb2–1 Registration of securitybased swap dealers and major securitybased swap participants. khammond on DSKBBV9HB2PROD with PROPOSALS2 * * * * * (d) Conditional registration. (1) An applicant that has submitted a complete Form SBSE–C (§ 249.1600c of this chapter) and a complete Form SBSE (§ 249.1600 of this chapter) or Form SBSE–A (§ 249.1600a of this chapter) or Form SBSE–BD (§ 249.1600b of this chapter), as applicable, in accordance with paragraph (b) within the time periods set forth in § 240.3a67–8 (if the person is a major security-based swap participant) or § 240.3a71–2(b) (if the person is a security-based swap dealer), and has not withdrawn its registration shall be conditionally registered. (2) Notwithstanding paragraph (d)(1) of this section, an applicant that is a nonresident security-based swap dealer or nonresident major security-based swap participant (each as defined in Rule 15Fb2–4(a)) that is unable to provide the certification and opinion of counsel required by Rule 15Fb2–4(c)(1) shall be conditionally registered, for up to 24 months after the compliance date for Rule 15Fb2–1, if the nonresident applicant submits a Form SBSE–C (§ 249.1600c of this chapter) and a Form SBSE (§ 249.1600 of this chapter), SBSE–A (§ 249.1600a of this chapter) or SBSE–BD (§ 249.1600b of this chapter), as applicable, in accordance with paragraph (b) within the time periods set forth in Rule 3a67–8 (if the person is a major security-based swap participant) or Rule 3a71–2(b) (if the person is a security-based swap dealer), that is complete in all respects but for the failure to provide the certification and the opinion of counsel required by Rule 15Fb2–4(c)(1), and has not withdrawn from registration. (e) Commission decision. (1) The Commission may deny or grant ongoing registration to a security-based swap dealer or major security-based swap participant based on a security-based swap dealer’s or major security-based swap participant’s application, filed pursuant to paragraph (a) of this section. The Commission will grant ongoing registration if it finds that the requirements of Section 15F(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78o–10(b)) are satisfied. The Commission may institute proceedings to determine whether ongoing registration should be denied if it does VerDate Sep<11>2014 18:16 May 23, 2019 Jkt 247001 not or cannot make such finding or if the applicant is subject to a statutory disqualification (as described in Sections 3(a)(39)(A) through (F) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(39)(A)–(F)), or the Commission is aware of inaccurate statements in the application. Such proceedings shall include notice of the grounds for denial under consideration and opportunity for hearing. At the conclusion of such proceedings, the Commission shall grant or deny such registration. (2) If an applicant that is a nonresident security-based swap dealer or nonresident major security-based swap participant (each as defined in Rule 15Fb2–4(a)) has become conditionally registered in reliance on paragraph (d)(2) of this section and provides the certification and opinion of counsel required by Rule 15Fb2–4(c)(1) within 24 months of the compliance date for Rule 15Fb2–1, the applicant will remain conditionally registered until the Commission acts to grant or deny ongoing registration in accordance with (e)(1) of this section. If such applicant fails to provide the certification and opinion of counsel required by Rule 15Fb2–4(c)(1) within 24 months of the compliance date for Rule 15Fb2–1, the Commission may institute proceedings to determine whether ongoing registration should be denied, in accordance with paragraph (e)(1) of this section. ■ 7. Section 240.18a–5, as proposed to be added at 79 FR 25193, May 2, 2014, is further amended by adding paragraphs (a)(10)(iii) and (b)(8)(iii) to read as follows: § 240.18a–5 Records to be made by certain security-based swap dealers and major security-based swap participants. * * * * * (a) * * * (10) * * * (iii) Notwithstanding paragraph (a)(10)(i) of this section: (A) A security-based swap dealer or major security-based swap participant is not required to make and keep current a questionnaire or application for employment executed by an associated person if the security-based swap dealer or major security-based swap participant is excluded from the prohibition in Section 15F(b)(6) of the Exchange Act (15 U.S.C. 78o–10(b)(6)) PO 00000 Frm 00090 Fmt 4701 Sfmt 9990 with respect to such associated person; and (B) a questionnaire or application for employment executed by an associated person who is not a U.S. person (as that term is defined in § 240.3a71– 3(a)(4)(i)(A)) need not include the information described in paragraphs (a)(10)(i)(A) through (H) of this section if the receipt of that information, or the creation or maintenance of records reflecting that information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located; provided, however, the security-based swap dealer or major security-based swap participant must comply with Section 15F(b)(6) of the Exchange Act (15 U.S.C. 78o–10(b)(6)). * * * * * (b) * * * (8) * * * (iii) Notwithstanding paragraph (b)(8)(i) of this section; (A) a security-based swap dealer or major security-based swap participant is not required to make and keep current a questionnaire or application for employment executed by an associated person if the security-based swap dealer or major security-based swap participant is excluded from the prohibition in Section 15F(b)(6) of the Exchange Act (15 U.S.C. 78o–10(b)(6)) with respect to such associated person; and (B) a questionnaire or application for employment executed by an associated person who is not a U.S. person (as that term is defined in § 240.3a71– 3(a)(4)(i)(A)) need not include the information described in paragraphs (b)(8)(i)(A) through (H) of this section if the receipt of that information, or the creation or maintenance of records reflecting that information, would result in a violation of applicable law in the jurisdiction in which the associated person is employed or located; provided, however, the security-based swap dealer or major security-based swap participant must comply with Section 15F(b)(6) of the Exchange Act (15 U.S.C. 78o–10(b)(6)). By the Commission. Dated: May 10, 2019. Vanessa A. Countryman, Acting Secretary. [FR Doc. 2019–10016 Filed 5–23–19; 8:45 am] BILLING CODE 8011–01–P E:\FR\FM\24MYP2.SGM 24MYP2

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 84, Number 101 (Friday, May 24, 2019)]
[Proposed Rules]
[Pages 24206-24294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10016]



[[Page 24205]]

Vol. 84

Friday,

No. 101

May 24, 2019

Part II





 Securities and Exchange Commission





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17 CFR Parts 201 and 240





 Proposed Rule Amendments and Guidance Addressing Cross-Border 
Application of Certain Security-Based Swap Requirements; Proposed Rule

Federal Register / Vol. 84, No. 101 / Friday, May 24, 2019 / Proposed 
Rules

[[Page 24206]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 201 and 240

[Release No. 34-85823; File No. S7-07-19]
RIN 3235-AM13


Proposed Rule Amendments and Guidance Addressing Cross-Border 
Application of Certain Security-Based Swap Requirements

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rules; proposed interpretations.

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SUMMARY: The Securities and Exchange Commission (``SEC'' or 
``Commission'') is proposing a number of actions to address the cross-
border application of certain security-based swap requirements under 
the Securities Exchange Act of 1934 (``Exchange Act'') that were added 
by Title VII of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (the ``Dodd-Frank Act'').

DATES: Submit comments on or before July 23, 2019.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/proposed.shtml); or
     Send an email to [email protected]. Please include 
File Number S7-07-19 on the subject line.

Paper Comments

     Send paper comments to [ ], Secretary, Securities and 
Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number S7-07-19. This file number 
should be included on the subject line if email is used. To help the 
Commission process and review your comments more efficiently, please 
use only one method. The Commission will post all comments on the 
Commission's internet website (https://www.sec.gov/rules/proposed.shtml). Comments are also available for website viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE, 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. All comments received will be posted without 
change. Persons submitting comments are cautioned that the Commission 
does not redact or edit personal identifying information from comment 
submissions. You should submit only information that you wish to make 
publicly available.
    Studies, memoranda, or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any such materials 
will be made available on the Commission's website. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: Carol M. McGee, Assistant Director, at 
202-551-5870, regarding the proposed interpretive guidance related to 
security-based swap transactions that have been ``arranged'' or 
``negotiated'' by personnel located in the United States and the 
proposed amendment to Exchange Act Rule 3a71-3; Devin Ryan, Senior 
Special Counsel and Edward Schellhorn, Special Counsel regarding the 
proposed amendment to Commission Rule of Practice 194; Joanne 
Rutkowski, Assistant Chief Counsel and Bonnie Gauch, Senior Special 
Counsel, regarding the proposed amendments to Exchange Act Rule 15Fb2-1 
and proposed interpretive guidance related to Exchange Act Rule 15Fb2-
4; and Joseph Levinson, Senior Special Counsel, regarding the proposed 
modifications to proposed Exchange Act Rule 18a-5; at 202-551-5777, 
Division of Trading and Markets, Securities and Exchange Commission, 
100 F Street NE, Washington, DC 20549-7010.

SUPPLEMENTARY INFORMATION: The Commission is proposing for public 
comment guidance regarding the application of certain uses of the terms 
``arranged'' and ``negotiated'' in connection with the cross-border 
application of security-based swap regulation under the Exchange Act, 
guidance regarding the certification and opinion of counsel 
requirements in Exchange Act Rule 15Fb2-4 and Rule 3a71-6, amendments 
to Exchange Act Rules 0-13, 3a71-3, 15Fb2-1, and Commission Rule of 
Practice 194, and modifications to proposed Rule 18a-5.
    First, the Commission is proposing supplemental guidance to address 
how certain requirements under Title VII--related to security-based 
swap transactions that have been ``arranged'' or ``negotiated'' by 
personnel located in the United States--apply to transactions involving 
limited activities by those U.S. personnel. Separately, the Commission 
is requesting comment on two alternative proposals to amend Rule 3a71-3 
under the Exchange Act to modify a provision addressing the cross-
border application of the ``security-based swap dealer'' de minimis 
exception. Both of the alternative proposals for the amendment would 
add an exception to the rule's existing requirement that, for purposes 
of determining whether an entity must register as a security-based swap 
dealer, non-U.S. persons must count, as part of their de minimis 
calculations, security-based swap dealing transactions that have been 
``arranged, negotiated, or executed'' by personnel located in a U.S. 
branch or office. The Commission also is proposing corresponding 
technical revisions to Exchange Act Rule 0-13 in conjunction with the 
proposed amendment. The Commission further is requesting comment on 
whether to provide other conditional exceptions for certain other 
requirements that apply to such ``arranged, negotiated, or executed'' 
transactions, including regulatory reporting and public dissemination 
requirements and security-based swap dealer business conduct 
requirements. Separately, the Commission is proposing to provide 
guidance regarding the certification and opinion of counsel 
requirements in Exchange Act Rule 15Fb2-4. The Commission is proposing 
to amend Exchange Act Rule 15Fb2-1 to provide additional time for a 
security-based swap dealer or major security-based swap participant 
(collectively defined as ``SBS Entity'') to submit the certification 
and opinion of counsel required under Rule 15Fb2-4(c)(1). In addition, 
the Commission is proposing to amend Rule of Practice 194 to exclude an 
SBS Entity, subject to certain limitations, from the prohibition in 
Exchange Act Section 15F(b)(6) with respect to an associated person who 
is a natural person who (i) is not a U.S. person and (ii) does not 
effect and is not involved in effecting security-based swap 
transactions with or for counterparties that are U.S. persons, other 
than a security-based swap transaction conducted through a foreign 
branch of a counterparty that is a U.S. person. Finally, the Commission 
is proposing certain modifications to proposed Exchange Act Rule 18a-5 
to address the questionnaire or application for employment that an SBS 
Entity is required to make and keep current with respect to certain 
foreign associated persons.

I. Background

    The Commission has proposed and finalized a number of rules to 
implement requirements under Title VII

[[Page 24207]]

of the Dodd-Frank Act \1\ providing for the regulation of security-
based swap activity. Several of those rules include provisions to 
address unique concerns raised by cross-border activity in security-
based swaps, including:
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010). Unless otherwise 
indicated, references to Title VII in this release are to Subtitle B 
of Title VII.
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     Exchange Act Rule 3a71-3, which, among other things, 
requires (1) non-U.S. persons to include security-based swap dealing 
transactions that have been ``arranged, negotiated, or executed'' using 
U.S. personnel \2\ in their calculations under the de minimis exception 
to the ``security-based swap dealer'' definition,\3\ and (2) registered 
security-based swap dealers to comply with business conduct 
requirements in connection with certain transactions that have been 
arranged, negotiated or executed by U.S. personnel.
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    \2\ For purposes of this release, the term ``U.S. personnel'' 
means personnel located in a branch or office in the United States 
of an entity that is engaged in security-based swap activity, or by 
personnel of an agent of that entity.
    \3\ The term ``security-based swap dealer'' is defined in 
Exchange Act Section 3(a)(71), and further defined by Exchange Act 
Rules 3a71-1 through 3a71-5. Section 3(a)(71)(D) provides that the 
Commission shall promulgate regulations to establish factors with 
respect to the making of any determination to exempt a security-
based swap dealer that engages in a de minimis quantity of security-
based swap dealing.
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     Regulation SBSR Rules 908(a)(1)(v) and 908(b)(5), which 
require regulatory reporting and public dissemination of security-based 
swap transactions ``arranged, negotiated, or executed'' using personnel 
located within the United States.
     Exchange Act Rule 15Fb2-4, which requires, among other 
things, that each nonresident security-based swap dealer and 
nonresident major security-based swap participant (each as defined in 
Exchange Act Rule 15Fb2-4, collectively ``nonresident SBS Entity'') 
registering with the Commission provide a certification and opinion of 
counsel regarding its willingness and ability to provide the Commission 
with prompt access to its books and records and submit to onsite 
inspection and examination by the Commission, on Schedule F to Forms 
SBSE, SBSE-A and SBSE-BD, as appropriate, which applicants use to 
provide the certification.
     Exchange Act Rule 15Fb6-2, and proposed Rule 18a-5, which 
together would require each registered SBS Entity, whether a U.S. or 
non-U.S. person, (1) to certify 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 security-
based swaps on its behalf is subject to a statutory disqualification 
and (2) to make and retain a background questionnaire to support this 
certification.
    As discussed in more detail below, market participants and other 
commenters have raised concerns regarding possible disruptive effects 
of the above requirements, suggesting that the requirements would 
create significant operational burdens and impose unwarranted costs. 
Such costs and operational burdens may be exacerbated by differences 
between the Commission's rules in these areas and corresponding rules 
of the Commodity Futures Trading Commission (``CFTC'') in connection 
with the regulation of the swaps market. For these reasons, the 
Commission has determined that it is appropriate to reconsider its 
approach to these issues and consider whether those rules could be 
tailored in a manner that would continue to advance the objectives of 
Title VII while reducing associated costs and burdens and, where 
appropriate, minimizing differences from the approach taken by the 
CFTC.
    In developing these proposals, the Commission has consulted and 
coordinated with staff of the CFTC and the prudential regulators,\4\ in 
accordance with the consultation mandate of the Dodd-Frank Act.\5\ The 
Commission also has consulted and coordinated with foreign regulatory 
authorities through Commission staff participation in numerous 
bilateral and multilateral discussions with foreign regulatory 
authorities addressing the regulation of OTC (over-the-counter) 
derivatives.\6\ Through these multilateral and bilateral discussions 
and the Commission staff's participation in various international task 
forces and working groups, the Commission has gathered information 
about foreign regulatory reform efforts and their effect on and 
relationship with the U.S. regulatory regime. The Commission has taken 
and will continue to take these discussions into consideration in 
developing rules, forms, and interpretations for implementing Title VII 
of the Dodd-Frank Act.
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    \4\ The term ``prudential regulator'' is defined in Section 
1a(39) of the Commodity Exchange Act (``CEA''), 7 U.S.C. 1a(39), and 
that definition is incorporated by reference in Section 3(a)(74) of 
the Exchange Act, 15 U.S.C. 78c(a)(74). Pursuant to the definition, 
the Board of Governors of the Federal Reserve System (``Federal 
Reserve Board''), the Office of the Comptroller of the Currency, the 
Federal Deposit Insurance Corporation, the Farm Credit 
Administration, or the Federal Housing Finance Agency (collectively, 
the ``prudential regulators'') is the ``prudential regulator'' of a 
security-based swap dealer or major security-based swap participant 
if the entity is directly supervised by that regulator.
    \5\ Section 712(a)(2) of the Dodd-Frank Act provides in part 
that the Commission shall ``consult and coordinate to the extent 
possible with the Commodity Futures Trading Commission and the 
prudential regulators for the purposes of assuring regulatory 
consistency and comparability, to the extent possible.''
    In addition, Section 752(a) of the Dodd-Frank Act provides in 
part that ``[i]n order to promote effective and consistent global 
regulation of swaps and security-based swaps, the Commodity Futures 
Trading Commission, the Securities and Exchange Commission, and the 
prudential regulators . . . as appropriate, shall consult and 
coordinate with foreign regulatory authorities on the establishment 
of consistent international standards with respect to the regulation 
(including fees) of swaps.''
    \6\ Staff participates in a number of international standard-
setting bodies and workstreams working on OTC derivatives reforms. 
For example, Commission staff participates in the Financial 
Stability Board's Working Group on OTC Derivatives Regulation. 
Commission staff also participates in the International Organization 
of Securities Commissions (``IOSCO'')'s Committee on Derivatives, 
the joint Basel Committee on Banking Supervision (``BCBS'') and 
IOSCO Working Group on Margin Requirements' Monitoring Group and 
participates in international working groups that impact OTC 
derivatives financial market infrastructures, such as CPMI-IOSCO 
joint working groups assessing legal and regulatory frameworks for 
central counterparties and trade repositories and examining central 
counterparty resilience and recovery.
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A. Application of Title VII to Transactions ``Arranged, Negotiated, or 
Executed'' Using Personnel Located Within the United States

1. Proposed Guidance, Exception, and Solicitation of Comment
    The Commission is taking a number of steps to address continuing 
concerns that have been raised regarding the various uses of an 
``arranged, negotiated, or executed'' test in the cross-border 
application of Title VII.
    First, the Commission is proposing supplemental guidance regarding 
the types of activities by U.S. personnel that would--and would not--
constitute ``arranging'' or ``negotiating'' security-based swap 
transactions for purposes of tests that are used to implement a number 
of Title VII requirements in the cross-border context.\7\ Separately, 
the Commission is proposing two alternatives for a conditional 
exception from the ``arranged, negotiated, or execute'' test that forms 
part of the de minimis counting provisions of Exchange Act Rule 3a71-3. 
Both alternatives would provide an exception from the requirement that 
non-U.S.

[[Page 24208]]

persons count, against the thresholds associated with the de minimis 
exception, their security-based swap dealing transactions with non-U.S. 
counterparties that were arranged, negotiated, or executed by U.S. 
personnel.\8\ Finally, the Commission is soliciting comment as to 
whether to provide additional conditional exceptions from certain other 
requirements under Title VII that otherwise would apply to transactions 
``arranged, negotiated, or executed'' by U.S. personnel.\9\
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    \7\ The proposed guidance would address the application of 
``arranged'' and ``negotiated'' criteria as used in connection with: 
Two provisions addressing the cross-border application of the de 
minimis exception to the ``security-based swap dealer'' definition, 
security-based swap dealer business conduct requirements, the 
regulatory reporting and public dissemination requirements of 
Regulation SBSR, and certain major security-based swap participant 
requirements. See part II, infra.
    \8\ See Exchange Act Rule 3a71-3(b)(1)(iii)(C).
    \9\ Those requests particularly address the use of ``arranged, 
negotiated, or executed'' or equivalent criteria in connection with: 
The application of the de minimis counting standard of Exchange Act 
Rule 3a71-3(b)(1)(iii)(A) to certain dealing transactions involving 
counterparties that are foreign branches of registered security-
based swap dealers, regulatory reporting and public dissemination 
requirements in Rules 908(a)(1)(v) and 908(b)(5) of Regulation SBSR, 
security-based swap dealer business conduct standards that are not 
exempted by Exchange Act Rule 3a71-3(c), and major security-based 
swap requirements in Exchange Act Rule 3a67-10.
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    These actions--the proposed guidance, the proposed alternatives for 
a conditional exception from the ``arranged, negotiated, or executed'' 
de minimis counting provision, and the solicitation of comment 
regarding other possible exceptions from ``arranged, negotiated, or 
executed'' test used to implement Title VII--are intended to help 
appropriately tailor the application of Title VII to the U.S. market 
concerns raised by the transactions that do not involve U.S. 
counterparties but that nonetheless result from activity within the 
United States.
    In proposing this guidance and exception, the Commission is mindful 
that the various uses of ``arranged, negotiated, or executed'' criteria 
are intended to serve important interests related to avoiding 
competitive disparities and market fragmentation, and to public 
transparency.\10\ The use of the ``arranged, negotiated, or executed'' 
test in the context of the security-based swap dealer de minimis 
counting provision particularly plays an important role in helping to 
prevent entities from using booking practices to avoid registering as 
security-based swap dealers, despite being engaged in security-based 
swap dealing activity in the United States.\11\ The Commission's 
proposals to mitigate the negative consequences potentially associated 
with the various uses of this type of test accordingly are designed to 
promote the important Title VII interests that the Commission advanced 
when it incorporated the test into the various cross-border rules.
---------------------------------------------------------------------------

    \10\ See notes 19 and 20, infra.
    \11\ See note 18, infra.
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2. Current Uses of ``Arranged, Negotiated, or Executed'' Criteria
    Exchange Act Rule 3a71-3 provides in part that, when determining 
whether non-U.S. persons will be deemed to be security-based swap 
dealers--and hence subject to the Title VII requirements applicable to 
security-based swap dealers--non-U.S. persons must count, against the 
applicable de minimis threshold, their security-based swap dealing 
transactions with non-U.S. counterparties that were ``arranged, 
negotiated, or executed'' by personnel within the United States.\12\ 
The rule separately requires that non-U.S. persons count dealing 
transactions with U.S. counterparties, and dealing transactions in 
which their performance under the security-based swap is guaranteed by 
a U.S. affiliate.\13\
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    \12\ See Exchange Act Rule 3a71-3(b)(1)(iii)(C). Rule 3a71-3(b) 
specifically addresses which cross-border security-based swap 
transactions must be counted against thresholds associated with the 
de minimis exception to the security-based swap dealer definition. 
Persons whose dealing activities exceed the de minimis thresholds 
will be required to register as security-based swap dealers once a 
compliance date is set. See Exchange Act Section 3(a)(71)(D); 
Exchange Act Rule 3a71-2.
     The requirement that non-U.S. persons count transactions that 
have been arranged, negotiated or executed in the United States does 
not apply to non-U.S. persons that are international organizations 
such as the International Monetary Fund, the International Bank for 
Reconstruction and Development and the United Nations. See Exchange 
Act Rule 3a71-3(a)(4)(iii) and Rule 3a71-3(b)(1)(iii)(C).
    \13\ Overall, Rule 3a71-3 provides that non-U.S. persons (other 
than conduit affiliates as defined in paragraph (a)(1) of the rule) 
must count against the de minimis thresholds the following types of 
security-based swap dealing transactions: (i) Transactions entered 
into with U.S. persons (other than certain transactions involving 
foreign branches of the U.S. person); (ii) guaranteed transactions 
in which the counterparty has rights of recourse against a U.S. 
person affiliated with the non-U.S. person; and (iii) transactions 
that are arranged, negotiated or executed by personnel of the non-
U.S. person located in a U.S. branch or office, or by personnel of 
an agent of the non-U.S. person located in a U.S. branch or office. 
See Exchange Act Rule 3a71-3(b)(1)(iii).
     A non-U.S. person's transactions with foreign branches of 
registered security-based swap dealers need not be counted so long 
as the transaction was not arranged, negotiated or executed by U.S. 
personnel on behalf of the foreign branch. See Exchange Act Rules 
3a71-3(b)(1)(iii)(A) (counting standard) and 3a71-3(a)(3) 
(definition of ``transaction conducted through a foreign branch''); 
see also note 81, infra.
     The de minimis counting rule further provides that a person 
engaged in transactions that are required to be counted also must 
count certain transactions of its affiliates, other than affiliates 
that are registered as security-based swap dealers (and certain 
others). See Exchange Act Rules 3a71-3(b)(2), 3a71-4.
     In addition, Rule 3a71-5, which provides an exception from the 
de minimis counting requirement for certain cleared anonymous 
transactions, is not available to transactions arranged, negotiated 
or executed by U.S. personnel. As discussed below, the proposed Rule 
3a71-5 exception would not be relevant to the transactions subject 
to that proposed exception. See note 100, infra. The proposed 
guidance regarding what activity would trigger the ``arranged, 
negotiated, or executed'' test would be relevant to the application 
of the Rule 3a71-5 exception, however. See note 90, infra.
---------------------------------------------------------------------------

    Subsequent to incorporating the ``arranged, negotiated, or 
executed'' test into the de minimis counting standard, the Commission 
also incorporated the test into other rules addressing the cross-border 
application of Title VII. Regulation SBSR in part subjects transactions 
``arranged, negotiated, or executed'' in the United States to 
regulatory reporting and public dissemination requirements.\14\ 
Registered security-based swap dealers also are subject to certain 
business conduct standards with respect to transactions arranged, 
negotiated or executed by personnel within the United States.\15\
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    \14\ In particular, Regulation SBSR Rule 908(a)(1)(v) requires 
regulatory reporting and public dissemination of transactions, 
connected with a non-U.S. person's security-based swap dealing 
activity, that are arranged, negotiated or executed by the U.S. 
personnel of the non-U.S. person, or by U.S. personnel of the non-
U.S. person's agent. Rule 908(b)(5) further specifies that non-U.S. 
persons may be subject to regulatory reporting and public 
dissemination requirements in conjunction with security-based swap 
transactions arranged, negotiated or executed by U.S. personnel. See 
also note 80, infra.
    \15\ Exchange Act Rule 3a71-3(c) provides that security-based 
swap dealers are not subject to certain business conduct standards 
with regard to their ``foreign business,'' a term that incorporates 
additional definitions of ``U.S. business'' and ``transaction 
conducted through a foreign branch'' (see Exchange Act Rules 3a71-
3(a)(3), (8) and (9)). The rule in effect applies business conduct 
requirements to certain security-based swap transactions of foreign 
security-based swap dealers, and certain transactions conducted 
through foreign branches of U.S. security-based swap dealers, only 
when the transactions were arranged, negotiated or executed by U.S. 
personnel. See also note 79, infra.
     Equivalent criteria also have been incorporated into rules 
regarding the cross-border application of Title VII requirements 
applicable to major security-based swap participants. See note 82, 
infra.
---------------------------------------------------------------------------

    The use of ``arranged, negotiated, or executed'' criteria as part 
of the de minimis counting test reflects the Commission's view that a 
non-U.S. person that, as part of its dealing, ``engages in market-
facing activity using personnel located in the United States'' would 
perform activities that fall within the security-based swap dealer 
definition ``at least in part in the United States.'' \16\ When 
adopting that test and

[[Page 24209]]

addressing alternative views suggested by commenters, the Commission 
stated that it was appropriate to impose Title VII requirements on such 
activity given, among other things, the focus of the ``security-based 
swap dealer'' definition on a person's dealing activity,\17\ the risk 
that non-U.S. persons engaged in security-based swap dealing activity 
in the United States could avoid regulation under Title VII,\18\ 
concerns about competitive disparities and possible market 
fragmentation absent such a test,\19\ and the role of public 
transparency.\20\
---------------------------------------------------------------------------

    \16\ ``Security-Based Swap Transactions Connected with a Non-
U.S. Person's Dealing Activity That Are Arranged, Negotiated, or 
Executed By Personnel Located in a U.S. Branch or Office or in a 
U.S. Branch or Office of an Agent; Security-Based Swap Dealer De 
Minimis Exception,'' Exchange Act Release No. 77104 (Feb. 10, 2016), 
81 FR 8598, 8621 (Feb. 19, 2016) (``ANE Adopting Release''); see 
also id. at 8622 (``a non-U.S. person's market-facing activity in 
the United States suggests the type of involvement in the U.S. 
security-based swap market that may raise financial contagion, 
customer protection, market integrity, and market transparency 
concerns'').
    \17\ The statutory definition of ``security-based swap dealer'' 
encompasses the following activities: (1) Holding oneself out as a 
dealer in security-based swaps, (2) making a market in security-
based swaps; (3) regularly entering into security-based swaps with 
counterparties as an ordinary course of business for one's own 
account; or (4) engaging in any activity causing oneself to be 
commonly known in the trade as a dealer in security-based swaps. See 
Exchange Act Section 3(a)(71)(A); see also ANE Adopting Release, 81 
FR at 8614-15 & n.158 (further concluding that the appropriate 
analysis also considers whether a non-U.S. person is engaged in the 
United States in an amount above the de minimis thresholds in any of 
the activities set forth in the statutory security-based swap dealer 
definition or in the Commission's further definition of that term, 
and that the final rule's treatment of activity performed by an 
agent on behalf of a non-U.S. person in connection with its dealing 
activity was consistent with Exchange Act Section 30(c), which 
prohibits the application of Title VII requirements to a person that 
transacts a security-based swap business ``without the jurisdiction 
of the United States'').
    \18\ See id. at 8615. ``As long as a non-U.S. person limited its 
dealing activity with U.S. persons to levels below the dealer de 
minimis thresholds, it could enter into an unlimited number of 
transactions connected with its dealing activity in the United 
States without being required to register as a security-based swap 
dealer.'' Id.
    \19\ See id. at 8616. The Commission stated that if financial 
groups using non-U.S. persons to carry out dealing business in the 
United States can ``exit the Title VII regulatory regime without 
exiting the U.S. market with respect to their security-based swap 
dealing business with non-U.S.-person counterparties (including non-
U.S.-person dealers),'' those non-U.S.-person dealers likely would 
incur fewer costs related to their U.S. dealing activity than U.S.-
person dealers transacting with the same counterparties, and that 
non-U.S. person counterparties likely would incur lower costs and 
obtain better pricing by entering into security-based swaps with 
non-U.S. dealers that are not required to register as security-based 
swap dealers. The Commission added that U.S.-person dealers would be 
at a disadvantage as financial groups use their non-registered 
dealers to cross-subsidize the dealing activity of affiliated 
registered security-based swap dealers that engage in dealing 
activity with U.S.-person counterparties. See id.
    \20\ See id. at 8615 (stating that aside from mitigating 
counterparty and operational risks, Title VII security-based swap 
dealer requirements also ``advance other important policy objectives 
of security-based swap dealer regulation under Title VII, including 
enhancing counterparty protections and market integrity, increasing 
transparency, and mitigating risk to participants in the financial 
markets and the U.S. financial system more broadly'').
---------------------------------------------------------------------------

3. Commission Consideration of Alternatives Relying on Registered 
Broker-Dealers and Banks
    Before the Commission incorporated an ``arranged, negotiated, or 
executed'' test into the Rule 3a71-3(b)(1)(iii)(C) de minimis counting 
standard applicable to transactions involving two non-U.S. persons, 
certain commenters had expressed the view that other Exchange Act 
protections would obviate the need to use Title VII security-based swap 
dealer regulation to address regulatory concerns arising from non-U.S. 
persons' dealing activity using U.S. personnel. Some commenters 
particularly depicted the concerns raised by such U.S. market-facing 
activity as relating primarily to counterparty protection, and argued 
that it would be duplicative to apply Title VII security-based swap 
dealer requirements to that activity--on the grounds that agents acting 
on behalf of non-U.S. persons engaged in security-based swap dealing 
activity generally would be required to register as brokers and could 
be required to comply with relevant Exchange Act and Financial Industry 
Regulatory Authority (``FINRA'') requirements with respect to the 
security-based swap transactions that they intermediate.\21\
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    \21\ See id. at 8617-18.
    Exchange Act Section 15(a) requires persons who engage in 
brokerage activities involving securities to register with the 
Commission unless they can avail themselves of an exception from the 
registration requirement. The definition of ``broker'' in Exchange 
Act Section 3(a)(10), generally encompasses persons engaged in the 
business of effecting transactions in securities for the account of 
others, but does not encompass banks that are engaged in certain 
activities, which may include a significant proportion of banks' 
security-based swap dealing activity. See ANE Adopting Release, 81 
FR at 8619.
    The definition of ``security'' in the Exchange Act (see Exchange 
Act Section 3(a)(10)) encompasses security-based swaps. The 
Commission has provided time-limited exemptive relief, expiring 
February 5, 2020, from the application of certain Exchange Act 
requirements related to securities activities involving security-
based swaps. See Exchange Act Release No. 84991 (Jan. 25, 2019), 84 
FR 863 (Jan. 31, 2019).
---------------------------------------------------------------------------

    Commenters further sought to draw parallels between those 
circumstances and Exchange Act Rule 15a-6(a)(3), which provides an 
exemption from the broker-dealer registration requirement for a foreign 
broker-dealer that uses a registered broker-dealer to intermediate 
certain transactions.\22\ Certain commenters particularly suggested 
that non-U.S. persons should not be required to count the transactions 
at issue against the security-based swap dealer de minimis thresholds 
subject to conditions such as: That the U.S. activity be conducted by a 
registered broker-dealer; or by a bank that complies with certain 
business conduct and books and records requirements; or that the non-
U.S. person be registered in a jurisdiction that the Commission 
recognizes as comparable; or that the non-U.S. person be subject to 
Basel capital standards or be located in a G-20 jurisdiction.\23\
---------------------------------------------------------------------------

    \22\ See ANE Adopting Release, 81 FR at 8618.
    \23\ See id. at 8619.
---------------------------------------------------------------------------

    In rejecting those alternatives, the Commission stated its belief 
that ``the approach suggested by commenters is inconsistent with the 
comprehensive, uniform statutory framework established by Congress for 
the regulation of security-based swap dealers in Title VII.'' \24\ 
Significantly, in the Commission's view, broker-dealer regulation does 
not apply to banks engaged in certain activities.\25\ The Commission 
also emphasized that there are distinctions between the regulatory 
requirements applicable to broker-dealers and those applicable to 
security-based swap dealers.\26\ The Commission further explained that 
the absence of a U.S. activity trigger for de minimis threshold 
calculations would create a strong incentive to move booking for 
transactions with non-U.S. persons to booking entities that are non-
U.S. persons.\27\
---------------------------------------------------------------------------

    \24\ Id.
    \25\ Id.
    \26\ Id.
    \27\ Id. at 8620.
    The Commission also addressed one comment that suggested that 
allowing U.S. personnel to rely on broker-dealer requirements would 
increase efficiency by permitting such personnel to ``be subject to 
a single set of regulatory compliance obligations with respect to 
both their underlying securities transactions and derivatives 
transactions.'' In response, the Commission noted that such 
efficiencies would be unavailable to banks that are excepted from 
the ``broker'' definition for certain activities, that any such 
intra-firm efficiencies would be accompanied by competitive 
disparities, and that Exchange Act and FINRA rules applicable to 
broker-dealers may incorporate ``similar requirements'' once 
relevant exemptions terminate. See id. at 8620.
    The Commission further noted that concerns expressed by 
commenters could be mitigated in part by the availability of 
substituted compliance, which would permit non-U.S. person-dealers 
to comply with comparable foreign requirements as an alternative to 
complying with certain Title VII requirements. The Commission 
recognized, however, that substituted compliance may not be 
available for some requirements, and that the availability of 
substituted compliance would be contingent on the relevant foreign 
requirements being comparable to Title VII requirements. See id. at 
8620.

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[[Page 24210]]

4. Reconsideration of the Use of ``Arranged, Negotiated, or Executed'' 
Criteria
    Although the ``arranged, negotiated, or executed'' test for de 
minimis counting has yet to be implemented, as the prerequisites for 
the registration of security-based swap dealers have not yet been 
finalized, the Commission believes that it is appropriate to reconsider 
the approach it adopted in 2016 in light of ongoing concern among 
market participants and other commenters, potential reconsideration by 
the CFTC of the cross-border application provisions under Title VII 
governing swap market participants and swaps activities, and regulatory 
developments in other jurisdictions.
    First, market participants have continued to raise several concerns 
about the use of ``arranged, negotiated, or executed'' criteria. They 
argue that requiring a non-U.S. dealer to identify transactions that it 
arranges, negotiates or executes using personnel located in the United 
States for purposes of compliance with the rule poses significant 
operational challenges.\28\ In addition, they express concern that 
foreign non-dealer counterparties will avoid interacting with personnel 
located in the United States if doing so would subject them to U.S. 
regulatory requirements, given the potential for duplication or 
conflict with foreign regulatory requirements and the concomitant 
burden.\29\ To address these concerns, they state that they will be 
required to ``implement compliance systems that eliminate U.S.-located 
personnel from arranging, negotiating and executing the clients' non-
U.S. transactions,'' which in turn will lead to market fragmentation, 
lower levels of security-based swap activity by foreign dealers in the 
U.S. market, and potentially lower levels of liquidity, globally and in 
the U.S. market.\30\ These market participants argue that the risk that 
such transactions present to the U.S. financial market (and thus the 
benefit of subjecting such activity to the Commission's regulatory 
framework) is negligible and cannot justify the imposition of these 
requirements with their concomitant direct and indirect costs.\31\
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    \28\ See Institute of International Bankers (``IIB''), ``U.S. 
Supervision and Regulation of International Banks: Recommendations 
for the Report of the Treasury Secretary'' (Apr. 28, 2017) at 64-65 
(``IIB Treasury Letter'') (``These systems will create barriers 
within entities and corporate groups based solely on the geographic 
location of personnel, to the detriment of globalized risk 
management and at increased cost to clients. Personnel-based tests 
are also cumbersome to administer, requiring entities to make 
seemingly arbitrary distinctions about permitted activities of 
personnel based on their geographic location at any time.''); see 
also, e.g., Memorandum from Richard Gabbert, Counsel to Commissioner 
Hester M. Peirce, dated Nov. 30, 2018 (regarding a November 16, 2018 
meeting with representatives of SIFMA), available at https://www.sec.gov/comments/s7-05-14/s70514-4714190-176653.pdf; Memorandum 
from Richard Gabbert, Counsel to Commissioner Hester M. Peirce, 
dated Nov. 30, 2018 (regarding a November 16, 2018 meeting with 
representatives of the International Swaps and Derivatives 
Association (ISDA)), available at https://www.sec.gov/comments/s7-05-14/s70514-4714187-176649.pdf.
    \29\ In particular, IIB noted concerns raised by the need under 
this test for foreign clients interacting with personnel located in 
the United States to ``amend[ ] their trading documentation,'' 
change their trading practices to account for public reporting 
requirements, and change their interactions with trading platforms 
and clearing houses in order to comply with the Commission's rules. 
See id. at 64.
    \30\ See id. at 65 (``The increased costs of compliance and 
changes to market behavior will impede the ability of non-U.S. 
dealers to invest and participate in U.S. markets and could lead to 
the elimination of a significant number of jobs for U.S.-located 
personnel.''); see also Securities Industry and Financial Markets 
Association (``SIFMA''), ``Capital Markets Report--Modernizing and 
Rationalizing Regulation of U.S. Capital Markets'' (Aug. 10, 2017) 
at 115 (``SIFMA Treasury Letter'') (arguing that the test should be 
modified ``[t]o encourage firms to hire U.S. front office personnel 
and promote global market liquidity'').
    \31\ See IIB Treasury Letter at 65 (``The costs of these rules 
far exceed any risk-mitigating benefit. For non-U.S. transactions, 
the presence of U.S.-located personnel in arranging, negotiating or 
executing does not result in risk flowing to the United States.''); 
SIFMA Treasury Letter at 120 (``The participation of U.S. personnel 
does not create risks justifying the imposition of Title VII 
requirements to these otherwise non-U.S. swaps.'').
---------------------------------------------------------------------------

    The Treasury Department issued a report in October 2017 expressing 
the view that the Commission and the CFTC should ``reconsider the 
implications'' of applying Title VII rules--including the Commission's 
de minimis counting rules as well as other Commission and CFTC 
requirements--to certain transactions ``merely on the basis that U.S.-
located personnel arrange, negotiate, or execute the swap, especially 
for entities in comparably regulated jurisdictions.'' \32\ Since the 
publication of this report, market participants have reiterated their 
concerns. For example, two commenters jointly restated their concern 
that the test ``would discourage non-U.S. clients from interacting with 
U.S. personnel and impede risk management by expert trading personnel 
located in the U.S.'' and impose significant operational burdens, even 
though ``the benefits of applying additional requirements to 
[transactions captured by the test] are limited.'' \33\
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    \32\ See Treasury Department, ``A Financial System That Creates 
Economic Opportunities: Capital Markets'' (Oct. 2017) at 133-36, 
available at https://www.treasury.gov/press-center/press-releases/Documents/A-Financial-System-Capital-Markets-FINAL-FINAL.pdf.
    \33\ IIB and SIFMA, ``SEC-CFTC Harmonization: Key Issues under 
Title VII of the Dodd-Frank Act'' (June 21, 2018) at 5-6 (``IIB/
SIFMA 6/21/18 Letter''), available at https://www.sec.gov/comments/s7-05-14/s70514-3938974-167037.pdf.
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    The Commission further is aware of concerns that application of the 
counting rule could require a financial group to register multiple non-
U.S. entities as security-based swap dealers solely because each of 
those entities makes use of affiliated persons based in the United 
States to arrange, negotiate or execute security-based swap 
transactions with non-U.S. counterparties at levels exceeding the de 
minimis threshold. This may incentivize such groups to relocate U.S. 
personnel (or the activities performed by U.S. personnel) abroad to 
avoid triggering security-based swap dealer registration--a result that 
may raise issues similar to those raised by the commenters described 
above, including increased fragmentation to the detriment of U.S. 
market participants, which could harm U.S. markets and the U.S. 
economy. These concerns may be particularly acute for non-U.S. 
financial groups with dealers located in jurisdictions for which the 
Commission has not made a substituted compliance determination.\34\
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    \34\ Exchange Act Rule 3a71-6 permits registered non-U.S. 
security-based swap dealers to satisfy certain security-based swap 
dealer requirements--related to business conduct, supervision, chief 
compliance officers and trade acknowledgment and verification--by 
complying with foreign requirements that the Commission by order has 
determined are comparable to the analogous Title VII requirements.
---------------------------------------------------------------------------

    Additionally, commenters have continued to urge the Commission to 
harmonize its rules under Title VII with those of the CFTC, as the CFTC 
has largely implemented its regulatory framework for swaps and many, if 
not most, market participants that transact security-based swaps also 
transact swaps pursuant to the CFTC's rules.\35\ Market participants 
have noted potential inefficiencies that may arise from differences 
between the Commission's and the CFTC's rules and guidance, including 
the operational challenges that face a dealer's trading desk that 
transacts in both swaps and security-based swaps, as different or 
overlapping requirements may apply

[[Page 24211]]

depending on the specific product or products being traded in 
connection with a particular transaction.\36\ Commenters specifically 
have urged the Commission to amend its rules to be consistent with the 
CFTC's approach, which would not require transactions arranged, 
negotiated, or executed in the United States to be counted toward the 
de minimis thresholds.\37\ In the alternative, these commenters have 
suggested that the Commission consider an exception for such activity 
to the extent that it is carried out by U.S. personnel employed by an 
affiliate that is either a registered security-based swap dealer or a 
registered broker-dealer and the affiliated foreign dealer is ``subject 
to BCBS-IOSCO compliant capital and margin requirements.'' \38\
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    \35\ See IIB/SIFMA 6/21/18 Letter at 1; see also Futures 
Industry Association, ``Harmonization of SEC and CFTC Regulatory 
Frameworks,'' (Nov. 29, 2018) at 9, available at https://www.sec.gov/comments/s7-08-12/s70812-4722398-176717.pdf (encouraging 
the Commission and the CFTC to ``jointly propose and adopt rules 
reflecting a harmonized and unified approach to the cross-border 
application of the swaps and security-based swaps provisions of 
Title VII'').
    \36\ See IIB/SIFMA 6/21/18 Letter at 1.
    \37\ See id. at 5.
    \38\ Id.
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    In October 2018, CFTC Chairman Giancarlo issued a document setting 
forth his views regarding possible modifications to the CFTC's cross-
border application of its swap regulations.\39\ Among other things, the 
Giancarlo White Paper suggests an approach to the regulation of 
transactions arranged, negotiated, or executed by personnel located in 
the United States on behalf of a foreign dealer.\40\ The Giancarlo 
White Paper suggests that these transactions generally should be 
subject to U.S. requirements but also suggests that it may be 
appropriate to defer to the foreign jurisdiction's requirements if the 
foreign dealer is subject to regulation in a ``Comparable 
Jurisdiction.'' \41\
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    \39\ See Chris Giancarlo, CFTC Chairman, ``Cross-Border Swaps 
Regulation Version 2.0: A Risk-Based Approach with Deference to 
Comparable Non-U.S. Regulation'' (Oct. 1, 2018) (``Giancarlo White 
Paper''), available at https://www.cftc.gov/sites/default/files/2018-10/Whitepaper_CBSR100118.pdf.
    \40\ See Giancarlo White Paper at 76.
    \41\ See id. at 79, 80-81.
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    Finally, in recent years, foreign jurisdictions have continued to 
implement their own regulatory reforms of the OTC derivatives markets, 
making it important to explore possible ways to try to reduce 
conflicts, gaps, inconsistencies and overlaps between Title VII 
requirements and corresponding foreign requirements. For example, 
according to the Financial Stability Board (``FSB'') OTC Derivatives 
Working Group's 12th and 13th Progress Reports, only three FSB member 
jurisdictions had margin requirements for non-centrally cleared 
derivatives in force at the end of August 2016, while 16 FSB member 
jurisdictions had such margin requirements in force at the end of 
September 2018.\42\
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    \42\ See FSB, ``OTC Derivatives Market Reforms: Twelfth Progress 
Report on Implementation'' (Jun. 29, 2017) at 2, available at https://www.fsb.org/2017/06/otc-derivatives-market-reforms-twelfth-progress-report-on-implementation; and FSB, ``OTC Derivatives Market 
Reforms: Thirteenth Progress Report on Implementation'' (Nov. 19, 
2018) at 1, available at https://www.fsb.org/wp-content/uploads/P191118-5.pdf.
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    In light of the foregoing, the Commission believes that it is 
appropriate to reconsider its approach to these transactions before 
foreign dealers and other foreign market participants are required to 
comply with requirements based on ``arranged, negotiated, or executed'' 
criteria, as used in Exchange Act Rule 3a71-3 and elsewhere to 
implement Title VII in the cross-border context, to enable the 
Commission to avoid or mitigate any negative effects that the test may 
create if firms were required to comply with it as adopted. First, the 
Commission preliminarily believes that it is appropriate to provide 
guidance to market participants regarding the types of market-facing 
activity that the ``arranged'' or ``negotiated'' criteria would not 
encompass. Second, the Commission preliminarily believes that it is 
possible that an alternative approach may better balance any risks 
posed by such transactions to the U.S. market against the market-
fragmentation and operational risks of subjecting foreign dealers 
engaged in such transactions to the full range of Title VII regulatory 
requirements. Moreover, reconsideration of the Commission's approach 
would be consistent both with its statutory obligation to consult and 
coordinate with the CFTC and with both agencies' recent efforts to 
harmonize more closely, to the extent possible, their respective 
requirements under Title VII.\43\ Finally, reconsideration would permit 
the Commission to evaluate whether the implementation of regulatory 
reforms in foreign jurisdictions may address some of the concerns that 
led the Commission to adopt the various uses of the ``arranged, 
negotiated, or executed'' test in connection with the cross-border 
application of Title VII.
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    \43\ See ``Chief Compliance Officer Duties and Annual Report 
Requirements for Futures Commission Merchants, Swap Dealers, and 
Major Swap Participants,'' 83 FR 43510 (Aug. 27, 2018); ``Capital, 
Margin, and Segregation Requirements for Security-Based Swap Dealers 
and Major Security-Based Swap Participants and Capital Requirements 
for Broker-Dealers,'' Exchange Act Release No. 84409 (Oct. 11, 
2018), 83 FR 53007 (Oct. 19, 2018).
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    For all of these reasons, the Commission preliminarily believes 
that it is appropriate to provide guidance about the scope of the 
``arranged'' or ``negotiated'' criteria. The proposed guidance is 
designed to provide market participants with additional information 
regarding the types of conduct that would trigger the Title VII 
requirements that use those criteria, and hence provide improved 
clarity regarding the types of market-facing conduct that would not be 
subject to the relevant Title VII requirements.
    Separately, the Commission is proposing an exception from the 
application of the ``arranged, negotiated, or executed'' test in 
connection with the de minimis counting requirement in Exchange Act 
Rule 3a71-3(b)(1)(iii)(C), and is soliciting comment regarding possible 
additional exceptions to the use of those criteria in Exchange Act 
Rules 3a71-3(b)(1)(iii)(A) (with regard to certain dealing transactions 
involving certain foreign branches of a registered security-based swap 
dealer), 3a71-3(c) (with regard to the cross-border application of 
security-based swap dealer business conduct requirements), 3a67-10 
(with regard to the cross-border application of security-based swap 
dealer business conduct requirements), and Regulation SBSR Rules 
908(a)(1)(v) and 908(b)(5) (relating to cross-border application of 
regulatory reporting and public dissemination requirements). The 
Commission preliminarily believes that the proposed exception to Rule 
3a71-3(b)(1)(iii)(C) would reduce the market fragmentation and 
operational risks associated with the ``arranged, negotiated, or 
executed'' test, provide a possible framework for reducing divergence 
from the CFTC in connection with the treatment of these transactions, 
and appropriately recognize the role that foreign regulation may play 
in addressing certain risks that may arise from these transactions, 
while protecting the important interests that underpin that use of the 
``arranged, negotiated, or executed'' test.

B. Proposed Guidance and Amendments Related to the Certification and 
Opinion of Counsel Requirements

    In 2015, the Commission adopted rules regarding the registration of 
SBS Entities.\44\ These rules include certain requirements specific to 
nonresident SBS Entities. In particular, Exchange Act Rule 15Fb2-4 
requires, among other things, that each nonresident SBS Entity 
registering with the Commission certify that it can, as a matter of 
law, and will provide the Commission with prompt access to its books 
and records and

[[Page 24212]]

submit to on-site inspection and examination by the Commission.\45\ It 
also requires that the nonresident SBS Entity obtain and provide to the 
Commission an opinion of counsel to support this certification.\46\ As 
the Commission stated when adopting these requirements, significant 
elements of an effective regulatory regime are the Commission's 
abilities to access registered SBS Entities' books and records and to 
inspect and examine the operations of registered SBS Entities.\47\
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    \44\ See Registration Process for Security-Based Swap Dealers 
and Major Security-Based Swap Participants, Exchange Act Release No. 
75611 (Aug. 5, 2015), 80 FR 48964 (Aug. 14, 2015) (``Registration 
Adopting Release'').
    \45\ See 17 CFR 240.15Fb2-4(c)(1)(i).
    \46\ See 17 CFR 240.15Fb2-4(c)(1)(ii). As discussed below, the 
Commission has incorporated these certification and opinion of 
counsel requirements into Exchange Act Rule 3a71-6, which governs 
applications for substituted compliance.
    \47\ See Registration Adopting Release, 80 FR at 48981.
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    The certification and opinion of counsel requirements adopted by 
the Commission are designed to provide assurances that the Commission 
is able to access directly the books and records of a nonresident SBS 
Entity as provided under Sections 15F and 17 of the Exchange Act and 
the Commission's rules thereunder, and conduct on-site inspections and 
examinations of those records.\48\ In support of these endeavors, the 
Commission has proposed recordkeeping rules that would require an SBS 
Entity to furnish promptly to a representative of the Commission 
legible, true, complete, and current copies of those records of the SBS 
Entity that are required to be preserved by the rules, or any other 
records of the SBS Entity subject to examination or required to be made 
or maintained pursuant to the Exchange Act that are requested by a 
representative of the Commission.\49\
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    \48\ See id.
    \49\ See paragraph (j) of Exchange Act Rule 17a-4, and paragraph 
(g) of proposed Exchange Act Rule 18a-6 (Recordkeeping and Reporting 
Requirements for Security-Based Swap Dealers, Major Security-Based 
Swap Participants, and Broker-Dealers; Capital Rule for Certain 
Security-Based Swap Dealers, Exchange Act Release No. 71958 (Apr. 
17, 2014), 79 FR 25194 (May 2, 2014) (``Recordkeeping and Reporting 
Proposing Release'')).
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    The Commission is proposing guidance to Exchange Act Rule 15Fb2-4 
regarding: (i) The foreign laws that must be covered by the 
certification and opinion of counsel; (ii) the scope of the books and 
records that are the subject of the certification and opinion of 
counsel, namely that the certification and opinion of counsel need only 
address: (1) Records that relate to the ``U.S. business'' (as defined 
in Exchange Act Rule 3a71-3(a)(8)) of the nonresident SBS Entity; and 
(2) financial records necessary for the Commission to assess the 
compliance of the nonresident SBS Entity with capital and margin 
requirements under the Exchange Act and rules promulgated by the 
Commission thereunder, if these capital and margin requirements apply 
to the nonresident SBS Entity; (iii) predication of a firm's 
certification and opinion of counsel, as necessary, on the nonresident 
SBS Entity obtaining prior consent of the persons whose information is 
or will be included in the books and records to allow the firm to 
promptly provide the Commission with direct access to its books and 
records and to submit to on-site inspection and examination; (iv) 
applicability of the certification and opinion of counsel to contracts 
entered into prior to the date on which the SBS Entity submits an 
application for registration pursuant to Section 15F(b); and (v) 
whether the certification and opinion of counsel submitted by a 
nonresident SBS Entity can take into account approvals, authorizations, 
waivers or consents provided by local regulators.
    The Commission is also proposing to amend Exchange Act Rule 15Fb2-1 
to provide additional time for a nonresident SBS Entity to submit the 
certification and opinion of counsel required under Exchange Act Rule 
15Fb2-4(c)(1). The Commission is proposing to add new paragraphs (d)(2) 
and (e)(2) to Exchange Act Rule 15Fb2-1. Proposed paragraph (d)(2) 
would provide that a nonresident applicant that is unable to provide 
the certification and opinion of counsel required under Rule 15Fb2-
4(c)(1) shall be conditionally registered, for up to 24 months after 
the compliance date for Rule 15Fb2-1, if the applicant submits a Form 
SBSE-C and a Form SBSE, SBSE-A, or SBSE-BD, as appropriate, that is 
complete in all respects but for the failure to provide the 
certification and the opinion of counsel required by Rule 15Fb2-
4(c)(1). Proposed paragraph (e)(2) would provide that if a nonresident 
SBS Entity became conditionally registered in reliance on paragraph 
(d)(2), the firm would remain conditionally registered until the 
Commission acts to grant or deny ongoing registration, and that if the 
nonresident SBS Entity fails to provide the certification and opinion 
of counsel within 24 months of the compliance date for Rule 15Fb2-1, 
the Commission may institute proceedings to determine whether ongoing 
registration should be denied. As indicated in the Registration 
Adopting Release, once an SBS Entity is conditionally registered, all 
of the Commission's rules applicable to registered SBS Entities apply 
to the entity and it must comply with them.
    The guidance regarding the certification and opinion of counsel 
requirements would also be relevant to Exchange Act Rule 3a71-6, which 
allows SBS Entities to comply with certain requirements under Section 
15F of the Exchange Act through substituted compliance.\50\ Paragraph 
(c)(2)(ii) of Rule 3a71-6 provides that substituted compliance 
applications by parties or groups of parties--other than foreign 
financial regulatory authorities--must include the certification and 
opinion of counsel associated with the SBS Entity registration 
requirements as if the party were subject to that requirement at the 
time of the request. Recognizing the expected time necessary for the 
Commission to consider substituted compliance applications it receives, 
the Commission welcomes submissions of such applications with respect 
to any of its final rules for which substituted compliance is 
potentially available. Consistent with this position, the Commission 
wishes to clarify that, during the pendency of this proposal, the 
Commission will consider all substituted compliance applications 
submitted by parties or groups of parties who are not foreign 
regulatory authorities even when not accompanied by a certification or 
opinion of counsel.\51\ This clarification, however, does not mean that 
the Commission would grant any application for substituted compliance 
submitted by such parties or groups of parties before the required 
certification and opinion of counsel are filed.
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    \50\ Exchange Act Rule 3a71-6.
    \51\ The Commission's rules do not require that applications 
submitted by foreign regulatory authorities be accompanied by a 
certification or opinion of counsel. Exchange Act Rule 3a71-6(c).
---------------------------------------------------------------------------

C. Proposed Amendment to Commission Rule of Practice 194

    Exchange Act Section 15F(b)(6) makes it unlawful for an SBS Entity 
to permit an associated person \52\ who is subject to a statutory 
disqualification \53\ to effect or

[[Page 24213]]

be involved in effecting security-based swaps on behalf of the SBS 
Entity if the SBS Entity knew, or in the exercise of reasonable care 
should have known, of the statutory disqualification, ``[e]xcept to the 
extent otherwise specifically provided by rule, regulation, or order of 
the Commission.'' \54\ In this regard, Exchange Act Section 15F(b)(6) 
gives the Commission the discretion to determine, by rule, regulation 
or order, that a statutorily disqualified associated person may effect 
or be involved in effecting security-based swaps on behalf of an SBS 
Entity, and/or to establish rules concerning the statutory prohibition 
in Exchange Act Section 15F(b)(6).\55\ As outlined below, the 
Commission has taken several actions with respect to the prohibition in 
Section 15F(b)(6) of the Exchange Act in its implementation of Title 
VII of the Dodd-Frank Act.\56\
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    \52\ Exchange Act Section 3(a)(70) generally defines the term 
``person associated with'' an SBS Entity to include (i) any partner, 
officer, director, or branch manager of an SBS Entity (or any person 
occupying a similar status or performing similar functions); (ii) 
any person directly or indirectly controlling, controlled by, or 
under common control with an SBS Entity; or (iii) any employee of an 
SBS Entity. See 15 U.S.C. 78c(a)(70). The definition generally 
excludes persons whose functions are solely clerical or ministerial. 
Id. The definition of ``person'' under Exchange Act Section 3(a)(9) 
is not limited to natural persons, but extends to both entities and 
natural persons. 15 U.S.C. 78c(a)(9) (``The term `person' means a 
natural person, company, government, or political subdivision, 
agent, or instrumentality of a government.'').
    \53\ The term statutory disqualification as used in Exchange Act 
Section 15F(b)(6) parallels the definition of statutory 
disqualification in Exchange Act Section 3(a)(39)(A)-(F), 15 U.S.C. 
78c(a)(39)(A)-(F). See ``Applications by Security-Based Swap Dealers 
or Major Security-Based Swap Participants for Statutorily 
Disqualified Associated Persons To Effect or Be Involved in 
Effecting Security-Based Swaps,'' Exchange Act Release No. 84858 
(Dec. 19, 2018), 84 FR 4906 (Feb. 19, 2019) (``Rule of Practice 194 
Adopting Release'').
    \54\ 15 U.S.C. 78o-10(b)(6). The statutory prohibition in 
Exchange Act Section 15F(b)(6) is substantially the same as the 
statutory provision for a swap dealer or major swap participant 
(collectively ``Swap Entities'') in Section 4s(b)(6) of the CEA, 7 
U.S.C. 6s(b)(6).
    \55\ See id.
    \56\ On June 15, 2011, the Commission issued an order that, 
among other things, granted temporary relief from compliance with 
Exchange Act Section 15F(b)(6) for persons subject to a statutory 
disqualification who were, as of July 16, 2011, associated with an 
SBS Entity and who effected or were involved in effecting security-
based swaps on behalf of such SBS Entity and allowed such persons to 
continue to be associated with an SBS Entity until the date upon 
which rules adopted by the Commission to register SBS Entities 
became effective. See ``Temporary Exemptions and Other Temporary 
Relief, Together With Information on Compliance Dates for New 
Provisions of the Securities Exchange Act of 1934 Applicable to 
Security-Based Swaps,'' Exchange Act Release No. 64678 (June 15, 
2011), 76 FR 36287, 36301, 36305-07 (Jun. 22, 2011) (``June 2011 
Temporary Exemptions Order''); see also ``Order Extending Certain 
Temporary Exemptions and a Temporary and Limited Exception Related 
to Security-Based Swaps,'' Exchange Act Release No. 75919 (Sept. 15, 
2015), 80 FR 56519 (Sep. 18, 2015) (extending the June 2011 
Temporary Exemptions Order).
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1. Registration Requirements for SBS Entities

    On August 5, 2015, the Commission adopted registration requirements 
for SBS Entities.\57\ Several aspects of the adopted rules relate to 
the statutory prohibition in Exchange Act Section 15F(b)(6). In 
particular, the Commission adopted Rule 15Fb6-2(a), which requires that 
an SBS Entity certify electronically on its Form SBSE-C that it neither 
knows, nor in the exercise of reasonable care should have known, that 
any person associated with that SBS Entity who effects or is involved 
in effecting security-based swaps on its behalf is subject to a 
statutory disqualification, unless otherwise specifically provided by 
rule, regulation or order of the Commission.\58\ In addition, Rule 
15Fb6-2(b) requires that, to support the certification required by Rule 
15Fb6-2(a), the Chief Compliance Officer of an SBS Entity, or his or 
her designee, must review and sign a questionnaire or application for 
employment--that the SBS Entity is required to obtain pursuant to the 
relevant recordkeeping rule--which has been executed by each associated 
person who is a natural person and who effects or is involved in 
effecting security-based swaps on behalf of the SBS Entity. The 
questionnaire or application for employment, in turn, would serve to 
verify that the associated natural person is not subject to statutory 
disqualification.\59\
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    \57\ See Registration Adopting Release.
    \58\ See 17 CFR 240.15Fb6-2(a) and Form SBSE-C (17 CFR 
249.1600c).
    \59\ See 17 CFR 240.15Fb6-2(b).
---------------------------------------------------------------------------

    The Commission also included within the Registration Adopting 
Release guidance on the scope of the phrase ``involved in effecting 
security-based swaps,'' as that phrase is used in Exchange Act Section 
15F(b)(6).\60\ Specifically, the Commission stated that the term 
``involved in effecting security-based swaps'' generally means engaged 
in functions necessary to facilitate the SBS Entity's security-based 
swap business, including, but not limited to the following activities: 
(1) Drafting and negotiating master agreements and confirmations; (2) 
recommending security-based swap transactions to counterparties; (3) 
being involved in executing security-based swap transactions on a 
trading desk; (4) pricing security-based swap positions; (5) managing 
collateral for the SBS Entity; and (6) directly supervising persons 
engaged in the above-described activities.\61\
---------------------------------------------------------------------------

    \60\ See Registration Adopting Release, 80 FR at 48974, 48976.
    \61\ See id. at 48976.
---------------------------------------------------------------------------

2. Commission Rule of Practice 194
    On December 19, 2018, the Commission adopted Rule of Practice 194, 
which provides, among other things, a process by which an SBS Entity 
could apply to the Commission to permit an associated person who is a 
natural person and who is subject to a statutory disqualification to 
effect or be involved in effecting security-based swaps on behalf of 
the SBS Entity.\62\ Rule of Practice 194 establishes a process by which 
the Commission can assess on a case-by-case basis whether to grant 
relief from the statutory prohibition in Exchange Act Section 
15F(b)(6).
---------------------------------------------------------------------------

    \62\ See Rule of Practice 194 Adopting Release, 84 FR at 4906-
47; see also 17 CFR 240.194(a)-(i).
---------------------------------------------------------------------------

    Rule of Practice 194 excludes associated persons that are not 
natural persons (defined herein as ``associated person entities'') from 
the statutory disqualification prohibition in Exchange Act Section 
15F(b)(6).\63\ As the Commission explained when adopting Rule of 
Practice 194, granting an automatic exclusion for associated person 
entities could reduce potential disruptions to the business of SBS 
Entities that could lead to possible market disruption.\64\ The 
exclusion for associated person entities also results in consistency 
with the CFTC's approach with respect to the statutory prohibition for 
Swap Entities as set forth in CEA Section 4s(b)(6).\65\
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    \63\ See 17 CFR 240.194(c); see also Rule of Practice 194 
Adopting Release, 84 FR at 4906.
    \64\ See Rule of Practice 194 Adopting Release, 84 FR at 4911.
    \65\ See 7 U.S.C. 6s(b)(6). The CFTC, with respect to 
statutorily disqualified associated persons of swap entities, limits 
the definition of associated persons of swap entities to natural 
persons. See 17 CFR 1.3. As a result, the prohibition in CEA Section 
4s(b)(6) applies to natural persons (not entities) associated with a 
swap entity.
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3. Proposed Rule of Practice 194(c)(2)
    As the Commission noted in adopting Rule of Practice 194, there may 
be instances where it is consistent with the public interest to permit 
an associated person who is subject to a statutory disqualification to 
effect or be involved in effecting security-based swaps on behalf of an 
SBS Entity.\66\ As discussed in greater detail below, the Commission is 
now proposing to amend Rule of Practice 194, by including proposed 
paragraph (c)(2), to exclude an SBS Entity, subject to certain 
limitations, from the prohibition in Exchange Act Section 15F(b)(6) 
with respect to an associated person who is a natural person who (i) is 
not a U.S. person and (ii) does not effect and is not involved in 
effecting security-based swap transactions with or for counterparties 
that are U.S. persons, other than a security-based swap transaction 
conducted through a foreign branch of a counterparty that is a U.S. 
person.
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    \66\ See Rule of Practice 194 Adopting Release, 84 FR at 4908.
---------------------------------------------------------------------------

D. Proposed Exchange Act Rule 18a-5

    In April 2014, the Commission proposed recordkeeping, reporting, 
and notification requirements applicable to SBS Entities, securities 
count requirements applicable to certain security-based swap dealers, 
and

[[Page 24214]]

additional recordkeeping requirements applicable to broker-dealers to 
account for their security-based swap and swap activities.\67\ The 
proposed requirements were modeled on existing broker-dealer 
requirements.\68\ The Commission received a number of comments in 
response to these proposals.\69\ Separately, the Commission proposed 
rules governing the cross-border treatment of recordkeeping and 
reporting requirements with respect to SBS Entities.\70\ The Commission 
received comments in response to these cross-border proposals as 
well.\71\
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    \67\ See Recordkeeping and Reporting Proposing Release.
    \68\ See id., 79 FR at 25196-97 (providing the rationale for 
modeling the proposed requirements on the relevant broker-dealer 
requirements).
    \69\ The comment letters are available at https://www.sec.gov/comments/s7-05-14/s70514.shtml.
    \70\ See ``Cross-Border Security-Based Swap Activities; Re-
Proposal of Regulation SBSR and Certain Rules and Forms Relating to 
the Registration of Security-Based Swap Dealers and Major Security-
Based Swap Participants,'' Exchange Act Release No. 69490 (May 1, 
2013), 78 FR 30968 (May 23, 2013) (``Cross-Border Proposing 
Release'').
    \71\ The comment letters are available at https://www.sec.gov/comments/s7-02-13/s70213.shtml.
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    In the Recordkeeping and Reporting Proposing Release, the 
Commission, among other things, proposed new Exchange Act Rule 18a-5 
(patterned after Exchange Act Rule 17a-3--the recordkeeping rule for 
registered broker-dealers) to establish recordkeeping standards for 
firms without a prudential regulator that are registered with the 
Commission only as an SBS Entity (and not as a broker-dealer as well) 
and SBS Entities for which there is a prudential regulator 
(collectively, ``stand-alone and bank SBS Entities'').\72\
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    \72\ See Recordkeeping and Reporting Proposing Release, 79 FR at 
25205.
---------------------------------------------------------------------------

    As part of that rulemaking, the Commission proposed to require that 
an SBS Entity make and keep current a questionnaire or application for 
employment for each associated person who is a natural person, that 
includes the associated person's identifying information, business 
affiliations for the past ten years, relevant disciplinary history, 
relevant criminal record, and place of business, among other things 
(hereinafter the ``questionnaire requirement'').\73\ The Commission 
also proposed a definition of the term ``associated person'' that would 
include persons associated with an SBS Entity as defined under Section 
3(a)(70) of the Exchange Act.\74\ One commenter requested that the 
Commission modify the rule for foreign SBS Entities so that the 
questionnaire requirement would not apply to associated persons who 
effect or are involved in effecting security-based swap transactions 
with non-U.S. persons or foreign branches.\75\ In a subsequent letter, 
this commenter also requested that the rule be modified to exclude from 
the questionnaire requirement an associated person employed or located 
in a non-U.S. branch, office, or affiliate of the firm in circumstances 
where: (1) Applicable non-U.S. law prohibits the firm from conducting 
background checks on the associated person and consent does not cure 
the prohibition or may not be a condition of employment; (2) the 
associated person is not subject to a statutory disqualification that 
the firm actually knows about; (3) the associated person does not 
effect and is not involved in effecting security-based swaps with U.S. 
counterparties on behalf of the firm; and (4) the associated person 
complies with applicable registration and licensing requirements in the 
jurisdiction(s) where he or she effects or is involved in effecting 
security-based swaps on behalf of the firm.\76\
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    \73\ Paragraphs (a)(10)(i) and (b)(8)(i) of proposed Rule 18a-5.
    \74\ Id.
    \75\ See SIFMA letter to Kevin M. O'Neill, dated Sep. 5, 2014 
(``SIFMA 9/5/14 Letter'') at 9, available at https://www.sec.gov/comments/s7-05-14/s70514-10.pdf.
    \76\ See Letter from IIB and SIFMA, dated Aug. 26, 2016 (``IIB/
SIFMA 8/26/16 Letter''), available at https://www.sec.gov/comments/s7-05-14/s70514-18.pdf.
---------------------------------------------------------------------------

    As indicated in Exchange Act Rule 15Fb6-2, the questionnaire 
requirement is intended to serve as a basis for a background check of 
the associated person who is a natural person and who effects or is 
involved in effecting security-based swap transactions on the SBS 
Entity's behalf to verify that the person is not subject to statutory 
disqualification.\77\ The Commission preliminarily believes that it is 
appropriate to provide flexibility with respect to the questionnaire 
requirement as applied to associated persons of stand-alone and bank 
SBS Entities. As discussed above in Section I.C.3., the Commission is 
proposing to add paragraph (c)(2) to Rule of Practice 194 in order to 
provide an exclusion from the prohibition in Section 15F(b)(6) of the 
Exchange Act with respect to an associated person who is not a U.S. 
person and does not effect and is not involved in effecting security-
based swap transactions with or for counterparties that are U.S. 
persons, other than a security-based swap transaction conducted through 
a foreign branch of a counterparty that is a U.S. person, subject to 
certain conditions. Consistent with this proposal, the Commission is 
also proposing modifications to proposed Rule 18a-5 to provide that a 
stand-alone or bank SBS Entity is not required to make and keep current 
a questionnaire or application for employment executed by an associated 
person if the SBS Entity is excluded from the prohibition in Section 
15F(b)(6) of the Exchange Act with respect to such associated person.
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    \77\ See 17 CFR 240.15Fb6-2(b).
---------------------------------------------------------------------------

    The Commission also is proposing modifications to proposed Rule 
18a-5 to address situations where the laws of a non-U.S. jurisdiction 
in which an associated person is employed or located may prohibit a 
stand-alone or bank SBS Entity from receiving, creating or maintaining 
a record of any of the information mandated by the questionnaire 
requirement.\78\ The modifications would apply with respect to an 
associated person who is not a U.S. person and would provide that the 
stand-alone or bank SBS Entity need not record certain information 
mandated by the questionnaire requirement with respect to that person 
if the receipt of that information, or the creation or maintenance of 
records reflecting such information, would result in a violation of 
applicable law in the jurisdiction in which the associated person is 
employed or located. The Commission emphasizes, however, that every SBS 
Entity must still comply with Section 15F(b)(6) of the Exchange Act and 
Rule 15Fb6-2 with respect to every associated person who effects or is 
involved in effecting security-based swaps on behalf of the SBS Entity 
absent an exclusion from the statutory disqualification prohibition in 
Section 15F(b)(6) of the Exchange Act.
---------------------------------------------------------------------------

    \78\ See paragraphs (a)(10)(iii) and (b)(8)(iii) of Rule 18a-5, 
as proposed.
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II. Proposed Guidance Regarding the Meaning of ``Arranged'' and 
``Negotiated'' in Connection With the Cross-Border Application of Title 
VII

A. Provision of ``Market Color''

1. Earlier Guidance
    In adopting the Exchange Act Rule 3a71-3(b)(1)(iii)(C) ``arranged, 
negotiated, or executed'' de minimis counting standard applicable to 
transactions between two non-U.S. counterparties, the Commission 
addressed the types of activity that would--and would not--trigger that 
portion of the de minimis test. The Commission subsequently relied on 
the analysis underpinning that use of the ``arranged, negotiated, or 
executed'' test within the de minimis counting standard when the 
Commission adopted final rules incorporating those criteria

[[Page 24215]]

into the cross-border application of security-based swap dealer 
business conduct provisions,\79\ and into the cross-border application 
of Regulation SBSR's regulatory reporting and public dissemination 
provisions.\80\ The Commission previously incorporated those criteria 
into the portion of the security-based swap dealer de minimis exception 
related to transactions involving counterparties that are foreign 
branches of registered security-based swap dealers,\81\ and also has 
incorporated those criteria into Title VII rules regarding major 
security-based swap participants.\82\
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    \79\ Exchange Act Rule 3a71-3(c) excuses a registered security-
based swap dealer from compliance with certain security-based swap 
dealer business conduct standards with respect to its foreign 
business. That rule incorporates a standard, via underlying 
definitions of ``foreign business,'' ``U.S. business'' and 
``transaction conducted through a foreign branch'' (see Exchange Act 
Rules 3a71-3(a)(3), (8) and (9)), that uses ``arranged, negotiated, 
and executed'' terminology that functionally is equivalent to the 
``arranged, negotiated, or executed'' standard incorporated by Rule 
3a71-3(b)(1)(iii)(C).
    In adopting Rule 3a71-3(c), the Commission particularly stated 
that the business conduct rules should apply to transactions that a 
foreign security-based swap dealer ``arranges, negotiates, or 
executes using personnel located in a U.S. branch or office,'' both 
to ``preserve customer protections for U.S. counterparties that 
would expect to benefit from the protection afforded to them by 
Title VII'' and to ``help maintain market integrity by subjecting 
the large number of transactions that involve relevant dealing 
activity in the United States to these requirements, even if both 
counterparties are non-U.S. persons.'' See Business Conduct 
Standards for Security-Based Swap Dealers and Major Security-Based 
Swap Participants, Exchange Act Release No. 77617 (Apr. 14, 2016), 
81 FR 29960, 30065 (May 13, 2016) (``Business Conduct Adopting 
Release''). The Commission further stated that the business conduct 
rules need not be applied to a U.S. dealer's transactions that have 
been arranged, negotiated or executed through a foreign branch with 
a non-U.S. counterparty (or with another foreign branch 
counterparty), reasoning that ``Title VII is concerned with the 
protection of U.S. markets and participants in those markets, and it 
remains our view that imposing these requirements on a U.S.-person 
dealer when it arranges, negotiates, or executes through its foreign 
branch with another foreign branch or a non-U.S. person would 
produce little or no benefit to U.S. market participants.'' Id., 81 
FR at 30066.
    \80\ In incorporating an ``arranged, negotiated, or executed'' 
standard into Regulation SBSR Rules 908(a)(1)(v) and 908(b)(5), 
regarding the cross-border application of regulatory reporting and 
public dissemination requirements, the Commission stated that 
``[c]onsistent with its territorial application of Title VII 
requirements, the Commission believes that, when a foreign dealing 
entity uses U.S. personnel to arrange, negotiate, or execute a 
transaction in a dealing capacity, that transaction occurs at least 
in part within the United States and is relevant to the U.S. 
security-based swap market,'' and that ``[a]s the Commission has 
stated previously, declining to apply Title VII requirements to 
security-based swaps of foreign dealing entities that use U.S. 
personnel to engage in ANE activity would have the effect of 
allowing such entities `to exit the Title VII regulatory regime 
without exiting the U.S. market.' '' See Regulation SBSR--Reporting 
and Dissemination of Security-Based Swap Information, Exchange Act 
Release No. 78321 (Jul. 14, 2016), 81 FR 53546, 53590-91 (footnote 
omitted).
    \81\ Exchange Act Rule 3a71-3(b)(1)(iii)(A) generally requires 
non-U.S. persons to count transactions with U.S. counterparties for 
purposes of the de minimis thresholds, but carves out transactions 
that constitute ``transactions conducted through a foreign branch of 
the counterparty.'' The definition of ``transaction conducted 
through a foreign branch'' in part requires that the transaction be 
``arranged, negotiated, and executed on behalf of the foreign branch 
solely by persons located outside the United States.'' See Exchange 
Act Rule 3a71-3(a)(3)(i)(B).
     When the Commission adopted that foreign branch-related de 
minimis counting requirement, the Commission concluded that the 
definition of ``transaction conducted through a foreign branch'' 
identifies the functions associated with foreign branch activity 
``in a manner that appropriately focuses the exclusion for non-U.S. 
person's transactions toward situations in which the branch performs 
the core dealing functions outside the United States.'' See 
``Application of `Security-Based Swap Dealer' and `Major Security-
Based Swap Participant' Definitions to Cross-Border Security-Based 
Swap Activities; Republication'' Exchange Act Release No. 72472 
(Jun. 25, 2014), 81 FR 47278, 47322 (Aug. 12, 2014) (``Cross-Border 
Adopting Release''). That is consistent with the analysis underlying 
the use of ``arranged, negotiated, or executed'' test in connection 
with the de minimis counting provisions of Rule 3a71-
3(b)(1)(iii)(C), related to transactions between two non-U.S. 
persons, which was intended to prevent the conduct of an 
unregistered security-based swap dealing business in the United 
States. See notes 18 and 19, supra.
    Unless specified otherwise, references to the application of the 
``arranged, negotiated, or executed'' test in the context of de 
minimis counting refer both to the Rule 3a71-3(b)(1)(iii)(C) test 
regarding dealing transactions involving two non-U.S. persons, and 
the Rule 3a71-3(b)(1)(iii)(A) test regarding dealing transactions 
involving a counterparty that is the foreign branch of a registered 
security-based swap dealer.
    \82\ The rule implementing the ``major security-based swap 
participant'' definition generally requires consideration of a non-
U.S. person's security-based swap positions with U.S. 
counterparties, but excludes positions that arise from transactions 
conducted through a foreign branch of a counterparty that is a 
registered security-based swap dealer. See Exchange Act Rule 3a67-
10(b)(3)(i). This rule incorporates the Rule 3a71-3 definition of 
``transaction conducted through a foreign branch,'' which makes use 
of ``arranged, negotiated, and executed'' criteria. In adopting that 
provision, the Commission noted its consistency with the security-
based swap dealer de minimis counting provision related to 
transactions with counterparties that are foreign branches of 
registered security-based swap dealers. See Cross-Border Adopting 
Release, 79 FR at 47343.
    U.S. and non-U.S. major security-based swap participants 
similarly are excluded from having to comply with certain business 
conduct requirements in connection with transactions conducted 
through a foreign branch, based on that same definition. See 
Exchange Act Rule 3a67-10(d). In adopting that provision, the 
Commission noted its consistency with the cross-border application 
of security-based swap dealer business conduct rules. See Business 
Conduct Adopting Release, 81 FR at 30069.
---------------------------------------------------------------------------

    In discussing the ``arranged, negotiated, or executed'' test in the 
context of the de minimis counting standard applicable to transactions 
involving two non-U.S. counterparties, the Commission explained that 
the terms ``arrange'' and ``negotiate'' were intended to ``indicate 
market-facing activity of sales or trading personnel in connection with 
a particular transaction, including interactions with counterparties or 
their agents.'' \83\ The Commission added that the term ``execute'' in 
the rule ``refers to the market-facing act that, in connection with a 
particular transaction, causes the person to become irrevocably bound 
under the security-based swap under applicable law.'' \84\
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    \83\ See ANE Adopting Release, 81 FR at 8622.
    \84\ See id. The Commission added that the test also applies 
when U.S. persons direct other persons to arrange, negotiate or 
execute particular security-based swaps. ``In other words, sales and 
trading personnel of a non-U.S. person who are located in the United 
States cannot avoid application of this rule by simply directing 
other personnel to carry out dealing activity[.]'' The Commission 
further noted that the test includes transactions in which personnel 
located in a U.S. branch or office ``specify the trading strategy or 
techniques carried out through algorithmic trading or automated 
electronic execution of security-based swaps, even if the related 
server is located outside the United States.'' Id. at 8623.
---------------------------------------------------------------------------

    The Commission further distinguished market-facing activity by 
sales and trading personnel from activity by personnel who perform 
back-office functions that generally do not involve direct contact with 
counterparties. In doing so, the Commission identified types of 
activities that would not require counting of transactions against the 
de minimis thresholds, including: Processing trades and other back-
office activities; designing security-based swaps without engaging in 
market-facing activity in connection with specific transactions; 
preparing underlying documentation including negotiating master 
agreements (``as opposed to negotiating with the counterparty the 
specific economic terms of a particular security-based swap 
transaction''); and clerical and ministerial tasks such as entering 
executed transactions on a non-U.S. person's books.\85\
---------------------------------------------------------------------------

    \85\ See id. at 8622.
---------------------------------------------------------------------------

    In addition, the Commission stated that it generally viewed the 
test as requiring the counting of transactions arranged, negotiated or 
executed by, for example, ``personnel assigned to, on an ongoing or 
temporary basis, or regularly working in a U.S. branch or office.'' 
\86\

[[Page 24216]]

On the other hand, the counting standard does not extend to 
transactions arranged, negotiated or executed ``by personnel assigned 
to a foreign office if such personnel are only incidentally in the 
United States,'' such as while attending an educational or industry 
conference.\87\
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    \86\ Id. at 8623. The Commission separately explained that the 
rule applies to security-based swap transactions that the non-U.S. 
person, in connection with its dealing activity, arranges, 
negotiates or executes, using personnel located in a U.S. branch or 
office, even when such transactions are in response to inquiries 
from a non-U.S. person counterparty outside business hours in the 
counterparty's jurisdiction and occur pursuant to product, credit 
and market risk parameters set by management personnel outside the 
United States. See id. at 8623-24.
    \87\ See id. at 8623. The Commission stated that this should 
mitigate the burdens of determining whether a particular transaction 
needs to be counted. See id.
    More generally, the Commission emphasized that the rule would 
avoid the need for the non-U.S. person to monitor the location of 
its counterparty's personnel or receive associated representations. 
See id. at 8621-22; see also id. at 8612-13 (discussing prior 
Commission proposal to address the cross-border application of the 
security-based swap dealer definition via a test that would have 
required counting of transactions that were solicited, negotiated, 
executed or booked in the United States by or on behalf of either 
counterparty).
---------------------------------------------------------------------------

2. Proposed Supplemental Guidance
    The Commission is proposing to provide supplemental guidance 
regarding the types of market-facing activity that would--and would 
not--constitute ``arranging'' or ``negotiating'' a security-based swap 
for purposes of the relevant Title VII requirements.\88\ For the 
reasons discussed below, this proposed guidance would take the position 
that a person may provide ``market color'' in specific circumstances 
without that activity constituting ``arranging'' or ``negotiating'' 
security-based swap transactions for purposes of the ``arranged, 
negotiated, or executed'' test \89\ that is used in connection with de 
minimis counting,\90\ the cross-border application of business conduct 
rules,\91\ regulatory reporting and public dissemination 
requirements,\92\ and major security-based swap participant rules.\93\ 
For purposes of this guidance, the term ``market color'' means 
background information regarding pricing or market conditions 
associated with particular instruments or with markets more generally, 
including information regarding current or historic pricing, volatility 
or market depth, and trends or predictions regarding pricing, 
volatility or market depth, as well as other types of information 
reflecting market conditions and trends.
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    \88\ The Commission does not believe there is a reason to 
revisit its prior guidance regarding the scope of the term 
``execute''; the Commission therefore is not providing any 
additional guidance regarding the interpretation of that term.
    \89\ Certain provisions applying Title VII security-based swap 
requirements in the cross-border context, such as the de minimis 
counting test in Rule 3a71-3(b)(2)(iii), incorporate ``arranged, 
negotiated, or executed'' terminology. Other cross-border provisions 
make use of the definition of ``transaction conducted through a 
foreign branch'' in Rule 3a71-3(a)(3), which incorporates the 
functionally equivalent ``arranged, negotiated, and executed'' 
terminology. This proposed guidance would apply to both uses of that 
terminology, as found in the rules discussed in notes 90 through 93, 
infra, and accompanying text.
    \90\ In connection with de minimis counting, this proposed 
guidance would apply to: (1) Exchange Act Rule 3a71-3(b)(1)(iii)(C), 
which requires the counting of security-based swap dealing 
transactions between non-U.S. counterparties that have been 
``arranged, negotiated, or executed'' in the United States; (2) 
Exchange Act Rule 3a71-3(b)(2), which addresses the counting of 
affiliate transactions described by paragraph (b)(1) (which includes 
the (b)(1)(iii)(C) requirement); (3) Exchange Act Rule 3a71-5, which 
excepts certain cleared anonymous transactions from the individual 
counting requirement of paragraph (b)(1) of Rule 3a71-3 and from the 
affiliate counting requirement of paragraph (b)(2), but is 
unavailable to transactions ``arranged, negotiated, or executed'' by 
U.S. personnel; and (4) the de minimis counting requirement of 
Exchange Act Rule 3a71-3(b)(1)(iii)(A), requiring the counting of 
dealing transactions between dealing transactions involving a 
foreign branch of a registered security-based swap dealer and a non-
U.S. counterparty (or another foreign branch). The regulatory 
interests underlying the Rule 3a71-3(b)(1)(iii)(C) and Rule 3a71-
3(b)(1)(iii)(A) uses of arranged, negotiated and/or executed 
criteria to implement the de minimis counting requirement are 
similar (as are, derivatively, the Rule 3a71-3(b)(2) and Rule 3a71-5 
uses). See note 81, supra.
    \91\ See note 79, supra (addressing Exchange Act Rule 3a71-3(c) 
business conduct exclusion).
    \92\ See note 80, supra (addressing Regulation SBSR Rules 
908(a)(1)(v) and 908(b)(5), regarding the cross-border application 
of regulatory reporting and public dissemination requirements).
    \93\ See note 82, supra (addressing cross-border major security-
based swap participant provisions of Exchange Act Rules 3a67-
10(b)(3)(i) and 3a67-10(d)).
---------------------------------------------------------------------------

    The Commission believes that the earlier guidance, which focused on 
the presence of market-facing activities by U.S. personnel, provides a 
useful starting point for identifying the types of U.S. activity that 
should trigger the various uses of the ``arranged, negotiated, or 
executed'' test. The Commission nonetheless has come to recognize that 
there are significant variations among the types of market-facing 
activity that may occur in connection with security-based swap 
transactions, and that U.S. personnel in some circumstances may engage 
in activity that, although market-facing, reasonably may not be 
characterized as ``arranging'' or ``negotiating'' a security-based swap 
transaction--as those terms are understood generally and in the context 
of the relevant regulatory interests.
    On one hand, U.S. personnel may actively market security-based 
swaps to counterparties on behalf of a firm. Those types of market-
facing activity by U.S. personnel appropriately would trigger the 
various uses of the ``arranged, negotiated, or executed'' test, because 
otherwise those activities could cause a firm to engage in a dealing 
business in the United States without being subject to applicable Title 
VII requirements.
    At the other end of the spectrum, U.S. personnel may engage in 
limited market-facing activity such as providing market-related 
information to counterparties in response to inquiries, or providing 
market data or other information that helps to set the price associated 
with a security-based swap transaction that otherwise is negotiated by 
non-U.S. personnel. When the remaining market-facing activity connected 
with a transaction occurs outside the United States, such limited 
market-facing activity by U.S. personnel standing alone does not 
trigger the concerns and regulatory interests that underpin the various 
uses of the ``arranged, negotiated, or executed'' test in connection 
with the transaction.\94\
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    \94\ Such limited U.S. market-facing activity of that type seems 
unlikely to implicate the regulatory interests underlying the 
various uses of the ``arranged, negotiated, or executed'' test for 
purposes of the security-based swap dealer de minimis counting 
requirement, or for purposes of the regulatory reporting and public 
dissemination requirements of Regulation SBSR, because the activity 
of the U.S. personnel standing alone would not appear comprehensive 
enough to pose a significant risk of allowing an entity to exit the 
Title VII regulatory regime without exiting the U.S. market.
    That type of limited U.S. market-facing activity further seems 
unlikely to implicate the regulatory interests underlying the use of 
the ``arranged, negotiated, or executed'' test for purposes of the 
security-based swap dealer business conduct requirements for the 
same reason, and also because non-U.S. counterparties reasonably may 
not expect Title VII business conduct requirements to apply merely 
as the result of receiving technical information from U.S. 
personnel.
---------------------------------------------------------------------------

    Accordingly, the earlier reliance on the presence of market-facing 
activity may not sufficiently recognize circumstances in which the 
market-facing activity of U.S. personnel is so limited that it would 
not implicate the regulatory interests underlying the relevant Title 
VII requirements.\95\
---------------------------------------------------------------------------

    \95\ When the Commission adopted the ``arranged, negotiated, or 
executed'' counting rule applicable to transactions between two non-
U.S. counterparties, the Commission stated that ``to the extent that 
personnel located in a U.S. branch or office engage in market-facing 
activity normally associated with sales and trading, the location of 
those personnel would be relevant, even if the personnel are not 
formally designated as sales persons or traders.'' See ANE Adopting 
Release, 81 FR at 8622 n.224. Just as the ``arranged, negotiated, or 
executed'' test reasonably may be triggered by U.S. personnel that 
are not formally designated as sales persons or traders when they 
engage in arranging or negotiating activity, the Commission does not 
believe that the test invariably must be triggered by the presence 
of U.S. personnel who are designated as sales persons or traders 
when their activity is too limited to implicate the principles 
underlying the uses of the test.
---------------------------------------------------------------------------

    For those reasons, the Commission is proposing guidance that U.S. 
personnel who provide market color in connection with security-based 
swap transactions--

[[Page 24217]]

in the form of information or data as described above, including 
market-related information regarding the pricing of particular 
instruments or background information regarding general market 
conditions--do not trigger the Title VII requirements that use an 
``arranged, negotiated, or executed'' test, when the following 
circumstances exist:
     No client responsibility--The U.S. personnel have not been 
assigned, and do not otherwise exercise client responsibility in 
connection with the transaction.
     No transaction-linked compensation--The U.S. personnel do 
not receive compensation based on or otherwise linked to the completion 
of transactions on which the ``U.S. personnel'' provide market 
color.\96\
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    \96\ The Commission understands that it is commonplace for firms 
to account for the overall profit or loss of the firm, or of a 
particular division or office, in calculating bonuses. The language 
regarding ``compensation based on or otherwise linked to the 
completion of transactions'' is not intended to extend to such 
profit-sharing arrangements or other compensation practices that 
account for aggregated profits, as such arrangements would not be 
expected to incentivize U.S. personnel in a similar manner or to a 
similar degree as compensation that is directly linked to the 
success of individual transactions.
---------------------------------------------------------------------------

    In those circumstances, U.S. personnel may provide information to 
counterparties, pursuant to the proposed guidance, regarding pricing or 
market conditions associated with particular instruments or with 
markets more generally, including information regarding current or 
historic market pricing, volatility or market depth, as well as general 
trends or predictions regarding those matters and information related 
to risk management. This should help promote the efficient use of such 
U.S. personnel without raising concerns that such activity constitutes 
``arranging'' or ``negotiating'' a security-based swap transaction for 
purposes of the requirements under Title VII that incorporate the 
``arranged, negotiated, or executed'' test--i.e., requirements related 
to de minimis counting, the cross-border application of business 
conduct and regulatory reporting and public dissemination requirements, 
and the cross-border major security-based swap participant rules.\97\
---------------------------------------------------------------------------

    \97\ Nothing in this guidance would restrict the ability of 
firms to risk manage their security-based swap positions on a global 
basis.
    Separately, in circumstances where the proposed guidance allows 
for market-facing activity by U.S. personnel without triggering the 
``arranged, negotiated, or executed'' standard, the federal 
securities laws, including applicable antifraud provisions, still 
may apply to that activity depending on the particular facts and 
circumstances.
---------------------------------------------------------------------------

    Under the guidance, U.S. persons could provide market-based 
information in connection with security-based swap transactions--
including but not limited to information regarding pricing, depth of 
market, and anticipated demand--in support of non-U.S. persons who 
actually arrange, negotiate and execute those transactions on behalf of 
their clients.

B. Solicitation of Comments

    The Commission is soliciting comment regarding all aspects of this 
proposed guidance, including whether other approaches would be 
appropriate--as a supplement to or in lieu of the proposed guidance--to 
address particular types of market-facing activity that may not raise 
the concerns that underpinned the ``arranged, negotiated, or executed'' 
test. Commenters particularly are invited to address the following:
    1. To what extent do non-U.S. persons that engage in security-based 
swap dealing activity with non-U.S. counterparties make use of U.S. 
personnel in a market-facing capacity in connection with that dealing 
activity? What specific types of market-facing activities do such U.S. 
personnel conduct?
    2. Would the proposed guidance provide a workable approach for 
distinguishing between market-facing activity that falls within the 
scope of ``arranging'' and ``negotiating'' security-based swap 
transactions and that which does not? Would a different type of 
Commission action (e.g., exemptive relief or some other approach) be 
more appropriate?
    3. Would the proposed guidance appropriately apply to the use of 
the ``arranged, negotiated, or executed'' test in the context of de 
minimis counting, the cross-border application of regulatory reporting 
and public dissemination, and the cross-border application of business 
conduct requirements? If not, in which circumstances would the proposed 
guidance be more or less appropriate when applied to particular 
requirements?
    4. Would the use of U.S. personnel solely to provide ``market 
color'' to the counterparties of non-U.S. dealers--such as by providing 
information regarding pricing or market conditions, including 
information regarding current or historic pricing, volatility or market 
depth, and trends or predictions regarding those matters--raise 
concerns regarding the uniform application of the Title VII security-
based swap dealer regime and/or the ability of firms to conduct an 
unregistered security-based swap dealing business in the United States? 
Commenters particularly are invited to address any gaps in regulation 
that may result from guidance that excludes from the test transactions 
involving such market-facing activity in the United States from the 
ambit of the various requirements that make use of the ``arranged, 
negotiated, or executed'' test, including, inter alia, issues 
associated with the failure to apply security-based swap dealer 
requirements to those U.S. market-facing activities as a result of 
excluding certain transactions from the de minimis counting 
requirement.
    5. Would the proposed guidance effectively distinguish the types of 
market-facing activity that appropriately should fall within the 
``arranged, negotiated, or executed'' test from other types of market-
facing activity? Alternatively, are different or additional standards 
appropriate to distinguish between those two types of activity? For 
example, should the ``arranged, negotiated, or executed'' test 
encompass activity by U.S. personnel that involves arranging or 
finalizing non-pricing aspects of the transaction, such as underlier, 
notional amounts or tenor, or otherwise play more than a peripheral 
role with regard to the completion of the transaction? In regard to 
these issues, commenters are invited to discuss current practices 
regarding the use of U.S. personnel to provide limited information such 
as ``market color,'' including the nature of the information provided, 
the time of day such information is provided, and the underliers 
typically associated with that type of activity.
    6. Is the proposed distinction between market-facing activity that 
involves transaction-based compensation of U.S. personnel and market-
facing activity that does not involve transaction-based compensation 
workable in light of existing compensation practices associated with 
such activity by U.S. personnel? Are there typical compensation 
practices that would raise interpretive issues regarding the 
application of the ``arranged, negotiated, or executed'' test under the 
guidance? Commenters particularly are requested to discuss firm-
specific or other typical arrangements for compensating U.S. personnel 
of foreign dealing entities in circumstances where the U.S. personnel 
have some involvement with the firm's transactions with non-U.S. 
counterparties. Commenters further are requested to address whether 
firms may restructure their compensation arrangements to rely on this 
type of guidance, and whether the resulting alternative compensation 
practices

[[Page 24218]]

would incentivize U.S. personnel in a similar manner or to a similar 
degree as compensation that is linked directly to the success of 
individual transactions.
    7. What other market practices, if any, should the Commission 
address in any guidance it provides regarding the scope of 
``arranging'' and ``negotiating'' for purposes of the test?
    8. If the Commission separately were to adopt rules providing for 
an exception from the application of the ``arranged, negotiated, or 
executed'' test to the security-based swap dealer de minimis counting 
requirement, pursuant to one of the alternatives being proposed (see 
part III, infra), in what circumstances would non-U.S. persons have an 
incentive to rely on the proposed guidance? For example--and depending 
on the contours of this guidance--is it possible that such guidance 
primarily would be used by a non-U.S. person that is not located in a 
``listed jurisdiction''? \98\ Is it possible that such guidance 
primarily would be used by a non-U.S. person that does not have a U.S. 
broker-dealer affiliate, or that would prefer to use non-affiliated 
personnel to engage in such market-facing activities?
---------------------------------------------------------------------------

    \98\ See part III.B.5, infra (addressing ``listed jurisdiction'' 
condition to availability of proposed conditional exception from use 
of ``arranged, negotiated, or executed'' test in connection with 
security-based swap dealer de minimis counting provisions).
---------------------------------------------------------------------------

    9. Would the proposed guidance obviate the need for the more 
general exception to the ``arranged, negotiated, or executed'' test 
that the Commission is proposing (related to de minimis counting of 
transactions involving two non-U.S. counterparties)?
    10. Are the limits to the proposed guidance sufficient to prevent 
non-U.S. counterparties that interact with such U.S. personnel from 
incorrectly presuming that the entire Title VII regulatory framework 
would apply to the transaction? If not, what additional limits could be 
appropriate to control that possibility?
    11. Could the availability of the proposed market color guidance 
potentially affect the security-based swap booking practices of U.S. or 
non-U.S. dealing entities? For example, if this type of guidance were 
available, would a non-U.S. person that currently uses U.S. personnel 
to engage in dealing transactions with U.S. and non-U.S. counterparties 
have the incentive to prospectively book transactions with U.S. 
counterparties into a registered affiliate, so the non-U.S. person may 
avoid registering as a security-based swap dealer while still being 
able to use U.S. personnel to facilitate its dealing transactions with 
non-U.S. counterparties? If so, would bifurcating dealing books in this 
way limit the liquidity available to U.S. market participants?

III. Proposed Exception to Rule 3a71-3

A. Purpose

    The Commission continues to believe that the use of the ``arranged, 
negotiated, or executed'' test appropriately applies the security-based 
swap dealer de minimis counting requirement in connection with 
transactions involving two non-U.S. counterparties. At the same time, 
based on the concerns that have been expressed regarding that use of 
the test, the Commission recognizes that in some circumstances this use 
of the test, among other possible outcomes, may cause financial groups 
to relocate U.S. personnel or relocate the activities performed by U.S. 
personnel, to avoid security-based swap dealer registration, and that 
such results have the potential to increase fragmentation and harm U.S. 
market participants and the U.S. economy.\99\
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    \99\ See part I.A.4, supra. The potential ramifications of this 
use of the ``arranged, negotiated, or executed'' test are linked in 
part to whether market participants in practice would relocate 
personnel or functions due to this use of the test, as well as to 
the actual effects of such relocations. Alternative practices by 
market participants--such as compliance with the counting 
requirement with no relocation of personnel or functions--may 
mitigate those ramifications and/or produce other ramifications. 
Similarly, it is possible that relocation of personnel or functions 
may not lead to the fragmentation and other consequences that have 
been described. The Commission is soliciting comment regarding the 
uses of U.S. personnel in connection with the transactions at issue, 
and the potential ramifications of not providing this type of 
exception. See parts III.D.1, III.D.2, infra.
---------------------------------------------------------------------------

    To address that concern, the Commission is soliciting public 
comment on two alternative proposals for a conditional exception from 
the use of the ``arranged, negotiated, or executed'' test in connection 
with that part of the de minimis counting requirement, set forth in 
Exchange Act Rule 3a71-3(b)(1)(iii)(C).\100\ These alternative 
proposals are intended to protect the policy goals associated with 
security-based swap dealer regulation by focusing relevant requirements 
on the arranging, negotiating and executing activity occurring in the 
United States, while avoiding potentially problematic consequences--
such as relocation of personnel outside the United States that may lead 
to fragmentation that reduces market access available to persons within 
the United States--that otherwise may be associated with that aspect of 
the counting requirement.\101\
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    \100\ The proposed conditional exception to Rule 3a71-
3(b)(1)(iii)(C) would have ramifications to the affiliate counting 
provisions of paragraph (b)(2) of Rule 3a71-3. Paragraph (b)(2) 
requires persons engaged in security-based swap transactions 
described in paragraph (b)(1) of the rule--which includes the 
transactions at issue--also to count certain dealing transactions of 
affiliates under common control, including transactions described in 
paragraph (b)(1)(iii) (unless, pursuant to Rule 3a71-4, the 
affiliate itself is a registered security-based swap dealer or a 
person in the process of registering as a security-based swap 
dealer). As a result, transactions subject to the proposed Rule 
3a71-3(b)(1)(iii)(C) exception further would not be subject to the 
paragraph (b)(2) affiliate transaction counting requirement.
    Also, Exchange Act Rule 3a71-5 excepts certain cleared anonymous 
transactions from the individual counting requirement of paragraph 
(b)(1) of Rule 3a71-3 (which includes the (b)(1)(iii)(C) 
requirement) and from the affiliate counting requirement of 
paragraph (b)(2), but the Rule 3a71-5 exception is unavailable to 
transactions arranged, negotiated, or executed by U.S. personnel. 
Because the proposed exception to (b)(1)(iii)(C) would prevent the 
transactions at issue from triggering either the (b)(1) or (b)(2) 
counting requirements, the Rule 3a71-5 exception would not be 
relevant to those transactions.
    \101\ In practice, the proposed exception would affect the set 
of dealing transactions that a non-U.S. person must include within 
the 12-month lookback for determining whether it can avail itself of 
the de minimis exception from the ``security-based swap dealer'' 
definition. Exchange Act Rule 3a71-2(a)(1) determines the 
availability of the de minimis exception based on whether a person's 
security-based swap dealing activity over the prior 12 months is 
below the applicable notional threshold, and the cross-border 
counting provisions of Exchange Act Rule 3a71-2(b) (including the 
``arranged, negotiated, or executed'' provision of Rule 3a71-
3(b)(1)(iii)(C)) partially determine which positions must be counted 
pursuant to Rule 3a71-2(a)(1).
    The structure of the de minimis counting provisions also would 
make this proposed exception available to non-U.S. persons that are 
registered as security-based swap dealers. In particular, Exchange 
Act Rule 3a71-2(c) (in conjunction with paragraph (a) of that rule) 
provides that a security-based swap dealer may apply to withdraw its 
registration if it has been registered for at least 12 months and 
its dealing activity over the preceding 12 months is below the 
applicable de minimis thresholds. Because the proposed exception 
from the ``arranged, negotiated, or executed'' counting requirement 
of Rule 3a71-3(b)(1)(iii)(C) would cause the transactions at issues 
not to be counted against the applicable thresholds, a registered 
security-based swap dealer could rely on the exception to make use 
of the withdrawal provision. The Commission is soliciting comment 
regarding whether the proposed exception should be modified to make 
it unavailable to registered security-based swap dealers. See part 
III.D.10, infra.
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    The first alternative proposal (Alternative 1) conditionally would 
permit a non-U.S. person not to count the security-based swap dealing 
transactions at issue against the de minimis thresholds so long as all 
arranging, negotiating or executing activity within the United States 
is performed by personnel associated with an affiliated entity that is 
registered with the Commission as a security-based swap dealer. The 
second alternative proposal (Alternative 2) would be broader than the 
first alternative by also allowing for activity

[[Page 24219]]

in the United States to be performed by personnel associated with an 
affiliate that is registered with the Commission as a broker (or, as 
with the first alternative, that is registered as a security-based swap 
dealer). As discussed in further detail below, under either alternative 
the non-U.S. person and the affiliated registered entity would have to 
comply with certain conditions related to business conduct, trade 
acknowledgments, portfolio reconciliation, disclosure, records, and 
financial responsibility.
    The proposed exception may be particularly relevant, for example, 
for financial groups that use one or more non-U.S. dealing entities to 
transact (i.e., book transactions directly) with Canadian or Latin 
American counterparties, but that manage the trading or sales 
relationships with those counterparties out of an affiliated entity in 
the United States--whether for customer convenience, for more direct 
access to the market in which the underliers are traded, or for 
operational or other reasons. Under the proposed exception, 
transactions that are booked by the foreign dealing entity but 
arranged, negotiated or executed by personnel associated with an 
affiliated registered entity in the U.S. generally would not be counted 
toward the foreign entity's de minimis threshold, and the entity 
accordingly would not be required to register as a security-based swap 
dealer by virtue of those transactions.\102\ Antifraud provisions of 
the federal securities laws and certain relevant Title VII requirements 
would continue to apply to the transaction--e.g., transaction reporting 
and the prohibitions in Section 5(e) of the Securities Act of 1933 and 
Section 6(l) of the Exchange Act with respect to transactions with 
counterparties that are not eligible contract participants (``ECPs''). 
The Commission preliminarily believes that this approach would 
appropriately balance the application of Title VII requirements to any 
risks presented by the activity while reducing the likelihood of market 
fragmentation that otherwise might arise if the foreign dealing entity 
were subject to requirements that are not tailored to the associated 
risks.
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    \102\ Other dealing activity of that foreign entity, such 
entering into security-based swap transactions with U.S. person 
counterparties, may cause the entity to exceed the de minimis 
threshold and thus have to register as a security-based swap dealer. 
The foreign entity also would be subject to provisions requiring it 
to count certain dealing transactions of its affiliates. See notes 
13 and 100, supra (addressing other prongs of the cross-border de 
minimis counting test).
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    As discussed below, although the proposed exception would subject 
arranging, negotiating and executing activity in the United States to 
certain Title VII requirements, the exception would not fully apply 
certain other requirements, such as financial responsibility 
requirements, in connection with security-based swaps resulting from 
that U.S. activity. On balance, the Commission preliminarily believes 
that the conditions that have been proposed for the exception would 
mitigate any potential negative consequences that otherwise might arise 
from tailoring the security-based swap dealer requirements that apply 
to those activities.
    In making this proposal, the Commission is mindful that U.S.-based 
dealing entities may use this type of exception to structure their 
booking practices to manage the application of Title VII to their 
security-based swap dealing business--e.g., by booking dealing 
transactions with non-U.S. counterparties into their non-U.S. 
affiliates, to reduce the application of Title VII security-based swap 
dealer requirements to those transactions. The Commission is soliciting 
comment regarding the potential effect of the proposed exception on 
booking practices, and further address those potential consequences as 
part of the economic analysis.\103\
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    \103\ See parts III.D.9 (solicitation of comment), VII.A.7 
(estimate of persons that may rely on proposed exception) and 
VII.B.1 (addressing costs and benefits of the proposed amendment), 
infra.
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B. Alternative 1--First Alternative Proposed Conditional Exception

    The Commission is proposing to amend Exchange Act Rule 3a71-3 to 
incorporate a conditional exception from the ``arranged, negotiated, or 
executed'' counting standard under conditions that would apply a 
focused alternative method of regulation to the transactions at issue. 
The proposal recognizes that certain arranging, negotiating or 
executing activity involving U.S. personnel warrants Title VII 
oversight, but also recognizes that U.S. activity in connection with 
transactions between two non-U.S. persons may not implicate the same 
types of risks to U.S. persons and to U.S. markets as other types of 
dealing activity in the United States. The proposed exception hence is 
intended to more closely align the application of Title VII oversight 
to the U.S. market concerns associated with such transactions between 
non-U.S. persons.
    Proposed new paragraph (d) of Exchange Act Rule 3a71-3 would 
incorporate this conditional exception.\104\ Under Alternative 1, this 
paragraph (d) would except a non-U.S. person from having to count 
transactions arranged, negotiated or executed in the United States for 
purposes of the security-based swap dealer definition, subject to the 
following conditions:
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    \104\ Apart from adding a conditional exception as new paragraph 
(d) of Rule 3a71-3, proposed Alternative 1 (as well as proposed 
Alternative 2) would amend the introductory language of paragraph 
(b)(1)(iii)(C) of Rule 3a71-3, to specify that the ``arranged, 
negotiated, or executed'' counting requirement is subject to the 
conditional exception.
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     All such arranging, negotiating and executing activity in 
the United States would be conducted by personnel located in a U.S. 
branch or office in their capacity as associated persons of a majority-
owned affiliate that is registered with the Commission as a security-
based swap dealer;
     That registered security-based swap dealer would comply 
with specific requirements applicable to security-based swap dealers as 
if the entity were a counterparty to the non-U.S. person's 
counterparties;
     The Commission could access relevant books, records and 
testimony of the non-U.S. person, and the registered security-based 
swap dealer would be required to maintain records related to the 
transaction;
     The non-U.S. person would consent to service of process 
for any civil action brought by or proceeding before the Commission;
     The registered security-based swap dealer would provide 
certain disclosures to the counterparties of the non-U.S. person; and
     The non-U.S. person would be subject to the margin and 
capital requirements of a ``listed jurisdiction.''
    For the reasons set forth below, the Commission preliminarily 
believes that an exception that incorporates those elements would apply 
security-based swap dealer requirements to arranging, negotiating or 
executing activity in the United States, allow for Commission access to 
related books and records, and eliminate incentives to alter 
transaction booking practices to avoid security-based swap dealer 
registration, in a manner that appropriately addresses the scope of the 
regulatory concerns raised by this type of U.S. activity.\105\
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    \105\ The conditional exception would address only the Rule 
3a71-3(b)(1)(iii)(C) requirement that non-U.S. persons count 
transactions that involve dealing activity in the United States. 
Rule 3a71-3 would continue to require non-U.S. persons to count all 
of their security-based swap dealing transactions with U.S. 
counterparties, and all of their security-based swap dealing 
transactions that are guaranteed by their U.S. affiliates.

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[[Page 24220]]

    The Commission preliminarily believes that this type of arranging, 
negotiating or executing conduct associated with security-based swap 
transactions also would generally constitute ``broker'' activity under 
the Exchange Act. Entities engaged in such conduct accordingly would be 
required to register with the Commission as brokers unless they can 
avail themselves of an exception from broker status, such as the 
exception for bank brokerage activity, or an exemption from broker 
registration.\106\
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    \106\ See generally note 21, supra (addressing application of 
``broker'' and ``security'' definitions in the security-based swap 
context).
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1. U.S. Activity Conducted by a Majority-Owned Registered Security-
Based Swap Dealer Affiliate
    Under Alternative 1, the arranging, negotiating and executing 
activity by U.S. personnel that otherwise would need to be counted but 
for the exception must be conducted by such personnel in their capacity 
as persons associated with an entity that is: (a) Registered as a 
security-based swap dealer, and (b) a majority-owned affiliate \107\ of 
the non-U.S. person relying on the exception.\108\
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    \107\ Proposed paragraph (a)(10) would define the term 
``majority-owned affiliate'' to encompass a relationship whereby one 
entity directly or indirectly owns a majority interest in another, 
or where a third party directly or indirectly owns a majority 
interest in both, where ``majority interest'' reflects voting power, 
the right to sell, or the right to receive capital upon dissolution 
or the contribution of capital.
    \108\ See Alternative 1--proposed paragraph (d)(1)(i) of Rule 
3a71-3. Exchange Act Section 3(a)(70) defines the term ``person 
associated with a security-based swap dealer or major security-based 
swap participant'' to encompass, inter alia, partners, officers, 
directors, employees and persons controlling, controlled by, or 
under common control with a security-based swap dealer or major 
security-based swap participant.
    Exchange Act Rule 3a71-2(e) provides for the voluntary 
registration of a person that chooses to be a security-based swap 
dealer, regardless of whether that person engages in dealing 
activity that exceeds the de minimis thresholds.
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    By requiring that the U.S. arranging, negotiating or executing 
activity be conducted by U.S. personnel in their capacity as associated 
persons of a registered security-based swap dealer, the proposed 
condition would help ensure that the U.S. activity would be subject to 
key security-based swap dealer requirements under Title VII, including 
requirements regarding supervision, books and records, trade 
acknowledgments and verifications, and business conduct, among other 
things.\109\
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    \109\ The relevant transactions also would remain subject to 
regulatory reporting and public dissemination requirements under 
Title VII. See note 52, supra. But see part III.D.10, infra 
(soliciting comment regarding whether to make a similar exception 
available in connection with the application of the ``arranged, 
negotiated, or executed'' test in connection with the regulatory 
reporting and public dissemination requirements of Regulation SBSR).
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    The registered security-based swap dealer must be a majority-owned 
affiliate of the non-U.S. person relying on the exception. As discussed 
above, concerns have been expressed that the existing counting standard 
could lead financial groups to relocate their U.S.-based personnel to 
avoid triggering security-based swap dealer registration. To the extent 
that such groups make use of this exception in lieu of relocating U.S.-
based personnel, the Commission would expect those groups to use 
affiliated entities to satisfy the conditions of the exception. 
Moreover, requiring that the arranging, negotiating or executing 
activity be performed by U.S. personnel associated with an affiliated 
registered security-based swap dealer would help guard against the risk 
that a financial group may seek to attenuate its responsibility for any 
shortcomings in the registered security-based swap dealer's compliance 
with the requirements applicable to registered security-based swap 
dealers.\110\ The proposal makes use of a majority-ownership standard 
to achieve this goal--rather than other measures of affiliation such as 
a common control standard or alternative ownership thresholds--to help 
ensure that the financial group has a significant interest in the 
registered security-based swap dealer, including its compliance with 
the requirements applicable to security-based swap dealers (in addition 
to the non-U.S. person's interest in the registered security-based swap 
dealer complying with the conditions of the exception), to help promote 
appropriate compliance and oversight practices.\111\
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    \110\ The registered security-based swap dealer's non-compliance 
with the conditions of the exception would make the exception 
unavailable to the non-U.S. person.
    \111\ The Commission has used a majority-ownership standard as 
part of other rules implementing Title VII, including in a rule 
providing that inter-affiliate security-based swaps need not be 
considered in determining whether a person is a security-based swap 
dealer. See Exchange Act Rule 3a71-1(d).
---------------------------------------------------------------------------

    Taken as a whole, those elements differentiate the proposal from 
the approach commenters previously suggested that would have excused 
the counting of such transactions when the relevant activity in the 
United States is performed by a registered broker-dealer or by a U.S. 
bank. When the Commission considered but rejected that type of approach 
in adopting the ``arranged, negotiated, or executed'' counting 
requirement, the Commission noted that the broker-dealer framework does 
not apply to banks engaged in certain activities, which may include a 
significant proportion of security-based swap dealing activity, and 
stated that such an approach would effectively supplant Title VII 
security-based swap dealer regulation for a majority of dealing 
activity carried out in the United States with a ``cobbled together'' 
grouping of other requirements.\112\ Alternative 1, in contrast, would 
apply Title VII security-based swap dealer regulation to arranging, 
negotiating or executing activity in the United States, regardless of 
whether that activity is conducted by banks or non-banks, consistent 
with the uniform security-based swap dealer framework anticipated by 
Title VII.
---------------------------------------------------------------------------

    \112\ See ANE Adopting Release, 81 FR at 8619; see also part 
I.A.3, supra.
---------------------------------------------------------------------------

2. Compliance With Specific Security-Based Swap Dealer Requirements
a. Conditions Regarding Application of Specific Requirements
    The proposal would incorporate provisions related to how Title VII 
requirements would apply to the registered security-based swap dealer's 
activities conducted on behalf of its non-U.S. affiliate. As noted, 
Alternative 1 would be conditioned on any U.S. personnel who arrange, 
negotiate or execute security-based swap transactions in the United 
States acting in their capacity as an associated person of a registered 
security-based swap dealer. Security-based swap dealers in general must 
comply with a variety of obligations, including those related to: 
Financial responsibility; books, records and reports; trade 
acknowledgment and verification; supervision and chief compliance 
officers; and business conduct.\113\ Security-based swap dealers

[[Page 24221]]

also are subject to regulatory reporting and public dissemination 
requirements.\114\
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    \113\ See generally Exchange Act Section 15F. The Commission has 
adopted final rules to implement certain security-based swap dealer 
requirements under Section 15F. See Business Conduct Adopting 
Release, 81 FR 29960 (final rules addressing business conduct, 
supervision and chief compliance officer requirements); Exchange Act 
Release No. 78011 (Jun. 8, 2016), 81 FR 39808 (Jun. 17, 2016) (final 
rules addressing trade acknowledgment and verification requirements) 
(``Trade Acknowledgment Adopting Release'').
    The Commission also has proposed rules to implement security-
based swap dealer requirements regarding:
    (1) Capital, margin and segregation (see Exchange Act Release 
No. 68071, 77 FR 70214 (Nov. 23, 2012) (``Capital, Margin and 
Segregation Proposing Release''); Exchange Act Release No. 71958 
(Apr. 17, 2014), 79 FR 25194, 25254 (May 2, 2014));
    (2) Recordkeeping and reporting (see Exchange Act Release No. 
71958 (Apr. 17, 2014), 79 FR 25194 (May 2, 2014) (``Recordkeeping 
and Reporting Proposing Release''));
    (3) Risk mitigation, including requirements relating to 
portfolio reconciliation, portfolio compression and trading 
relationship documentation (see Exchange Act Release No. 84861 (Dec. 
19, 2018), 84 FR 4614 (Feb. 15, 2019) (``Risk Mitigation Proposing 
Release'')); and
    (4) The cross-border application of various Title VII 
requirements, including certain security-based swap dealer 
requirements (see Cross-Border Proposing Release, 78 FR 30968).
    \114\ See generally Regulation SBSR, 17 CFR 242.900 et seq.
---------------------------------------------------------------------------

    Absent additional conditions, however, the transactions that would 
be subject to the proposed exception would not necessarily be subject 
to certain of those security-based swap dealer requirements. In 
particular, several provisions of the Exchange Act and the rules 
thereunder impose obligations upon security-based swap dealers with 
regard to their activities that involve a ``counterparty.'' \115\ For 
transactions subject to the proposed exception, however, the registered 
security-based swap dealer that engages in arranging, negotiating and 
executing activity in the United States would not be a contractual 
party to the security-based swaps resulting from that arranging, 
negotiating or executing activity, and therefore would not be a 
``counterparty'' to the transaction.
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    \115\ See, e.g., Exchange Act Rule 15Fh-3(a) (eligible 
counterparty verification); Rule 15Fh-3(b) (disclosure of risks, 
characteristics, incentives and conflicts; Rule 15Fh-3(c) (daily 
mark disclosure); Rule 15Fh-3(d) (clearing rights disclosure); Rule 
15Fh-3(e) (``know your counterparty'' requirement); Rule 15Fh-3(f) 
(suitability of recommendations); Rule 15Fh-3(g) (fair and balanced 
communications); Exchange Act Rule 15Fi-2(a) (trade acknowledgment 
and verification).
    Certain of the Exchange Act provisions that underlie those rules 
also explicitly refer to activities involving a ``counterparty.'' 
See Exchange Act Section 15F(h)(3)(A) (eligible counterparty 
verification); Sections 15F(h)(3)(B)(i), (ii) (disclosure of risks, 
characteristics, incentives and conflicts); Section 
15F(h)(3)(B)(iii) (daily mark disclosure).
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    The Commission accordingly is proposing to condition the exception 
on the registered security-based swap dealer complying with the 
following requirements ``as if'' the counterparties to the non-U.S. 
person relying on the exception also were counterparties to the 
registered security-based swap dealer: \116\
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    \116\ See Alternative 1--proposed paragraph (d)(1)(ii)(A) of 
Rule 3a71-3 (providing for ``as if'' compliance with certain 
specified requirements).
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     Disclosure of risks, characteristics, material incentives 
and conflicts of interest. The registered security-based swap dealer 
must disclose information regarding the material risks and 
characteristics of the security-based swap, and regarding the material 
incentives or conflicts of interest of the security-based swap dealer, 
including the material incentives and conflicts of interest associated 
with the non-U.S. person relying on the exception.\117\
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    \117\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(1) of 
Rule 3a71-3 (citing the requirements for the disclosure of risks, 
characteristics, incentives and conflicts in Exchange Act Sections 
15F(h)(3)(B)(i), (ii) and Rule 15Fh-3(b) thereunder). The underlying 
Rule 15Fh-3(b) requirement states that disclosure is required only 
so long as the identity of the counterparty is known to the 
security-based swap dealer ``at a reasonably sufficient time prior 
to execution of the transaction'' to permit compliance.
    The proposed condition specifies that the disclosure should 
address not only the material incentives and the conflicts of 
interest of the registered security-based swap dealer engaged in the 
arranging, negotiating or executing activity in the United States, 
but also those of the affiliated non-U.S. person relying on the 
exception, which is intended to allow the counterparty to the 
transaction to be appropriately informed regarding incentives and 
conflicts of interest relevant to the transaction.
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     Suitability of recommendations. The registered security-
based swap dealer must comply with requirements regarding the 
suitability of any recommendations that its associated persons 
make.\118\
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    \118\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(2) of 
Rule 3a71-3 (citing the suitability requirements set forth in Rule 
15Fh-3(f)).
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     Fair and balanced communications. The registered security-
based swap dealer must comply with fair and balanced communication 
requirements.\119\
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    \119\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(3) of 
Rule 3a71-3 (citing the fair and balanced communications requirement 
set forth in Exchange Act Section 15F(h)(3)(C) and Rule 15Fh-3(g) 
thereunder).
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     Trade acknowledgment and verification. The registered 
security-based swap dealer must comply with trade acknowledgment and 
verification requirements.\120\
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    \120\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(4) of 
Rule 3a71-3 (citing the trade acknowledgment and verification 
requirement set forth in Exchange Act Rules 15Fi-1 and 15Fi-2).
---------------------------------------------------------------------------

     Portfolio reconciliation requirements. The registered 
security-based swap dealer must comply with the portfolio 
reconciliation requirements applicable to security-based swap dealers 
for the security-based swap resulting from the transaction as if the 
security-based swap were being included in the security-based swap 
dealer's portfolio, but only the first time that the security-based 
swap would be reconciled by the security-based swap dealer.\121\
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    \121\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(5) of 
Rule 3a71-3 (citing the portfolio reconciliation requirement 
proposed to be set forth in Exchange Act Rule 15Fi-3). In practice, 
this condition would require the security-based swap dealer to 
establish, maintain, and follow written policies and procedures 
reasonably designed to ensure that it engages in the initial 
portfolio reconciliation for transactions for which it arranges, 
negotiates, or executes security-based swap transactions for its 
foreign affiliates. See Risk Mitigation Proposing Release (proposing 
Exchange Act Rule 15Fi-3).
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    The Commission preliminarily believes that requiring the registered 
security-based swap dealer engaged in arranging, negotiating or 
executing activity in the United States to comply with the standards of 
conduct required by the above requirements in connection with the 
transactions at issue generally would not impose significant additional 
information-gathering or documentation burdens on that registered 
security-based swap dealer. At the same time, the Commission recognizes 
that certain of those requirements, particularly the disclosure and 
suitability requirements, in some cases may require the registered 
security-based swap dealer to undertake potentially significant 
additional efforts related to information-gathering and documentation. 
In the Commission's view, however, the customer protections provided by 
imposing those requirements would justify the associated burdens.
    For example, disclosure of risks, characteristics, material 
incentives, and conflicts of interest will permit a counterparty to 
more effectively assess whether and under which terms to enter a 
transaction. Although the compliance burdens associated with that 
disclosure obligation may be significant, those burdens should be 
mitigated by the underlying provision stating that the requirement to 
disclose risks, characteristics, material incentives and conflicts of 
interest will apply only when the registered security-based swap dealer 
knows the identity of the counterparty at a reasonably sufficient time 
prior to execution of the transaction.\122\
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    \122\ See Exchange Act Rule 15Fh-3(b).
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    The burden of complying with the suitability requirement, including 
obtaining the required counterparty information and making a 
suitability assessment using that information, similarly may be 
significant in some cases, but the Commission preliminarily believes 
that those burdens are justified by the importance of the counterparty 
protections provided by the suitability requirement.\123\ The 
Commission further

[[Page 24222]]

notes that the suitability requirement would apply only when the 
registered security-based swap dealer makes a recommendation to the 
counterparty, and that the associated burdens may be lessened by the 
institutional suitability provisions of the requirement.\124\ In this 
regard, moreover, we understand that in some cases, U.S. personnel 
currently manage trading or sales relationships with counterparties, 
and the registered security-based swap dealer accordingly may already 
possess the information needed to comply with obligations such as 
disclosure or suitability.\125\
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    \123\ If the registered security-based swap dealer makes a 
recommendation in connection with the transaction--apart from a 
recommendation to a security-based swap dealer, swap dealer, major 
security-based swap participant, or major swap participant--the 
suitability rule would require the entity both to undertake 
reasonable diligence to understand the potential risks and rewards 
associated with a recommended security-based swap or trading 
strategy involving a security-based swap (see Rule 15Fh-3(f)(1)(i)), 
and to have a reasonable basis to believe that the recommended 
security-based swap or trading strategy involving a security-based 
swap is suitable for the counterparty (see Rule 15Fh-3(f)(1)(ii)).
    \124\ In the case of recommendations to certain institutional 
counterparties, the security-based swap dealer may satisfy the 
counterparty-specific suitability requirement if it receives certain 
written representations and provides certain disclosures. See Rules 
15Fh-3(f)(2) and (3).
    \125\ The Commission is soliciting comment regarding the 
practicability of requiring compliance with the suitability 
condition in the circumstances at issue. See part III.D.5, infra.
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    The Commission is proposing to condition the exception on the 
registered security-based swap dealer complying with the trade 
acknowledgement and verification requirements to help assure that there 
are definitive written records of the terms of the resulting 
transactions and to help control legal and operational risks for the 
counterparties.\126\
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    \126\ See generally Trade Acknowledgment Adopting Release, 81 FR 
at 39809.
    This proposed condition has parallels to Exchange Act Rule 15a-
6(a)(3), which provides a conditional exemption from broker-dealer 
regulation for foreign broker-dealers in connection with certain 
activities that are intermediated (or ``chaperoned'') by registered 
broker-dealers. Under Rule 15a-6(a)(3)(iii)(A)(2), the registered 
broker-dealer must issue all required confirmations and statements. 
In the present context the Commission would expect the registered 
security-based swap dealer to use the same general techniques, to 
obtain requisite information to satisfy the trade acknowledgment and 
verification condition, as registered broker-dealers use to obtain 
the information needed to satisfy the Rule 15a-6 confirmation 
condition. Given that the registered-security-based swap dealer 
would be affiliated with the non-U.S. person relying on the 
exception, the use of common back office platforms may help 
facilitate transfer of that information.
    As further discussed in Section IV, the Commission is mindful 
that foreign blocking laws, privacy laws, secrecy laws and other 
foreign legal barriers may limit or prohibit firms from providing 
books and records directly to the Commission, Similarly, such laws 
may impede the transfer of relevant records among affiliates for 
purposes of complying with the exception. The Commission 
preliminarily believes that the exception should not be available if 
such impediments to transferring information precluded compliance 
with the trade acknowledgement and verification condition, given 
those requirements' importance in providing for definitive records 
and controlling risks.
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    The proposal to condition the exception on the registered entity 
complying with the portfolio reconciliation requirements as if it were 
the counterparty to the transaction, but only for the initial 
reconciliation, should help advance two goals: Helping to ensure the 
accuracy of the data reported to security-based swap data repositories 
(``SDRs''), and helping to facilitate the ability of registered SDRs to 
comply with requirements that they verify the information they 
receive.\127\
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    \127\ In proposing the portfolio reconciliation requirements, 
the Commission explained that the requirements have been designed 
not only to help ensure that the counterparties to a transaction are 
and remain in agreement with respect to all material terms, but also 
to help ensure that the information reported to SDRs is complete and 
accurate. See Risk Mitigation Proposing Release, 84 FR at 4634. This 
objective is applicable to the transactions at issue because 
transactions that are arranged, negotiated, or executed by U.S. 
personnel of a registered security-based swap dealer are subject to 
Regulation SBSR based on that activity. See Regulation SBSR Rule 
908(a)(1)(v).
    The portfolio reconciliation requirement further may assist SDRs 
in satisfying their obligations under Section 13(n)(5)(B) of the 
Exchange Act and rule 13n-4(b)(3) thereunder to verify the terms of 
each security-based swap with both counterparties. See Risk 
Mitigation Proposing Release, 84 FR at 4633-4644.
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    The Commission believes that the condition would promote those 
goals while imposing only minimal additional burdens on the registered 
entity, based in part on the understanding that the registered entity 
typically would have access to the necessary information because the 
registered entity is likely to report the transaction to the SDR on 
behalf of its non-U.S. affiliate (due to the registered entity being 
the only U.S. person involved in the transaction). Moreover, for these 
transactions the underlying proposed portfolio reconciliation rule 
focuses on there being reasonable policies and procedures in 
place,\128\ meaning that the registered entity would not fall out of 
compliance with the condition merely because it has not been provided 
necessary counterparty information.
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    \128\ In the Risk Mitigation Proposing Release, the Commission 
proposed that, with respect to transactions with persons who are not 
SBS Entities, security-based swap dealers would be required to 
establish, maintain, and follow written policies and procedures 
reasonably designed to ensure that it engages in portfolio 
reconciliation for those security-based swap transactions. As such, 
conditioning the exception on security-based swap dealers complying 
with the initial portfolio reconciliation requirements as if the 
security-based swap dealer were the counterparty to the transaction, 
will require that its required policies and procedures regarding 
reconciliation include transactions for which the security-based 
swap dealer arranges, negotiates or executes a security-based swap 
transaction on behalf of another person.
     By contrast, the proposed rule expressly requires portfolio 
reconciliation to occur with respect to security-based swap 
transactions between two SBS Entities. See Risk Mitigation Proposing 
Release, 84 FR 4618-20.
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    In addition, the Commission is conditioning the exception on the 
registered security-based swap dealer complying with fair and balanced 
communication requirements to promote investor protection, which 
prohibit registered entities from overstating the expected benefits or 
understating the expected risks of potential transactions in their 
communications with counterparties.\129\
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    \129\ See Business Conduct Adopting Release, 81 FR at 30001-02 
(``we believe the requirement promotes investor protection by 
prohibiting SBS Entities from overstating the benefits or 
understating the risks to inappropriately influence counterparties' 
investment decisions'').
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    Conversely, this proposed compliance condition would not extend to 
certain other ``counterparty''-related requirements applicable to 
security-based swap dealers. In part, the proposed exception would not 
be conditioned on compliance with ECP verification requirements \130\ 
and ``know your counterparty'' requirements \131\ because the 
Commission preliminarily believes that in some circumstances the 
registered security-based swap dealer would have limited interaction 
with the counterparty to the transactions at issue, making it difficult 
to obtain the information needed to satisfy those requirements. For 
example, compliance with the ``know your counterparty'' requirement 
would be expected to necessitate the creation of documentation that may 
be infeasible for the registered security-based swap dealer.\132\ 
Compliance with the ECP verification requirement would require the 
registered security-based swap dealer to verify that a counterparty 
meets the eligibility standards for an ECP before entering into a 
security-based swap with that counterparty--which could be problematic 
in this context given the diverse set of circumstances in which the 
registered security-based swap dealer may arrange, negotiate or execute 
transactions subject to the exception. To be clear, however, although 
the Commission is not proposing to condition the exception on 
compliance with security-based swap dealer ECP verification 
requirements, existing limitations on entering into

[[Page 24223]]

security-based swaps with non-ECPs would remain in effect.\133\
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    \130\ See Alternative 1--proposed paragraph (d)(1)(ii)(C)(1) of 
Rule 3a71-3 (citing the eligible contract participant verification 
requirement set forth in Exchange Act Section 15F(h)(3)(A) and Rule 
15Fh-3(a)(1) thereunder); see also Business Conduct Adopting 
Release, 81 FR at 29978-79.
    \131\ See Alternative 1--proposed paragraph (d)(1)(ii)(C)(4) of 
Rule 3a71-3 (citing the ``know your counterparty'' requirement is 
set forth in Rule 15Fh-3(e)); see also Business Conduct Adopting 
Release, 81 FR at 29993-94.
    \132\ The scope of the ``know your counterparty'' requirement is 
in contrast the suitability requirements addressed above, which 
would apply only when the registered security-based swap dealer 
makes a recommendation.
    \133\ See Exchange Act Section 6(l) (requiring security-based 
swaps with non-ECPs to be effected on a national securities 
exchange); Securities Act Section 5(e) (requiring registration of 
the offer and sale of security-based swaps to non-ECPs). The 
registered security-based swap dealer might use information obtained 
from its non-U.S. affiliate to verify that a counterparty to the 
security-based swap is in fact an ECP.
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    In addition, the proposed exception would not be conditioned on 
compliance with clearing rights disclosure requirements,\134\ because 
the transactions at issue would not be expected to be subject to the 
underlying clearing rights.\135\ Finally, the proposed exception would 
not be conditioned on compliance with daily mark disclosure 
requirements \136\ and with certain risk mitigation rules \137\ because 
those requirements are predicated on there being an ongoing 
relationship between the security-based swap dealer and the 
counterparty that may not be present in connection with the 
transactions at issue, and further would be linked to risk management 
functions that are likely to be associated with the entity in which the 
resulting security-based swap position is booked.
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    \134\ See Alternative 1--proposed paragraph (d)(1)(ii)(C)(3) of 
Rule 3a71-3 (citing the clearing rights disclosure requirement set 
forth in Rule 15Fh-3(d)); see also Business Conduct Adopting 
Release, 81 FR at 29992-93.
    \135\ See Exchange Act Section 3C(g)(5) (addressing clearing 
rights of transactions that have been ``entered into'' by security-
based swap dealers).
    \136\ See Alternative 1--proposed paragraph (d)(1)(ii)(C)(2) of 
Rule 3a71-3 (citing the requirement for the disclosure of daily 
marks set forth in Exchange Act Section 15F(h)(3)(B)(iii) and Rule 
15Fh-3(c) thereunder).
    \137\ See Alternative 1--proposed paragraphs (d)(1)(ii)(C)(5)-
(6) of Rule 3a71-3. Those paragraphs cross-reference requirements 
regarding the following:
    (1) Security-based swap portfolio compression (proposed Exchange 
Act Rule 15Fi-4). The proposed portfolio compression rule would 
address processes whereby counterparties terminate or change the 
notional value of security-based swap in the portfolio between the 
counterparties.
    (2) Security-based swap trading relationship documentation 
(proposed Exchange Act Rule 15Fi-5). The proposed trading 
documentation rule would address the trading relationship between 
counterparties, including terms addressing payment obligations, 
netting, default or termination events and allocation of reporting 
obligations.
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    Separately, although the Exchange Act and Commission rules apply 
certain requirements to security-based swap dealers that act as 
advisors or counterparties to special entities,\138\ the Commission has 
defined the term ``special entity'' so as not to encompass non-U.S. 
persons.\139\ Because the counterparties to the transactions that are 
the subject of this exception would not be U.S. persons, the special 
entity requirements would not apply to those transactions.
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    \138\ See generally Exchange Act Sections 15F(h)(4) and (5), and 
Exchange Act Rules 15Fh-3(a)(2), (3), 15Fh-4 and 15Fh-5.
    \139\ See Exchange Act Rule 15Fh-2(d); see also Exchange Act 
Release No. 77617 (Apr. 14, 2016), 81 FR 29960, 30013 (May 13, 
2016).
    Exchange Act Section 15F(h)(4)(A)(iii) and Exchange Act Rule 
15Fh-4(a)(3), which prohibit security-based swap dealers from 
engaging in any act, practice or course of business that is 
fraudulent, deceptive or manipulative, still would apply to those 
registered security-based swap dealers in connection with this 
exception, notwithstanding those provisions' basis in Section 
15F(h)(4) (which mostly addresses a security-based swap dealer's 
obligations in dealing with special entities).
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b. Application of Other Requirements
    By virtue of being a registered security-based swap dealer, the 
entity engaged in arranging, negotiating or executing activity in the 
United States would have to comply with additional requirements 
applicable to security-based swap dealers, including, but not limited 
to requirements related to supervision, chief compliance officers, 
books and records and financial responsibility.
3. Commission Access to Relevant Books, Records and Testimony, and 
Related Obligations
    Under the proposal, the non-U.S. person relying on the conditional 
exception would, upon request, promptly have to provide the Commission 
or its representatives with any information or documents within the 
non-U.S. person's possession, custody or control related to 
transactions under the exception, as well as making its foreign 
associated persons available for testimony, and providing assistance in 
taking the evidence of other persons, wherever located, related to 
those transactions.\140\
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    \140\ See Alternative 1--proposed paragraph (d)(1)(iii)(A) of 
Rule 3a71-3. That proposed paragraph further would specify that the 
non-U.S. person must provide this information under request of the 
Commission or its representatives or pursuant to arrangements or 
agreements reached between any foreign securities authority, 
including any foreign government, and the Commission or the U.S. 
government.
     Proposed paragraph (a)(11) of Rule 3a71-3 in general would 
define the term ``foreign associated person'' as a natural person 
domiciled outside the United States that is a partner, officer, 
director, branch manager or employee of the non-U.S. person taking 
advantage of the exception, or that controls, is controlled by or is 
under common control with that non-U.S. person.
---------------------------------------------------------------------------

    In addition, the registered security-based swap dealer engaged in 
that activity in the United States must create and maintain all 
required books and records relating to the transaction subject to the 
exception, including those required by Exchange Act Rules 17a-3 and 
17a-4, or Rules 18a-5 and 18a-6, as applicable.\141\ The condition 
further clarifies that this obligation would extend to books and 
records requirements related to the conditions, discussed above, 
requiring the registered security-based swap dealer to comply with 
Title VII requirements relating to: Disclosure of risks, 
characteristics, incentives and conflicts; suitability; fair and 
balanced communications; trade acknowledgment and verification; and 
portfolio reconciliation.\142\
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    \141\ See Alternative 1--proposed paragraph (d)(1)(iii)(B)(1) of 
Rule 3a71-3. Under proposed books and records requirements, a 
registered security-based swap dealer would be required to comply 
with the books and records requirements of Exchange Act Rules 17a-3 
and 17a-4 if it is dually registered as a broker-dealer, or the 
requirements of Rules 18a-5 and 18a-6 if it is not. See generally 
Recordkeeping and Reporting Proposing Release, 79 FR at 25298-302, 
25307-13; Risk Mitigation Proposing Release, 84 FR at 4674-75.
    Consistent with the provisions of those proposed books and 
records requirements, the registered entity would make and/or 
preserve the following types of records related to the transactions 
at issue: Records of communications; written agreements; copies of 
trade acknowledgments; records related to transactions not verified 
in a timely manner; documents related to compliance with security-
based swap dealer business conduct standards; and documents related 
to compliance with portfolio reconciliation requirements. Other 
types of records addressed by those proposed books and records 
requirements--e.g., inclusion of trades in financial ledgers--
preliminarily would not appear to be required for the registered 
entity in connection with these transactions, as the registered 
entity would not have direct financial obligations under the 
transactions.
    \142\ See Alternative 1--proposed paragraph (d)(1)(iii)(B)(1) of 
Rule 3a71-3 (requiring creation and maintenance of books and records 
relating to the requirements specified in proposed paragraph 
(d)(1)(ii)(B)).
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    The registered security-based swap dealer further must obtain from 
the non-U.S. person relying on the exception, and maintain, 
documentation encompassing all terms governing the trading relationship 
between the non-U.S. person and its counterparty relating to the 
transactions subject to this exception, including terms addressing 
payment obligations, netting of payments, events of default or other 
termination events, calculation and netting of obligations upon 
termination, transfer of rights and obligations, allocation of any 
applicable regulatory reporting obligations, governing law, valuation, 
and dispute resolution.\143\
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    \143\ See Alternative 1--proposed paragraph (d)(1)(iii)(B)(2) of 
Rule 3a71-3. These records are consistent with those required by the 
Commission's proposed trading relationship documentation rule. See 
Risk Mitigation Proposing Release, 84 FR at 4673-74 (proposing 
Exchange Act Rule 15Fi-5).
    As discussed above in connection with the implementation of the 
trade acknowledgment and verification condition (see note 126, 
supra), the Commission is mindful that foreign blocking laws, 
privacy laws, secrecy laws and other foreign legal barriers may 
impede the transfer of relevant records among affiliates for 
purposes of complying with this condition. Here too, the Commission 
preliminarily believes that the exception should not be available if 
such impediments to transferring information precluded compliance 
with the condition requiring the registered entity to obtain trading 
relationship documentation, given the need for the Commission to 
have a comprehensive view of the dealing activities connected with 
transactions relying on the proposed exception, to facilitate the 
Commission's ability to identify fraud and abuse in connection with 
transactions that have been arranged, negotiated or executed in the 
United States.

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[[Page 24224]]

    In addition, the registered security-based swap dealer would have 
to obtain from the non-U.S. person relying on the exception written 
consent to service of process for any civil action brought by or 
proceeding before the Commission, specifying that process may be served 
on the non-U.S. person in the manner set forth in the registered 
security-based swap dealer's current Form SBSE, SBSE-A or SBSE-BD, as 
applicable.\144\
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    \144\ See Alternative 1--proposed paragraph (d)(1)(iii)(B)(3) of 
Rule 3a71-3. Form SBSE addresses applications for registration as 
security-based swap dealers or major security-based swap 
participants. Form SBSE-A addresses such applications by persons 
that are registered or registering with the CFTC as swap dealers. 
Form SBSE-BD addresses such applications by persons that are 
registered broker-dealers. These forms may be found at https://www.sec.gov/forms.
---------------------------------------------------------------------------

    Those proposed requirements--relating to Commission access to 
information of the non-U.S. person, the obligation of the registered 
security-based swap dealer to create and maintain information related 
to the transaction, and to obtain and maintain trading relationship 
documentation from the non-U.S. person, and the obligation of the non-
U.S. person to consent to service of process--should help provide the 
Commission with a comprehensive view of the dealing activities 
connected with transactions relying on the proposed exception, and 
facilitate the Commission's ability to identify fraud and abuse in 
connection with transactions that have been arranged, negotiated or 
executed in the United States.\145\
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    \145\ The proposed conditions regarding Commission access to 
information of the non-U.S. person, and regarding the need for the 
non-U.S. person to consent to service of process, are similar to the 
access and consent to service conditions in Exchange Act Rule 15a-
6(a)(3). Rule 15a-6 in part provides a conditional exemption from 
broker-dealer regulation for foreign broker-dealers in connection 
with certain activities that are intermediated by registered broker-
dealers. That rule in part requires that a foreign broker-dealer 
provide the Commission (upon request or pursuant to agreements 
reached between any foreign securities authority and the Commission 
or the U.S. Government) with any information or documents within the 
possession, custody, or control of the foreign broker or dealer, any 
testimony of foreign associated persons, and any assistance in 
taking the evidence of other persons, wherever located. See Exchange 
Act Rule 15a-6(a)(3)(i)(B), (c). The proposed conditions would 
modify the Rule 15a-6 access language to better describe the breadth 
of the access afforded under this condition--e.g., the proposed 
condition requires that the information be provided ``promptly,'' 
and specifically references supervisory or enforcement memoranda of 
understanding and other arrangements with foreign authorities.
    The proposed conditions regarding the obligation of the 
registered security-based swap dealer contains elements comparable 
to a condition of Rule 15a-6 that states that a registered broker-
dealer must be responsible for maintaining required books and 
records relating to the transactions conducted pursuant to the 
exemption, including books and records required by applicable 
Exchange Act rules. See Exchange Act Rule 15a-6(a)(3)(iii)(A)(4). 
The proposal also incorporates language providing for the registered 
security-based swap dealer to obtain trading relationship 
documentation to further promote effective Commission access to 
relevant information.
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    The proposed condition related to access to information, documents 
or testimony further provides that if, despite the non-U.S. person's 
best efforts, the non-U.S. person is prohibited by applicable foreign 
law or regulations from providing such access to the Commission, the 
non-U.S. person may continue to rely on the exception until the 
Commission issues an order modifying or withdrawing an associated 
``listed jurisdiction'' determination.\146\ As discussed below, 
proposed provisions relating to the ``listed jurisdiction'' condition 
to the exception in part would permit the Commission to withdraw a 
listed jurisdiction determination if the jurisdiction's laws or 
regulations have had the effect of preventing the Commission or its 
representatives from accessing such information, documents and 
testimony.\147\
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    \146\ See Alternative 1--proposed paragraph (d)(1)(iii)(A) of 
Rule 3a71-3 (referring to listed jurisdiction withdrawal provisions 
of paragraph (d)(2)(iii)).
     That continued reliance provision is limited to circumstances 
in which the failure to provide access is due to applicable foreign 
law or regulations. Accordingly, a non-U.S. person's failure to 
provide the Commission with required information for any reason 
other than prohibition by applicable foreign law or regulations 
would cause the person to be in violation of the conditions to the 
exception, making the exception unavailable to that person.
    \147\ See part III.B.5, infra.
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4. Disclosures to Counterparties
    The proposed exception further would be conditioned on the 
registered security-based swap dealer notifying the counterparties of 
the non-U.S. person relying on the exception that the non-U.S. person 
is not registered as a security-based swap dealer, and that certain 
Exchange Act provisions or rules addressing the regulation of security-
based swaps would not be applicable to the non-U.S. person in 
connection with the transaction, including provisions affording 
clearing rights to counterparties.\148\ To promote effective 
disclosure, the registered security-based swap dealer would have to 
provide this information contemporaneously with and in the same manner 
(e.g., oral, electronic or otherwise) as the arranging, negotiating or 
executing activity at issue.\149\
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    \148\ See Alternative 1--proposed paragraph (d)(1)(iv) of Rule 
3a71-3; see also notes 134 and 135, supra, and accompanying text 
regarding clearing rights.
    \149\ This disclosure requirement would not apply if the 
identity of that counterparty is not known to that registered 
security-based swap dealer at a reasonably sufficient time prior to 
the execution of the transaction to permit such disclosure. Id. 
Circumstances in which the registered security-based swap dealer 
engaged in relevant activity may not know the identity of the 
counterparty could include circumstances in which the registered 
security-based swap dealer provides only execution services, and 
does not arrange or negotiate the transactions at issue, as well as 
circumstances where personnel in the United States specify a trading 
strategy or techniques carried out through algorithmic trading or 
automated electronic execution of security-based swaps. See also 
note 117, supra (discussing a similar carveout in connection with 
the security-based swap dealer requirements for disclosure of risks, 
characteristics, material incentives and conflicts of interest).
---------------------------------------------------------------------------

    This proposed condition is intended to help guard against 
counterparties assuming that the involvement of U.S. personnel in a 
arranging, negotiating or executing capacity as part of the transaction 
would be accompanied by all of the safeguards associated with Title VII 
security-based swap dealer regulation. Because the disclosure must be 
provided contemporaneously with, and in the same manner as, the 
activity at issue (e.g., via oral disclosure in the event that the 
market facing activity occurs via oral communications), the Commission 
does not believe that such disclosure reasonably could be provided via 
inclusion in standard trading documentation.
5. Applicability of Financial Responsibility Requirements of a Listed 
Jurisdiction
    Finally, the proposed exception would be conditioned on the 
requirement that the non-U.S. person relying on the exception be 
subject to the margin and capital requirements of a ``listed 
jurisdiction'' when engaging in transactions subject to this 
exception.\150\ The Commission conditionally or unconditionally may 
determine ``listed jurisdictions'' by order, in response to 
applications or upon the Commission's own initiative.\151\
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    \150\ See Alternative 1--proposed paragraph (d)(1)(v) of Rule 
3a71-3 (cross-referencing proposed the data access provisions of 
proposed paragraph (d)(1)(iii)(A)).
    \151\ See Alternative 1--proposed paragraph (d)(1) of Rule 3a71-
3.
     Proposed paragraph (a)(12) of Rule 3a71-3 would define the term 
``listed jurisdiction'' to mean any jurisdiction which the 
Commission by order has designated as a listed jurisdiction for 
purposes of the exception.
    The proposal also specifies that applications for listed 
jurisdiction status may be made by parties or groups of parties that 
potentially would rely on the exception from the counting rule, and 
by any foreign financial authorities supervising such parties. The 
proposal further states that such applications must be filed 
pursuant to the procedures specified in Exchange Act Rule 0-13. See 
Alternative 1--proposed paragraph (d)(2)(i) of Rule 3a71-3. Rule 0-
13 currently addresses substituted compliance applications, and the 
Commission is proposing to amend the caption of that rule and make 
certain additions to the text of that rule so that it also 
references ``listed jurisdiction'' applications.

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[[Page 24225]]

    The proposed listed jurisdiction condition is intended to help 
avoid creating an incentive for dealers to book their transactions into 
entities that solely are subject to the regulation of jurisdictions 
that do not effectively require security-based swap dealers or 
comparable entities to meet certain financial responsibility standards. 
Absent this type of condition, the exception from the de minimis 
counting requirement could provide a competitive advantage to non-U.S. 
persons that conduct security-based swap dealing activity in the United 
States without being subject to sufficient financial responsibility 
standards. More generally, the proposed condition is consistent with 
the belief the Commission expressed when it adopted the ``arranged, 
negotiated, or executed'' de minimis counting rule, that applying 
capital and margin requirements to such transactions between two non-
U.S. persons can help mitigate the potential for financial contagion to 
spread to U.S. market participants and to the U.S. financial system 
more generally.\152\
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    \152\ See ANE Adopting Release, 81 FR at 8616. The Commission 
further has stated:
    Subjecting non-U.S. persons that engage in security-based swap 
dealing activity in the United States at levels above the dealer de 
minimis threshold to capital and margin requirements also should 
help reduce the likelihood of firm failure and the likelihood that 
that the failure of a firm engaged in dealing activity in the United 
States might adversely affect not only its counterparties (which may 
include other firms engaged in security-based swap dealing activity 
in the United States) but also other participants in that market.
     Id. at 8617.
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    Commenters to the Commission's proposal for the ``arranged, 
negotiated, or executed'' counting requirement suggested that potential 
concerns regarding that type of outcome could be addressed by 
conditioning a broker-dealer-based alternative to the counting rule on 
the non-U.S. entity being regulated in a ``local jurisdiction 
recognized by the Commission as comparable,'' or in a G-20 jurisdiction 
or in a jurisdiction where the entity would be subject to Basel capital 
requirements.\153\ The Commission, however, does not believe that 
concerns regarding potential risks associated with this type of 
exception would adequately be addressed by a ``one size fits all'' 
approach that is linked simply to a jurisdiction's membership in the G-
20 or compliance with Basel standards, with no further opportunity to 
consider relevant regulatory practices and requirements.\154\
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    \153\ See note 23, supra, and accompanying text.
    \154\ The Commission is mindful that a jurisdiction's membership 
in the G-20 or its compliance with Basel standards can be a positive 
indicator regarding the effectiveness of the jurisdiction's margin 
and capital regimes. At the same time, the Commission also 
recognizes that implementation and oversight practices may vary even 
among those jurisdictions. Accordingly, the Commission preliminarily 
believes that the proposed individualized ``listed jurisdiction'' 
assessment would provide us an appropriate degree of discretion to 
consider whether the jurisdiction has implemented appropriate 
financial responsibility standards and exercises appropriate 
supervision in connection with those standards, and whether the 
Commission as necessary could access relevant information.
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    In considering a jurisdiction's potential status as a ``listed 
jurisdiction''--whether upon the Commission's own initiative or in 
response to an application for an order--the Commission would consider 
whether the order would be in the public interest.\155\ Factors would 
include consideration of the jurisdiction's applicable margin and 
capital requirements, and the effectiveness of the foreign regime's 
supervisory compliance program and enforcement authority in connection 
with those requirements, including in the cross-border context.\156\
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    \155\ See Alternative 1--proposed paragraph (d)(2)(ii) of Rule 
3a71-3.
    \156\ See Alternative 1--proposed paragraph (d)(2)(ii)(A), (B) 
of Rule 3a71-3.
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    The Commission further may by order, on its own initiative, modify 
\157\ or withdraw a listed jurisdiction determination, after notice and 
opportunity for comment, if the Commission determines that continued 
listed jurisdiction status would not be in the public interest.\158\ 
The Commission may base that modification or withdrawal on the factors 
discussed above regarding the foreign jurisdiction's margin and capital 
requirements and associated supervisory and enforcement practices.\159\ 
The Commission may also consider whether the jurisdiction's laws or 
regulations have had the effect of preventing the Commission or its 
representatives from promptly being able to obtain information 
regarding the non-U.S. persons relying on the exception.\160\ This 
latter provision reflects the importance of the proposed exception's 
information access condition,\161\ and the conclusion that it would be 
appropriate to modify or withdraw listed jurisdiction status if, in 
practice, the Commission or its representatives have been prevented 
from accessing information required under the exception due to the 
jurisdiction's laws or regulations.\162\
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    \157\ As discussed below, the Commission may modify a listed 
jurisdiction designation by broadening or narrowing the application 
of listed jurisdiction status in connection with a particular class 
of market participants or an individual market participant within 
that jurisdiction.
    \158\ See Alternative 1--proposed paragraph (d)(2)(iii) of Rule 
3a71-3. The Commission preliminarily expects that any such notice 
would be via publication in the Federal Register and on the 
Commission's website, to allow all interested parties the 
opportunity to comment, including persons that are located in the 
jurisdiction at issue and are relying on the exception.
    \159\ See Alternative 1--proposed paragraph (d)(2)(iii)(A) of 
Rule 3a71-3 (cross-referencing paragraph (d)(2)(ii)).
    \160\ See Alternative 1--proposed paragraph (d)(2)(iii)(B) of 
Rule 3a71-3. These would include potential barriers to the 
Commission's ability to obtain testimony of the non-U.S. person's 
foreign associated persons, and to obtain the assistance of the non-
U.S. person in taking the evidence of other persons. Id.
    \161\ As discussed, the proposed exception is conditioned in 
part on the non-U.S. person promptly making relevant information 
available to the Commission and its representatives. The access 
condition is intended to help ensure that the Commission and its 
representatives in practice can obtain a full view of the dealing 
activities connected with transactions at issue, to avoid 
impediments in identifying fraud and abuse in connection with 
transactions that have been arranged, negotiated or executed in the 
United States. See part III.B.3, supra.
    \162\ Given the importance of the proposed access condition, the 
Commission does not believe that persons from a foreign jurisdiction 
should be able to continue relying on the exception if the 
jurisdiction's law or regulations prevent the Commission from 
obtaining access to relevant information.
     At the same time, the Commission's initial consideration of 
whether to designate a particular jurisdiction as a ``listed 
jurisdiction'' would focus on the jurisdiction's applicable margin 
and capital requirements and the foreign regime's supervisory 
compliance program and enforcement authority in connection with 
those requirements. This in part reflects the listed jurisdiction 
condition's core role in helping to ensure that non-U.S. persons 
that rely on the proposed exception are subject to adequate capital 
and margin requirements. More generally, this approach also reflects 
the expectation that, in practice, methods may be developed to help 
provide the Commission with access to requested information.
     Separately, the Commission's decision to modify or withdraw 
listed jurisdiction status may be based on any other factor it 
determines to be relevant to whether continued status as a listed 
jurisdiction would be in the public interest. See Alternative 1--
proposed paragraph (d)(2)(iii)(C) of Rule 3a71-3.
---------------------------------------------------------------------------

    Because listed jurisdiction determinations may be conditional or 
unconditional, the Commission may modify a determination, among other 
circumstances, when: (1) Certain market participants or classes of 
market participants in the jurisdiction are not required to comply with 
the financial responsibility requirements that

[[Page 24226]]

underpin the designation; (2) the jurisdiction's supervisory or 
enforcement practices oversee certain market participants or classes of 
market participants differently than others; or (3) the jurisdiction's 
barriers to data access apply to certain market participants or classes 
of market participants but not others. In practice, the Commission's 
use of this authority may cause the exception to be unavailable to 
certain groups of market participants in a jurisdiction, or to 
individual market participants.\163\
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    \163\ For example, as discussed above in conjunction with the 
information access provision, if a non-U.S. person is prohibited by 
applicable foreign law or regulations from providing access to the 
Commission or its representatives, the non-U.S. person may continue 
to rely on the exception until the Commission issues an order 
modifying or withdrawing an associated ``listed jurisdiction'' 
determination. To the extent that such prohibitions apply in 
practice to a particular class of market participants, or to an 
individual market participant in that jurisdiction, a modification 
of a listed jurisdiction order may exclude that class of market 
participants or that individual market participant from reliance on 
the exception.
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    Preliminarily--based on the Commission's understanding of relevant 
margin and capital requirements in those jurisdictions--the Commission 
anticipates that the initial set of listed jurisdiction determinations 
may include some or all of the following jurisdictions: Australia, 
Canada, France, Germany, Hong Kong, Japan, Singapore, Switzerland, and 
the United Kingdom. The Commission is soliciting comment as to whether 
listed jurisdiction status may be appropriate for any of those 
jurisdictions, based on those jurisdictions' financial responsibility 
requirements and associated supervisory and enforcement programs.\164\ 
The Commission further anticipates that it may issue a set of listed 
jurisdiction orders in conjunction with its final action on this 
proposal, including orders addressing the jurisdictions specified 
above. As discussed above, however, if the Commission determines that 
the laws or regulations of a listed jurisdiction have prevented the 
Commission from obtaining relevant information required pursuant to 
this exception in relation to any person in the listed jurisdiction 
availing itself of the exception, the Commission may modify or withdraw 
a listed jurisdiction designation for that reason.
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    \164\ See part III.D.3, infra.
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    ``Listed jurisdiction'' applications may be expected to raise 
issues that are analogous to those that would accompany applications 
for substituted compliance in connection with margin and capital rules, 
in that both types of applications would require the Commission to 
consider the substance and implementation of foreign margin and capital 
standards.\165\ Those two types of applications, however, would arise 
in materially distinct contexts. In particular, ``listed jurisdiction'' 
status would be relevant only with regard to non-U.S. persons whose 
dealing transactions with U.S.-person counterparties, if any, would be 
below the de minimis thresholds. This de minimis cap on its dealing 
transactions with U.S. persons likely would attenuate--although not 
eliminate--the potential effect of the firm's failure on U.S. persons 
and markets. Substituted compliance, in contrast, would address the 
margin and capital requirements applicable to registered security-based 
swap dealers that may engage in dealing transactions with U.S. 
counterparties in amounts above the de minimis thresholds, and whose 
failure is likely to pose greater direct threats to U.S. persons and 
markets. Substituted compliance accordingly would be predicated on the 
foreign margin and capital regime producing regulatory outcomes that 
are comparable to the analogous requirements under Title VII. 
Similarly, although the Commission will also consider, in connection 
with a substituted compliance determination, the effectiveness with 
which a regime administers its supervisory compliance program and 
exercises its enforcement authority, the different purposes of these 
proposed exclusions and a substituted compliance determination mean 
that the Commission may reach different conclusions regarding these 
issues when considering a substituted compliance determination than it 
does when considering listed status.
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    \165\ The Commission has proposed to make a mechanism for 
substituted compliance orders generally available in connection with 
security-based swap dealer requirements under Exchange Act Section 
15F. See ``Cross-Border Security-Based Swap Activities; Re-Proposal 
of Regulation SBSR and Certain Rules and Forms Relating to the 
Registration of Security-Based Swap Dealers and Major Security-Based 
Swap Participants'' (May 1, 2013), 78 FR 30968, 31207-08 (May 23, 
2013) (proposing substituted compliance rule for section 15F 
requirements; since then a mechanism for substituted compliance has 
been adopted via Exchange Act Rule 3a71-6 in connection with 
business conduct and trade acknowledgment and verification 
requirements). Those Section 15F requirements include security-based 
swap dealer margin and capital requirements. Substituted compliance 
provides a mechanism by which a non-U.S. security-based swap dealer 
may satisfy its requirements under Title VII via compliance with 
analogous requirements of a foreign regime, contingent in part on 
the Commission deeming the scope and objectives of the relevant 
foreign requirements to be comparable to analogous Title VII 
requirements. As proposed, substituted compliance would not be 
available in connection with the Commission's segregation 
requirements.
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C. Alternative 2--Second Alternative Proposed Conditional Exception

    Alternative 2 for the proposed conditional exception would share a 
number of elements with Alternative 1, but instead would allow the 
arranging, negotiating or executing activity in the United States to be 
conducted by an entity that is registered as a broker, without 
requiring that entity also to register as a security-based swap 
dealer.\166\ Alternative 2 also would permit that conduct to be 
conducted by a registered security-based swap dealer, consistent with 
the Alternative 1.\167\
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    \166\ Alternative 2 would not be satisfied if this arranging, 
negotiating or executing activity is conducted by a bank that has 
not registered as a broker due to the Exchange Act's ``broker'' 
definition's exceptions for bank brokerage activity, unless the bank 
is registered as a security-based swap dealer.
    \167\ For the reasons set forth above (see note 106, supra, and 
accompanying text), the Commission believes that such a security-
based swap dealer also generally would be required to register as a 
broker unless it can avail itself of an exception or exemption from 
broker registration.
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    Certain proposed conditions to Alternative 2 would be the same as 
those of Alternative 1, while others would be modified to reflect the 
potential for the activity in the United States to be conducted by a 
registered broker that is not also registered as a security-based swap 
dealer. Alternative 2 accordingly would make use of broker regulation 
to provide for oversight of the transactions at issue while adding 
certain conditions to fill gaps in regulation that otherwise may arise 
absent the involvement of a registered security-based swap dealer. 
Those conditions should help mitigate the previously expressed concerns 
that a broker-focused approach may effectively supplant Title VII 
security-based swap dealer regulation for a majority of dealing 
activity carried out in the United States.\168\
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    \168\ See part I.A.3, supra. Because Alternative 2 would not be 
satisfied by the use of a bank that is not registered as a broker, 
the Commission's previously expressed concerns regarding differences 
in oversight between brokers and banks should not be a concern here.
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1. U.S. Activity Conducted by a Majority-Owned Registered Broker 
Affiliate or by a Security-Based Swap Dealer Affiliate
    Under Alternative 2, the U.S.-based arranging, negotiating and 
executing activity that otherwise would trigger the counting 
requirement must be conducted by the U.S. personnel in their capacity 
as persons associated with an entity that: (a) Is registered as a 
broker or a security-based swap dealer, and (b)

[[Page 24227]]

is a majority-owned affiliate of the non-U.S. person relying on the 
exception.\169\
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    \169\ See Alternative 2--proposed paragraph (d)(1)(i) of Rule 
3a71-3. Exchange Act Section 3(a)(18) defines the terms ``person 
associated with a broker or dealer'' and ``associated person of a 
broker or dealer'' to encompass, inter alia, partners, officers, 
directors, employees and persons controlling, controlled by, or 
under common control with a broker or dealer.
    Alternative 2 shares, with Alternative 1, the definitions of 
``majority-owned affiliate,'' ``foreign associated person'' and 
``listed jurisdiction.''
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    Consistent with Alternative 1, the affiliation requirement is 
intended to help tailor the exception to reflect the proposed 
exception's objective of helping to avoid personnel relocation, and to 
also help ensure that the financial group has a significant financial 
interest in the registered entity's compliance with applicable 
requirements.\170\
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    \170\ See part III.A, supra.
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2. Compliance With Certain Security-Based Swap Dealer Requirements
    For a non-U.S. person to rely on Alternative 2, the registered 
broker or security-based swap dealer that conducts the arranging, 
negotiating or executing activity in the United States would be 
required to comply with certain security-based swap dealer requirements 
``as if'': (a) The counterparties to the non-U.S. person relying on the 
exception also were counterparties to that entity, and (b) that entity 
were registered with the Commission as a security-based swap dealer (in 
the event the entity is registered only as a broker and not as a 
security-based swap dealer). As with Alternative 1, the Commission 
preliminarily believes that it would be appropriate to condition 
Alternative 2 on compliance by the registered entity with the following 
requirements applicable to security-based swap dealers: Disclosure of 
risks, characteristics, incentives and conflicts; suitability of 
recommendations; fair and balanced communications; trade acknowledgment 
and verification; and portfolio reconciliation.\171\
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    \171\ See Alternative 2--proposed paragraphs (d)(1)(ii)(A), (B) 
of Rule 3a71-3.
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    As discussed in connection with Alternative 1, those requirements 
would impose standards of conduct in connection with the transactions 
at issue, but would not be expected to impose significant additional 
information-gathering or documentation burdens on the registered 
entity.\172\ While recognizing that certain of the Title VII security-
based swap dealer requirements have similarities to the requirements 
applicable to broker-dealers, the Commission preliminarily believes 
that the arranging, negotiating or executing security-based swap 
activity of U.S. personnel should be carried out pursuant to standards 
of conduct imposed under Title VII, regardless of whether the ultimate 
counterparties are U.S. or non-U.S. persons.
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    \172\ See part III.B.2.a, supra.
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    Alternative 2, like Alternative 1, also would provide that the 
exception would not be conditioned on the registered entity's 
compliance with eligible contract participant verification, clearing 
rights disclosure, ``know your counterparty,'' daily mark disclosure 
and certain proposed risk mitigation requirements.\173\ As discussed 
above, the fact that the proposal would not be conditioned on 
compliance with the ECP verification requirement would not affect 
existing limitations on entering into security-based swaps with non-
ECPs.\174\
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    \173\ See second alternative--proposed paragraph (d)(1)(ii)(C) 
of Rule 3a71-3; see also notes 130 through 137, supra, and 
accompanying text. Those particular Title VII requirements would be 
at issue only if the entity is registered as a security-based swap 
dealer.
    \174\ See note 133, supra, and accompanying text.
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    By virtue of being a registered broker, the registered entity also 
would be subject to all other applicable broker-dealer requirements 
under the federal securities laws and self-regulatory organization 
(``SRO'') rules.
3. Other Conditions
    Consistent with Alternative 1, and for the same reasons, 
Alternative 2 further would encompass conditions related to: Commission 
access to books, records and testimony of the non-U.S. person relying 
on the exception; the registered entity's maintenance of trading 
relationship documentation; consent to service of process;\175\ 
disclosures to counterparties; and the non-U.S. person being subject to 
the financial responsibility requirements of a listed 
jurisdiction.\176\
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    \175\ Because the registered entity under Alternative 2 may be a 
registered broker, Alternative 2 allows for process to be served on 
the non-U.S. person in the manner set forth in the registered 
entity's Form BD (or, consistent with Alternative 1, in the manner 
set forth in the registered entity's Forms SBSD, SBSE-A or SBSE-BD).
    \176\ See Alternative 2--proposed paragraphs (d)(1)(iii) through 
(d)(1)(v), (d)(2) and (d)(3) of Rule 3a71-3; see also parts 
III.B.3--III.B.5, supra.
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4. Carveout From De Minimis Counting Requirements
    In adopting the ``arranged, negotiated, or executed'' counting 
requirement, the Commission recognized that arranging, negotiating or 
executing conduct by personnel in the United States could constitute 
dealing activity in the United States, regardless of the fact that the 
parties to the transactions are not U.S. persons.\177\ To avoid 
ambiguity regarding whether a registered broker's U.S. activity under 
this alternative independently must be counted against the applicable 
de minimis thresholds--and hence potentially require the registered 
broker also to register as a security-based swap dealer--Alternative 2 
would provide that the persons that engage in such conduct pursuant to 
the exception would not have to count the associated security-based 
swap transactions against the de minimis thresholds.\178\ Absent such 
an exception, the Commission is concerned that Alternative 2 
potentially would be ineffective due to the reluctance of entities that 
are not registered as security-based swap dealers to engage in the 
arranging, negotiating or executing conduct envisioned by the proposed 
alternative.
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    \177\ See ANE Adopting Release, 81 FR at 8621.
    \178\ See Alternative 2--proposed paragraph (d)(4) of Rule 3a71-
3.
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D. Solicitation of Comments Regarding the Proposed Amendment to Rule 
3a71-3

    The Commission requests comment on all aspects of the proposed 
amendment to Rule 3a71-3, including the following issues:
1. Involvement of U.S. Personnel in Arranging, Negotiating and 
Executing Transactions Between Non-U.S. Counterparties
    To what extent do U.S. personnel participate in arranging, 
negotiating or executing activities in connection with security-based 
swap dealing transactions involving two non-U.S. counterparties? 
Commenters particularly are invited to address the following:
    a. What particular services do U.S. personnel typically provide as 
part of such activities?
    b. What types of information do U.S. personnel typically 
communicate to an affiliate's security-based swap counterparties in 
connection with such activities?
    c. To what extent are U.S. personnel typically involved in 
negotiating pricing or other terms of security-based swaps in 
connection with such activities?
    d. What is the typical mode of communication (e.g., telephonic, 
written, in-person) used between those U.S. personnel and an 
affiliate's security-based swap counterparties in connection with such 
activities?
    e. What types of instruments (e.g., securities issued by U.S. 
persons)

[[Page 24228]]

typically underlie the security-based swaps that are the subject of 
such transactions involving arranging, negotiating or executing 
activity by U.S. personnel?
    f. Are U.S. personnel involved in such arranging, negotiating or 
executing activities on behalf of non-U.S. persons that are not 
affiliates? If so, what services do U.S. personnel provide and what 
types of instruments are the subject of such activities by U.S. 
personnel on behalf of unaffiliated non-U.S. persons?
    g. Are there particular categories of arranging, negotiating or 
executing activity that U.S. personnel typically perform, to facilitate 
a non-U.S. person's security-based swap dealing transactions with non-
U.S. counterparties, that are so limited in scope that they may not 
trigger the concerns that led to the adoption of the ``arranged, 
negotiated, or executed'' counting standard?
    h. To what extent do U.S. personnel typically provide the primary 
point of contact for managing sales and trading relationships with non-
U.S. person counterparties on behalf of non-U.S. affiliates engaged in 
security-based swap dealing activity? Conversely, to what extent is the 
involvement of such U.S. personnel typically incidental to a 
relationship that the non-U.S. person dealer manages primarily from an 
office outside the United States, and what is the nature of any such 
incidental involvement?
    i. To the extent U.S. personnel perform both types of functions--
serving as a primary point of contact for some transactions and serving 
an incidental role for other transactions--are those functions 
determined on the basis of counterparty location, product 
characteristics, or on the basis of some other factors?
2. Implementation Issues Associated With the Existing ``Arranged, 
Negotiated, or Executed'' Counting Requirement
    To what extent would a conditional exception from the ``arranged, 
negotiated, or executed'' counting requirement be appropriate to 
address implementation issues potentially associated with that 
requirement? Commenters particularly are invited to address the 
following:
    a. What would be the expected consequences if the Commission does 
not adopt either proposed alternative for an exception to the de 
minimis counting requirement? For example, how many financial groups 
would expect to register one or more non-U.S. entities as security-
based swap dealers absent an exception? How many non-U.S. entities 
would such financial groups typically expect to have to register in 
those circumstances? Conversely, how many financial groups would be 
expected to register non-U.S. entities as security-based swap dealers 
in the presence of this type of exception?
    b. What contingency plans, if any, have such financial groups drawn 
up to address the potential consequences associated with compliance 
with the ``arranged, negotiated, or executed'' counting standard?
    c. In practice, would such financial groups be expected to relocate 
U.S. personnel and/or relocate functions out of the United States to 
avoid having to count security-based swap transactions pursuant to the 
``arranged, negotiated, or executed'' counting standard?
3. ``Listed Jurisdiction'' Condition and Definition, and Potential 
Effect of Barriers to the Transfer of Information
    Would the proposed ``listed jurisdiction'' condition and associated 
definition appropriately prevent the proposed exception from permitting 
persons that engage in security-based swap dealing activity in the 
United States from booking transactions into affiliated non-U.S. 
booking entities that are not subject to adequate financial 
responsibility oversight or that would not allow for sufficient access 
to information by the Commission? Commenters particularly are invited 
to address the following:
    a. What criteria should the Commission use to help ensure that non-
U.S. persons relying on the exception are subject to adequate financial 
responsibility requirements?
    b. Would it be appropriate, as commenters previously suggested, to 
exclude transactions that are arranged, negotiated or executed by U.S. 
personnel if the non-U.S. dealer is located in a G-20 jurisdiction or 
is subject to the margin and capital requirements of a Basel-compliant 
jurisdiction?
    c. Would ``listed jurisdiction'' status be appropriate for the 
following jurisdictions: Australia, Canada, France, Germany, Hong Kong, 
Japan, Singapore, Switzerland, and the United Kingdom?
     In this regard commenters particularly are invited to 
address whether listed jurisdiction status would be warranted in light 
of those jurisdictions' applicable margin and capital requirements, and 
the effectiveness of those jurisdictions' supervisory compliance 
program and enforcement authority in connection with those 
requirements, including in the cross-border context.
     Commenters also are invited to address potential 
impediments to the Commission's ability to promptly access information 
or documents regarding the activities of persons in those 
jurisdictions, to obtain the testimony of non-U.S. persons that are 
associated with those persons, and to obtain the assistance of persons 
relying on the exception in taking the evidence of other persons, 
wherever located.\179\
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    \179\ As discussed above (see notes 160 through 162, supra, and 
accompanying text), although the Commission preliminarily does not 
expect to consider impediments to information access as part of 
initial listed jurisdiction determinations, the Commission may 
modify or withdraw listed jurisdiction status in the event that, in 
practice, the Commission or its representatives have been prevented 
from accessing information due to the jurisdiction's laws and 
regulations.
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    d. What criteria should the Commission use to help ensure that it 
can access information from non-U.S. persons relying on the exception? 
Commenters also are invited to address how potential impediments to the 
cross-border transfer of information may affect compliance with the 
information access condition and other conditions to the exception, 
including the effect of any such impediments on the registered entity's 
ability to comply with conditions related to the trade acknowledgment 
and verification, and to the registered entity's obligation to obtain 
trading relationship documentation from its non-U.S. affiliate.
4. Appropriate Counterparty Protections
    What conditions are appropriate to afford protections to the 
counterparties to the security-based swap transactions at issue, 
consistent with by Title VII and its implementing regulations? 
Commenters particularly are invited to address the following issues, 
and, to the extent possible, address similarities and differences 
between the activities implicated by the proposed exception and the 
activities that unregistered foreign broker-dealers may conduct 
pursuant to the exemption provided by Exchange Act Rule 15a-6: \180\
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    \180\ Exchange Act Rule 15a-6 in part permits unregistered 
foreign broker-dealers to engage in certain activities in the United 
States in connection with major institutional investors represented 
by U.S. fiduciaries on an ``unchaperoned'' basis. See Rule 15a-
6(a)(3). The Rule 15a-6(a)(3) exemption in part is conditioned on 
the requirement that a registered broker-dealer is responsible for 
effecting the resulting transactions, the requirement that an 
associated person of the registered broker-dealer be involved in all 
of the foreign entity's visits to defined U.S. institutional 
investors, and prohibitions against the involvement of statutorily 
disqualified foreign associated persons of the foreign-broker 
dealer.
     Commission staff has provided statements regarding the 
operation of Rule 15a-6. For example, a 1997 staff no-action letter, 
inter alia, stated that the staff would not recommend enforcement 
action when foreign associated persons of a foreign broker-dealer: 
(i) Engaged in oral communications from outside the U.S. with 
certain U.S. institutional investors outside of U.S. trading hours, 
so long as the foreign associated persons do not accept orders 
(other than those involving foreign securities); and (ii) have in-
person visits with certain ``major'' U.S. institutional investors, 
so long as those contacts do not exceed 30 days a year and the 
foreign associated persons do not accept orders. That letter also 
provided a staff statement regarding the meaning of ``major U.S. 
institutional investor.'' See Letter re Securities Activities of 
U.S.-Affiliated Foreign Dealers from Richard R. Lindsey, Director, 
Division of Market Regulation to Giovanni P. Prezioso, Cleary, 
Gottlieb, Steen & Hamilton, dated Apr. 9, 1997 (``Nine Firms 
Letter''), available at https://www.sec.gov/divisions/marketreg/mr-noaction/cleary040997.pdf. Staff guidance regarding the operation of 
Rule 15a-6 is summarized in ``Frequently Asked Questions Regarding 
Rule 15a-6 and Foreign Broker-Dealers,'' available at https://www.sec.gov/divisions/marketreg/faq-15a-6-foreign-bd.htm.
    In contrast to Rule 15a-6, which provides an exemption for 
foreign entities' transactions with activities involving U.S. person 
customers, the proposed exception to Rule 3a71-3 would permit 
foreign entities to make use of U.S. activity only in connection 
with security-based swaps with non-U.S. counterparties.

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[[Page 24229]]

    a. Do the alternatives for the proposed exception appropriately 
distinguish between certain security-based swap dealer requirements 
that will be applied to the arranging, negotiating or executing 
activity in the United States as a condition to the exception (i.e., 
requirements related to disclosures of risks, characteristics, 
incentives and conflicts, suitability, fair and balanced 
communications, trade acknowledgement and verification, initial 
portfolio reconciliation, and books and records), and other 
requirements that the Commission is not proposing to apply to that 
activity as a condition to the exception (i.e., requirements related to 
ECP verification, daily mark disclosure, clearing rights disclosure, 
``know your counterparty'' and proposed risk mitigation requirements)?
    b. To the extent that commenters believe that there should be 
changes to the proposed allocation of security-based swap dealer 
requirements between those that are conditions to the exception, and 
those that are not, please explain how those requirements should be 
allocated for purposes of the exception, and describe how that 
alternative allocation would address concerns raised by the activity of 
the registered entity. Please also describe the practical challenges 
raised by the Commission's proposed allocation, how a different 
allocation would address those challenges, and whether there are any 
inconsistencies in the proposed allocation.
    c. To what extent would the transactions at issue be subject to 
requirements in foreign jurisdictions that are analogous to the Title 
VII requirements that are proposed to be applied as conditions to the 
exception? To what extent would the transactions at issue be subject to 
requirements in foreign jurisdictions that are analogous to the Title 
VII requirements that are not proposed to be applied as conditions to 
the exception? To what extent would analogous FINRA requirements apply 
to these transactions if the registrant is registered as a broker?
    d. As an alternative to the proposed conditions to this exception, 
should this exception instead be subject to conditions that are styled 
after the staff guidance that describes conditions under which foreign 
broker-dealers may operate in the United States pursuant to Exchange 
Act Rule 15a-6(a)(3)? \181\ In this regard the Commission notes that 
foreign broker-dealers relying on Rule 15a-6 differ from foreign 
dealers that would avail themselves of proposed exceptions in at least 
two respects: First, the former are permitted to engage in only limited 
activity inside the United States, while the latter would be arranging, 
negotiating, and executing transactions using U.S. personnel on an 
ongoing basis; second, the former exemption applies to transactions 
with U.S. persons while the latter exception would apply only to 
transactions with non-U.S. persons. How should those differences affect 
the scope of any relief provided and any conditions placed on that 
relief? Should compliance with any or all of the requirements that are 
a condition to the proposed exception be eliminated, either entirely or 
for certain ``sophisticated'' counterparties? If so, how should 
``sophisticated'' be defined for these purposes? Should any eligible 
contract participant be considered ``sophisticated,'' or should 
``sophisticated'' encompass only a counterparty that meets a higher 
standard, such as a standard similar to the standards applicable to: 
(1) Qualified institutional buyers under Rule 144A(a)(1)-(4) \182\ 
under the Securities Act of 1933; (2) major institutional investors, as 
defined in Exchange Act Rule 15a-6 and discussed in subsequent staff 
guidance; or (3) the security-based swap dealer suitability 
requirement's institutional counterparty standard under Rule 15Fh-
3(f)(4)? \183\ Would this alternative type of approach appropriately 
balance the implementation concerns associated with the use of the 
``arranged, negotiated, or executed'' test against the regulatory 
interests underlying the de minimis counting requirement?
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    \181\ See note 180, supra.
    \182\ See 17 CFR 230.144A.
    \183\ See note 180, supra.
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    e. Are additional conditions necessary to help ensure that the 
entity that engages in arranging, negotiating or executing activity in 
the United States appropriately would be subject to all relevant 
security-based swap dealer requirements, notwithstanding a lack of 
contractual privity with the counterparty to the transaction?
5. Issues Potentially Associated With Specific Conditions
    Are there specific conditions to the proposed exception that may 
pose implementation issues, or that otherwise should be modified? 
Commenters particularly are invited to address the following:
    a. Suitability--Are there any aspects of the suitability 
requirements applicable to security-based swap dealers that would raise 
implementation issues in the event that the entity engaged in 
arranging, negotiating or executing activity in the United States makes 
recommendations in connection with the transactions at issue? In this 
regard please describe the nature of the relationship between U.S. 
personnel operating pursuant to the exception and the foreign 
counterparties, and any challenges to obtaining the information 
necessary to comply with the suitability requirement. To what extent, 
if at all, is the suitability requirement necessary in light of the 
institutional nature of the market and the limited suitability 
requirements that apply to transactions with institutional 
counterparties? Could the concerns addressed by Rule 15Fh-3(f) be 
mitigated if the suitability condition to the exception were instead 
limited solely to the security-based swap dealer's compliance with Rule 
15Fh-3(f)(2)(iii), which would require the security-based swap dealer 
to disclose that it is acting in its capacity as a counterparty, and is 
not undertaking to assess the suitability of the security-based swap or 
trading strategy for the counterparty?
    b. Disclosure of risks, characteristics, material incentives and 
conflicts of interest--Are there implementation issues that may arise 
in connection with the proposed condition requiring the registered 
entity engaged in arranging, negotiating or executing activity in the 
United States to comply with requirements related to the disclosure of 
information regarding risks, characteristics, material incentives and 
conflicts of interest? Commenters particularly are invited to address 
whether there may be impediments related to the ability of the 
registered entity to disclose or gather information

[[Page 24230]]

regarding material incentives and conflicts of interest associated with 
the non-U.S. person relying on the proposed exception, and regarding 
how to address any such potential impediments. For example, should the 
disclosure requirement be limited to information regarding material 
incentives and conflicts of interest associated with the registered 
entity engaged in such activity in the United States?
    c. Disclosure that non-U.S. person is not registered--Are there 
implementation issues that may arise in connection with the proposed 
condition requiring disclosure that the non-U.S. person relying on this 
exception is not registered with the Commission as a security-based 
swap dealer, and that certain Exchange Act security-based swap 
requirements may not be applicable? Commenters particularly are invited 
to address whether disclosure of less information or additional 
information would be appropriate, and to address whether alternative 
approaches regarding the timing and manner of disclosure would be 
appropriate.
    d. Trade Acknowledgment and Verification--Should the Commission, as 
is proposed under Alternatives 1 and 2, condition the exception on the 
registered entity that engages in arranging, negotiating or executing 
activity in the United States complying with trade acknowledgment and 
verification requirements under Title VII as if they were a 
counterparty to the transaction? The trade acknowledgment and 
verification requirements apply in connection with a transaction in 
which a security-based swap dealer purchases or sells to any 
counterparty a security-based swap. For purposes of this exception, 
should the Commission treat the registered entity that arranges, 
negotiates, or executes a security-based swap as if it purchased or 
sold a security-based swap for purposes of the trade acknowledgment and 
verification requirements? Will a security-based swap dealer (under 
Alternative 1 or 2) or a registered broker-dealer (under Alternative 2) 
that provides limited services in connection with arranging, 
negotiating, or executing a transaction necessarily be able to comply 
with the trade acknowledgment and verification requirements as if it 
were a party to the transaction? Will the security-based swap dealer or 
registered broker-dealer necessarily have all the information required 
for a trade acknowledgment to which it is not a party? How will it 
obtain verification? Would there be potential impediments to the 
registered entity's ability to accurately reflect the terms of the 
transaction on the trade acknowledgement? Would it be sufficient to 
condition the exception on the broker-dealer complying with the 
transaction confirmation requirements of Exchange Act Rule 10b-10 as if 
the counterparty were the ``customer'' of the broker-dealer? \184\ 
Would it be necessary to modify the information required to be 
confirmed under Exchange Act Rule 10b-10 to accommodate security-based 
swaps?
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    \184\ The transaction confirmation requirements apply when a 
broker-dealer ``effect[s] for or with any customer any transaction 
in, or [induces] the purchase or sale by such customer'' of 
securities. See Exchange Act Rule 10b-10(a).
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    e. Affiliation condition--Are there implementation issues that 
would arise in connection with the proposed condition that would 
require the registered entity engaged in arranging, negotiating or 
executing activity in the United States to be a majority-owned 
affiliate of the non-U.S. person relying on the exception? Commenters 
particularly are invited to address the appropriateness of an 
affiliation condition, the potential use of alternatives to a majority-
ownership standard in connection with the condition (e.g., common 
control or ``wholly owned'' standards), and any technical or other 
implementation issues that may accompany the use of an affiliation 
standard.
    f. Portfolio reconciliation condition--The Commission further 
requests comment regarding the proposed condition that would require 
the registered entity engaged in arranging, negotiating or executing 
conduct in the United States to perform the initial portfolio 
reconciliation required by proposed Exchange Act Rule 15Fi-3. 
Commenters particularly are invited to address implementation issues 
that may be associated with that proposed condition. Commenters also 
are invited to address the potential effectiveness of that proposed 
condition in helping registered security-based swap data repositories 
comply with their verification requirements.
6. Potential Additional Conditions
    Should the proposed exception be subject to additional conditions? 
Commenters particularly are invited to address the following:
    a. Should the exception be made unavailable in circumstances in 
which U.S. entities or their personnel manage the relationship with the 
non-U.S. counterparty to the transaction? Alternatively, should 
additional conditions (e.g., compliance with ECP verification and 
``know your counterparty'' requirements) be applied to the exception in 
those circumstances?
    b. Should the exception be conditioned on the registered entity 
complying with ECP verification and ``know your counterparty'' 
requirements ``as if'' the counterparties to the non-U.S. person 
relying on the exception also were counterparties to the registered 
entity? In this regard, commenters are requested to discuss whether the 
registered entity reasonably would be expected to possess information 
regarding the counterparty to the transaction that is sufficient to 
permit compliance with those requirements.
    c. Instead, should the treatment of ECP verification and ``know 
your counterparty'' requirements for purposes of the exception depend 
in part on whether the Commission also has issued ``market color'' 
guidance, as discussed in part II supra. For example, if the Commission 
issues ``market color'' guidance, would it be likely that non-U.S. 
persons would rely on the guidance when their U.S. personnel have only 
a peripheral involvement with the resulting transaction, and that non-
U.S. persons would rely on the exception when their U.S. personnel 
engage with the counterparty more comprehensively? In that event, 
should the exception require compliance with the ECP verification and 
``know your counterparty'' provisions, based on the assumption that the 
exception would be used when U.S. personnel have a comparatively 
comprehensive degree of engagement with the counterparty, which would 
allow for compliance with those conditions?
    d. Alternatively, should the exception from the de minimis counting 
requirement be conditioned on ``as if'' compliance with those ECP 
verification and ``know your counterparty'' requirements, unless the 
registered entity has had no prior interactions with the counterparty, 
and there is no basis to believe that the registered entity would have 
further interactions with that counterparty?
    e. Should the exception further be conditioned on the registered 
entity having to disclose information regarding clearing rights? 
Commenters particularly are invited to address the expected application 
of the underlying clearing rights provisions in Exchange Act Section 
3C(g)(5) to the transactions at issue.
    f. Should the proposed exception be conditioned on the non-U.S. 
person relying on the condition having some involvement in the 
registered entity's arranging, negotiating or executing activity to the 
extent practicable, to help prevent the counterparties to these 
transactions from misconstruing the role

[[Page 24231]]

of the registered entity and the application of Title VII safeguards to 
the transactions at issue.
    g. Are there additional conditions that would be appropriate for 
incorporation into the exception?
7. Treatment of the Non-U.S. Person Relying on the Exception, Including 
Commission Access to Information
    To what extent would the absence of direct security-based swap 
dealer regulation of the non-U.S. person relying on the proposed 
exception--notwithstanding its use of U.S. personnel to conduct 
security-based swap dealing activity--raise concerns regarding gaps in 
the application of Title VII to transactions arising from security-
based swap dealing in the United States? \185\ Commenters particularly 
are invited to address the following:
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    \185\ Absent additional Commission action, see part III.D.10, 
infra, under the proposed exception the regulatory reporting and 
public dissemination requirements of Regulation SBSR still would 
apply directly to the security-based swap, by virtue of the 
transaction having been arranged, negotiated or executed in the 
United States, see Regulation SBSR Sections 908(a)(1)(v) and 
908(b)(5) (and, under alternative 2, by virtue of the transaction 
having been effected by or through a registered broker-dealer, see 
Regulation SBSR Section 908(a)(1)(iv)).
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    a. What issues may arise due to the lack of Commission regulation 
of communications between the non-U.S. person and its counterparties? 
Could this lack of regulation potentially facilitate improper practices 
in connection with dealing transactions that occur in part in the 
United States?
    b. What issues may arise due to the lack of direct Commission 
financial responsibility regulation of the non-U.S. person? How 
significant are associated concerns regarding spillovers and contagion 
arising from reputational effects that an affiliate's failure may have 
on other affiliates within the same corporate group?
    c. Do the proposed provisions to (a) require the non-U.S. person 
relying on the exception to promptly provide the Commission with 
information, documents and testimony in connection with the 
transaction, and (b) require the registered entity to obtain and 
maintain related books and records, adequately provide for transparency 
into the dealing activities associated with transactions subject to the 
exception? Should the rules provide further specificity regarding the 
procedures for withdrawing the exception in the event of impediments to 
such access? Should the exception incorporate a notice provision to 
require the non-U.S. person relying on the exception (or the registered 
entity engaged in arranging, negotiating or executing activity in the 
United States) to inform the Commission as to the transactions being 
conducted in reliance on the exception? Are there modifications that 
would allow the Commission to obtain the necessary access to books and 
records at a lower cost to the non-U.S. person and the registered 
entity?
    d. For purposes of the access provisions of proposed paragraph 
(d)(1)(iii)(A) of Rule 3a71-3--which would require non-U.S. persons 
relying on the exception to promptly make their ``foreign associated 
persons'' available to the Commission for testimony--is the proposed 
``foreign associated person'' definition in paragraph (a)(11) of the 
rule crafted appropriately? For example, should the proposed definition 
be limited so it applies only to persons who effect or who are involved 
in effecting security based swaps? If so, why?
8. Distinctions Between the Two Proposed Alternatives
    Comparatively, to what extent would the two proposed alternatives 
for the conditional exception effectively address implementation 
concerns while continuing to preserve the principles that underpin the 
``arranged, negotiated, or executed'' standard? Commenters particularly 
are invited to address the following:
    a. Under the second alternative, what concerns may arise from 
applying Title VII business conduct requirements to brokers via 
condition in lieu of security-based swap dealer registration?
    b. How would comparative security-based swap dealer capital 
requirements and broker-dealer capital requirements affect the 
implementation of the two alternatives? \186\ Would those capital 
requirements limit the ability to use a stand-alone entity to engage in 
arranging, negotiating or executing conduct in the United States on 
behalf of a non-U.S. affiliate? Would those capital requirements affect 
the potential use of a registered entity that also engages in a 
separate security-based swap dealing business, or that is registered as 
a swap dealer or as a bank? \187\
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    \186\ The proposed capital requirements applicable to those 
entities would depend on whether they are a stand-alone nonbank 
security-based swap dealer, a security-based swap dealer that is 
dually registered as a broker-dealer, a bank security-based swap 
dealer, or stand-alone broker-dealer. See Capital, Margin and 
Segregation Proposing Release, 77 FR at 70333 (proposing capital 
requirements for nonbank security-based swap dealers, including 
security-based swap dealers dually registered as broker-dealers); 80 
FR 74840 (Nov. 30, 2015) (adopting capital requirements for bank 
security-based swap dealers); 17 CFR 240.15c3-1 (prescribing capital 
requirements for broker-dealers). Those existing and proposed 
capital requirements are tailored, among other reasons, based on the 
different types of entities (e.g., a bank, a security-based swap 
dealer, or a broker-dealer) and the activities those entities engage 
in. Therefore, two different types of entities may be subject to 
substantially different capital requirements.
    \187\ For example, would the security-based swap dealer capital 
requirements associated with Alternative 1 effectively limit the use 
of that alternative to situations in which the arranging, 
negotiating or executing activity is conducted through a registered 
security-based swap dealer that engages in a separate security-based 
swap dealing business (apart from conducting arranging, negotiating 
or executing activity on behalf of an affiliate), or that also 
engages in a swap dealing business, or that is a bank? Conversely, 
would Alternative 2 better accommodate the establishment of new 
registered entities to conduct arranging, negotiating or executing 
activity consistent with the conditions to the proposed exception?
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9. Effect on Booking Practices
    The Commission requests comment regarding how the availability of 
the proposed exception would be expected to affect prospective booking 
practices by industry participants. Commenters particularly are invited 
to address the following:
    a. Would the proposed exception incentivize U.S.-based dealing 
entities to bifurcate their dealing books by prospectively booking 
security-based swap transactions with non-U.S. counterparties into non-
U.S. affiliates, to avoid having that portion of their security-based 
swap businesses being subject to Title VII security-based swap dealer 
requirements? If so, what would be the expected extent of such booking 
practices? What would be the expected economic consequences? \188\
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    \188\ See part VII.A.7, infra (addressing potential number of 
U.S.-based dealing entities that may seek to use the exception in 
connection with those types of prospective booking practices).
---------------------------------------------------------------------------

    b. Are the proposed conditions appropriate to help guard against 
any negative consequences (e.g., loss of business conduct protection, 
potential market fragmentation) that potentially would result from 
U.S.-based dealing entities using such booking practices to limit the 
application of Title VII to their dealing businesses involving non-U.S. 
counterparties? If not, what additional conditions--e.g., restrictions 
on the availability of the exception when the counterparty relationship 
is managed by U.S. personnel rather than by non-U.S. personnel of the 
booking entity--would be appropriate to help prevent those negative 
consequences?
    c. Would a differently tailored application of the counting 
requirements to cross-border transactions be appropriate, instead of or 
in addition to the alternatives being proposed in this release? For 
example,

[[Page 24232]]

should a non-U.S. person engaged in dealing activity be permitted to 
exclude certain transactions with a U.S.-person dealer from its de 
minimis calculations, subject to certain conditions? If so, please 
describe the conditions that should apply to such an exception. 
Alternatively, should a non-U.S. person engaged in dealing activity be 
permitted to avail itself of such an exception only to the extent that 
it is located in a ``listed jurisdiction''?
10. Availability to Registered Security-Based Swap Dealers
    As proposed, the exception not only would affect the set of dealing 
transactions that non-registered persons would consider when evaluating 
whether they fall under the security-based swap dealer de minimis 
thresholds, but also would be relevant to non-U.S. persons that are 
registered as security-based swap dealers but that wish to withdraw 
their registration based on their dealing activity over the prior 12 
months.\189\ Should the exception be made unavailable to registered 
security-based swap dealers in connection with the potential withdrawal 
of registration? Commenters particularly are invited to address whether 
the rationale that underpins the proposed exception, related in large 
part to the consequences of actions that non-U.S. persons otherwise may 
take to avoid security-based swap dealer registration, would also be 
relevant in connection with non-U.S. persons that have registered with 
the Commission.
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    \189\ See note 101, supra (discussing application of proposal to 
registered security-based swap dealers).
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11. Other Uses of ``Arranged, Negotiated, or Executed'' Criteria
    Should similar exceptions also be made available in connection with 
other Title VII requirements that in part rely on ``arranged, 
negotiated, or executed'' test? Commenters particularly are invited to 
address the following:
a. Regulation SBSR
    Commenters are invited to address the application of ``arranged, 
negotiated, or executed'' criteria in connection with the cross-border 
application of the regulatory reporting and public dissemination 
requirements of Regulation SBSR. Regulation SBSR requires reporting and 
dissemination of transactions, connected with a non-U.S. person's 
security-based swap dealing activity, that have been ``arranged, 
negotiated, or executed'' by U.S. personnel of the non-U.S. person, or 
by U.S. personnel of the non-U.S. person's agent.\190\ In adopting 
Regulation SBSR, the Commission determined that requiring those 
transactions to be reported to a registered swap data repository would 
``enhance the Commission's ability to oversee relevant security-based 
swap activity within the United States as well as to evaluate market 
participants for compliance with specific Title VII requirements'' and 
monitor for fraudulent activity.\191\ The Commission further stated 
that public dissemination of those transactions would ``contribute to 
price discovery and price competition in the U.S. security-based swap 
market'' by providing a ``more comprehensive view of activity in the 
U.S. market.'' \192\
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    \190\ See Regulation SBSR Sections 908(a)(1)(v) and 908(b)(5); 
see also note 14, supra. Regulation SBSR was adopted pursuant to the 
regulatory reporting and public dissemination requirements set forth 
in Exchange Act Sections 13(m)(1)(C), 13(m)(1)(G) and 13A(a)(1).
    \191\ 81 FR at 53591.
    \192\ Id. at 53592.
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    The Commission is soliciting comment regarding those prior 
conclusions. Commenters particularly are invited to address whether the 
existing requirements related to the cross-border application of 
Regulation SBSR could cause non-U.S. person counterparties to avoid 
transacting with foreign dealers who use U.S. personnel to arrange, 
negotiate or execute security-based swap transactions.
    In this regard, commenters are invited to address whether there 
should be any modifications to existing provisions of Regulation SBSR 
(and, if so, which) regarding the application of regulatory reporting 
and public dissemination requirements to transactions arranged, 
negotiated or executed in the United States. Commenters also are 
invited to provide their views as to whether, for a security-based swap 
where a non-U.S. person engages in dealing activity but relies on an 
exception from having to count that transaction against its de minimis 
threshold, Regulation SBSR should be amended to re-assign the duty to 
report that transaction from the non-U.S. person engaged in dealing 
activity to its affiliated U.S. entity (be it a registered broker-
dealer or registered security-based swap dealer) that is conducting the 
arranging, negotiating or executing activity in the United States.
    Commenters further are invited to comment on possible alternative 
compliance mechanisms for the regulatory reporting and public 
dissemination requirements. For example, should Regulation SBSR be 
amended to conditionally permit the transaction to be reported pursuant 
to the requirements of the foreign jurisdiction which applies its 
reporting requirements to the affiliated non-U.S. person? If so, what 
conditions should apply to such an approach (e.g., limiting the 
approach to circumstances where that jurisdiction's reporting and 
dissemination requirements and practices meet certain criteria), and 
how should the Commission or market participants determine whether a 
jurisdiction meets any relevant criteria for this purpose? 
Alternatively, is the availability of substituted compliance in 
connection with the regulatory reporting and public dissemination 
requirements sufficient to address concerns regarding regulatory 
burdens potentially associated with this use of an ``arranged, 
negotiated, or executed'' test?\193\
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    \193\ Rule 908(c) of Regulation SBSR provides that the Title VII 
requirements for regulatory reporting and public dissemination of 
security-based swaps may be satisfied by compliance with the rules 
of a foreign jurisdiction that the Commission has found to have 
requirements that are comparable to those of Title VII.
---------------------------------------------------------------------------

b. Additional Title VII Requirements
    Commenters also are invited to address the use of an ``arranged, 
negotiated, or executed'' test in connection with the cross-border 
application of certain security-based swap dealer business conduct 
requirements.\194\ Here too, the Commission particularly requests 
comment regarding the potential relevance of Exchange Act Rule 15a-
6(a)(3), which in part conditionally allows unregistered foreign 
broker-dealers to communicate with U.S. institutional investors and 
major institutional investors without having to register with the 
Commission as broker-dealers.\195\ Would it be appropriate to provide 
conditional relief--akin to the proposed exception from the de minimis 
counting requirement or to the conditional broker-dealer registration 
exemption set forth in Rule 15a-6(a)(3)--from relevant business conduct 
requirements for registered foreign security-based swap dealers in 
security-based swap transactions with non-U.S. persons that the foreign 
dealers arrange, negotiate, or execute using personnel located within 
the United States? If so, should such relief be conditioned on the 
sophistication of the counterparty or its

[[Page 24233]]

advisor or compliance with any other conditions?
---------------------------------------------------------------------------

    \194\ Exchange Act Rule 3a71-3(c) states that a registered 
security-based swap dealer is not subject to certain business 
conduct requirements ``with respect to its foreign business.'' The 
``foreign business'' definition (Rule 3a71-3(a)(9)) references the 
definition of ``U.S. business,'' which in relevant part includes 
transactions of foreign security-based swap dealers that have been 
arranged, negotiated or executed by personnel located in a U.S. 
branch or office. See Exchange Act Rule 3a71-3(a)(8)(i)(B).
    \195\ See note 180, supra.
---------------------------------------------------------------------------

    In addition, commenters are invited to address the application of 
``arranged, negotiated, and executed'' criteria in connection with the 
exception from the de minimis counting requirement related to the 
dealing transactions of non-U.S. persons with counterparties that are 
foreign branches of registered security-based swap dealers.\196\ To the 
extent that this counting test raises operational or other challenges, 
are these addressed by the guidance that the Commission has proposed to 
provide in Part II above regarding the scope of activity that is 
encompassed by the terms ``arranging'' and ``negotiating'' under the 
test? Alternatively, should the definition of ``transaction conducted 
through a foreign branch'' in Exchange Act Rule 3a71-3(b)(1)(iii)(A) be 
modified to incorporate exceptions similar to those being proposed 
here? Would such an exception from that aspect of the de minimis 
counting requirement potentially lead to unlimited involvement of U.S.-
based personnel in such transactions? If so, how could the exception be 
tailored appropriately to avoid such a result?
---------------------------------------------------------------------------

    \196\ See note 81, supra.
---------------------------------------------------------------------------

    Commenters also are invited to address the use of those criteria in 
connection with rules regarding the cross-border application of 
requirements applicable to major security-based swap participants.\197\
---------------------------------------------------------------------------

    \197\ See note 82, supra.
---------------------------------------------------------------------------

12. Additional Issues
    The Commission further requests comment regarding any additional 
issues associated with the proposed exception, or regarding other 
potential approaches toward addressing issues associated with the 
``arranged, negotiated, or executed'' counting standard.

IV. Proposed Guidance and Amendments Related to the Certification and 
Opinion of Counsel Requirements

A. Discussion

    Since the adoption of the registration rules for SBS Entities,\198\ 
the Commission staff has received a number of questions regarding the 
scope of the certification and opinion of counsel requirement in 
Exchange Act Rule 15Fb2-4.\199\ Certain of these questions related to 
issues raised by foreign blocking laws, privacy laws, secrecy laws and 
other foreign legal barriers that may limit or prohibit firms from: (i) 
Providing books and records directly to the Commission; or (ii) 
submitting to an onsite inspection or examination by SEC staff.\200\ 
Specifically, firms have requested guidance as to whether the 
certification and opinion of counsel may take into account different 
approaches available under foreign blocking laws, privacy laws, secrecy 
laws or other legal barriers that may facilitate firms' ability to 
provide books and records to the Commission and submit to an 
examination or inspection by Commission staff in a manner consistent 
with a particular foreign legal requirement.
---------------------------------------------------------------------------

    \198\ See Registration Adopting Release.
    \199\ See, e.g., IIB/SIFMA 8/26/2016 Letter; see also IIB 11/16/
2016 Email.
    \200\ See, e.g., Registration Adopting Release, 80 FR at 48981.
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    The Commission recognizes that foreign blocking laws, privacy laws, 
secrecy laws or other legal barriers may vary in purpose and scope, 
among other aspects. For example, while some foreign laws may affect 
the ability of a Commission registrant to provide personal data to the 
Commission, other laws may prevent a Commission registrant from 
providing any information to the Commission or submitting to an onsite 
visit without specific authorization from the foreign government. In 
light of the differences among foreign laws, the Commission deems it 
appropriate to propose guidance to firms seeking clarification as to 
the Commission's requirements for the certification and opinion of 
counsel.
    For example, firms have asked whether the required certification 
and opinion of counsel may take into account the ability in some 
jurisdictions for a firm to provide the Commission with access to books 
and records if the firm obtains the consent of the person whose 
information is documented in the books and records.\201\ One commenter 
also asked that the Commission clarify that in certain circumstances 
the certification and opinion of counsel may be based on the assumption 
that the nonresident security-based swap dealer will provide the 
Commission access to its books and records through, and submit to on-
site inspection and examination with the approval of, the relevant 
foreign regulatory authority.\202\ In addition, firms have asked 
whether the certification and opinion of counsel should address only 
the laws of the ``home country'' of the nonresident SBS Entity (for 
example, its principal place of business or where it is incorporated), 
or if the Commission expects a nonresident SBS Entity to address 
applicable law in every jurisdiction in which the nonresident SBS 
Entity may conduct business or in which its counterparties, customers, 
or personnel may be located.\203\ Firms also have asked if the 
certification and opinion of counsel are meant to cover Commission 
inspection and examination of books and records in the jurisdictions in 
which they are located.\204\ The Commission has been considering these 
issues, and believes it would be appropriate to address certain of 
these concerns as described below.
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    \201\ See, e.g., Memorandum from the Division of Trading and 
Markets regarding a April 3, 2018 meeting with representatives of 
Societe Generale, April 3, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-3405388-162169.pdf; Memorandum from the 
Division of Trading and Markets regarding a April 4, 2018 meeting 
with representatives of Barclays, April 4, 2018, available at 
https://www.sec.gov/comments/s7-05-14/s70514-3405597-162172.pdf; 
Memorandum from the Division of Trading and Markets regarding a 
April 11, 2018 meeting with representatives of UBS, April 11, 2018, 
available at https://www.sec.gov/comments/s7-05-14/s70514-3461169-162204.pdf; Memorandum from the Division of Trading and Markets 
regarding a April 11, 2018 meeting with representatives of Morgan 
Stanley, April 11, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-4035093-168391.pdf; Memorandum from the Division of 
Trading and Markets regarding a April 30, 2018 meeting with 
representatives of UBS, April 30, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-4042895-168865.pdf; Memorandum 
from the Division of Trading and Markets regarding a June 4, 2018 
meeting with representatives of Credit Suisse, June 5, 2018, 
available at https://www.sec.gov/comments/s7-08-12/s70812-3785770-162712.pdf; and Memorandum from the Division of Trading and Markets 
regarding a July 18, 2018 meeting with representatives of BNP 
Paribas, July 24, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-4107153-170272.pdf.
    \202\ IIB/SIFMA 8/26/2016 Letter, at page 3.
    \203\ See note 201, supra.
    \204\ See IIB/SIFMA 8/26/2016 Letter, at page 2.
---------------------------------------------------------------------------

    The guidance set forth below regarding the certification and 
opinion of counsel requirements would also be relevant to Exchange Act 
Rule 3a71-6, which allows SBS Entities to comply with certain 
requirements under Section 15F of the Exchange Act through substituted 
compliance.\205\ In particular, Paragraph (c)(2)(ii) of Rule 3a71-6 
provides that substituted compliance applications by parties or groups 
of parties--other than foreign financial regulatory authorities--must 
include the certification and opinion of counsel associated with the 
SBS Entity registration requirements as if such party were subject to 
that requirement at the time of the request.\206\ Recognizing

[[Page 24234]]

the expected time necessary for the Commission to consider substituted 
compliance applications it receives, the Commission welcomes submission 
of such applications with respect to any of its final rules for which 
substituted compliance is potentially available. Consistent with this 
position, the Commission wishes to clarify that, during the pendency of 
this proposal, the Commission will consider all such applications, 
including those submitted without a certification or opinion of 
counsel, by parties or groups of parties who are not foreign regulatory 
authorities.\207\ This clarification, however, does not mean that the 
Commission would grant any application for substituted compliance 
submitted by such parties or groups of parties until the required 
certification and opinion are filed.
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    \205\ Exchange Act Rule 3a71-6.
    \206\ Separately, paragraph (c)(3) of Rule 3a71-6 provides that 
foreign financial regulatory authorities may make substituted 
compliance requests only if they provide adequate assurances that no 
law or policy of any relevant foreign jurisdiction would impede the 
ability of any entity that is directly supervised by the foreign 
financial regulatory authority and that may register with the 
Commission as an SBS Entity to provide the Commission with prompt 
access to the entity's books or records, or to submit to on-site 
inspection and examination by the Commission. The above guidance 
regarding the application of the certification and opinion of 
counsel requirements also will inform the Commission's assessment of 
whether a foreign financial regulatory authority has provided such 
adequate assurances as part of a substituted compliance application.
    \207\ The Commission does not require that applications 
submitted by foreign regulatory authorities be accompanied by a 
certification or opinion of counsel. Exchange Act Rule 3a71-6(c)(3).
---------------------------------------------------------------------------

1. Foreign Laws Covered by the Certification and Opinion of Counsel 
Requirements
    The Commission understands that the security-based swap market and 
the security-based swap dealing activities of many firms are global in 
scope. In this market, the business of any single security-based swap 
dealer, whether a resident or nonresident of the United States, may 
span multiple jurisdictions. The certification and opinion of counsel 
requirement was intended to address distinct challenges that may arise 
with respect to a nonresident SBS Entity that, unlike a resident SBS 
Entity, is incorporated or has its principal place of business outside 
the United States. In particular, the requirement is intended to 
provide a level of assurance regarding the Commission's access to 
relevant books and records of a nonresident SBS Entity and its ability 
to inspect and examine them.
    Given the underlying objective of this requirement, the Commission 
is proposing to provide guidance that it would be appropriate for the 
certification and opinion of counsel to address only the laws of the 
jurisdiction or jurisdictions in which the nonresident SBS Entity 
maintains the covered books and records as described in part IV.B.2, 
infra (``covered books and records''). Under this proposed guidance, 
the certification and opinion of counsel would not need to cover other 
jurisdictions where customers or counterparties of the nonresident SBS 
Entity may be located or where the nonresident SBS Entity may have 
additional offices or conduct business. For example, if the nonresident 
SBS Entity maintains the covered books and records in the jurisdiction 
of its incorporation or principal place of business, the certification 
and opinion of counsel would address that jurisdiction. If the 
nonresident SBS Entity maintains its covered books and records in a 
jurisdiction or jurisdictions other than where it is incorporated or 
has its principal place of business (e.g., in a jurisdiction where it 
maintains a foreign branch office that conducts its security-based swap 
activities), the certification and opinion of counsel should address 
such jurisdiction or jurisdictions, provided that the laws of the 
jurisdiction where the firm is incorporated or jurisdictions in which 
it is doing business would not prevent the Commission from having 
direct access to the covered books and records, nor prevent the 
nonresident SBS Entity from promptly furnishing them to the Commission 
or opening them up to the Commission for an on-site inspection or 
examination.
    The Commission preliminarily believes that a certification and 
opinion of counsel from a nonresident SBS Entity that covers the laws 
of the jurisdiction or jurisdictions where its covered books and 
records are located, rather than the laws of all possible jurisdictions 
where its customers or counterparties may be located or where it may 
conduct business, would provide the Commission with a sufficient level 
of assurance that it will be able to access the relevant books and 
records of nonresident SBS Entities registered with it.
2. Clarification on Covered Books and Records
    One commenter requested that the Commission clarify that the scope 
of the certification and opinion of counsel requirement applies only to 
``U.S.-Related Records'' (as defined by the commenter) and, for a 
nonresident security-based swap dealer subject to the Commission's 
capital and margin regulations, ``Financial Records'' (as defined by 
the commenter).\208\ The commenter also would limit the scope of the 
certification and opinion of counsel to on-site inspection and 
examination of books and records located at a U.S. branch or office of 
a nonresident security-based swap dealer or U.S. Related Records 
located at the nonresident security-based swap dealer's ``U.S.-Related 
Foreign Locations'' (as defined by the commenter).\209\ Among other 
things, the commenter states that this would ensure Commission access 
to the types of records most relevant to the Commission's oversight 
responsibilities.\210\
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    \208\ See IIB/SIFMA 8/26/2016 Letter (proposing that ``U.S.-
Related Records'' be defined to mean ``books and records relating to 
security-based swap transactions entered into by the non-resident 
security-based swap dealer after the effective date of its 
registration (i) with U.S. persons, (ii) for which the nonresident 
[security-based swap dealer's] obligations are guaranteed by a U.S. 
person or (iii) arranged, negotiated or executed on behalf of the 
non-resident [security-based swap dealer] by personnel located in a 
U.S. branch or office of the non-resident [security-based swap 
dealer] or its agent. Where [a security-based swap dealer] maintains 
such books and records in multiple locations, the [security-based 
swap dealer] would designate the location that is relevant for 
purposes of the certification and opinion;'' and ``Financial 
Records'' would be defined to mean ``books and records necessary for 
the Commission to assess the non-resident [security-based swap 
dealer's] compliance with Commission capital and margin 
requirements.'').
    \209\ See id. (proposing that ``U.S.-Related Foreign Locations'' 
be defined to mean ``non-U.S. branches and offices of the 
nonresident [security-based swap dealer] from which personnel 
arrange, negotiate or execute [security-based swap] transactions on 
behalf of the non-resident [security-based swap dealer] (i) with a 
counterparty that is a U.S. person or (ii) for which the non-
resident [security-based swap dealer's] obligations are guaranteed 
by a U.S. person'').
    \210\ Id.
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    The Commission believes that it would be beneficial to propose 
guidance on this issue to help firms that must comply with these rules 
understand the scope of what is covered by the certification and 
opinion of counsel. The Commission is proposing to provide guidance 
that the certification and opinion of counsel need only address: (1) 
Books and records that relate to the ``U.S. business'' of the 
nonresident SBS Entity (as defined in 17 CFR 240.3a71-3(a)(8)); and (2) 
financial records necessary for the Commission to assess the compliance 
of the nonresident SBS Entity with capital and margin requirements 
under the Exchange Act and rules promulgated by the Commission 
thereunder, if these capital and margin requirements apply to the 
nonresident SBS Entity.
    While this formulation is similar to that suggested by commenters, 
the Commission preliminarily believes it would be appropriate to tie 
the scope of the books and records covered by the certification and 
opinion of counsel to a firm's ``U.S. business'' and relevant

[[Page 24235]]

financial records, rather than to propose a new ``U.S. Related 
Records'' definition as suggested by the commenter. As the Commission 
explained in adopting a definition of ``U.S business'' in the 
Commission's Title VII cross-border rules, the intent is to encompass 
those transactions that appear particularly likely to affect the 
integrity of the security-based swap market in the United States and 
the U.S. financial markets more generally or that raise concerns about 
the protection of participants in those markets.\211\ Accordingly, this 
approach would more effectively tailor the certification and opinion of 
counsel to the types of records the Commission would need to review, 
inspect or examine to determine compliance with applicable substantive 
requirements.
---------------------------------------------------------------------------

    \211\ See Business Conduct Adopting Release, 81 FR at 30065.
---------------------------------------------------------------------------

    Even with such clarification, however, the Commission emphasizes 
that, as proposed, Exchange Act Rule 18a-6(g) would require that a 
nonresident SBS Entity must provide the Commission with direct access 
to its books and records--i.e., the nonresident SBS Entity must 
``furnish promptly to a representative of the Commission legible, true, 
complete, and current copies'' of its books and records, and permit on-
site inspections and examinations of its books and records.\212\ The 
guidance above with respect to the certification and opinion of counsel 
would not reduce or eliminate these obligations as they are independent 
of, and in addition to, the certification and opinion of counsel 
requirement.
---------------------------------------------------------------------------

    \212\ See proposed Rule 18a-6(g) and discussion in Recordkeeping 
and Reporting Proposing Release, 79 FR at 25220.
---------------------------------------------------------------------------

3. Consents
    Firms have noted that certain jurisdictions' laws may permit a firm 
to promptly provide books and records directly to the Commission and to 
submit to an on-site inspection and examination at the offices of the 
firm located in the jurisdiction if the firm obtains consent from the 
natural person whose information is documented in the books and 
records.\213\ In this case, the Commission preliminarily believes that 
it would be appropriate for the firm's certification and opinion of 
counsel to be predicated, as necessary, on the nonresident SBS Entity 
obtaining the prior consent of the persons whose information is or will 
be included in the books and records to allow the firm to promptly 
provide the Commission with direct access to its books and records and 
to submit to on-site inspection and examination.\214\
---------------------------------------------------------------------------

    \213\ See note 201, supra.
    \214\ The firm's opinion of counsel should, as necessary, 
address all relevant considerations involving consent.
---------------------------------------------------------------------------

    As noted above, the security-based swap recordkeeping rules as 
proposed would require that a nonresident SBS Entity must provide the 
Commission with direct access to its books and records. This 
requirement exists independently of, and in addition to, the 
certification and opinion of counsel requirements. Thus if a 
nonresident SBS Entity intends to rely on consents, it should obtain 
such consents prior to registering as an SBS Entity so that it will be 
able to provide Commission staff with direct access to its books and 
records while it is conditionally registered. The certification and 
opinion of counsel, if provided at a later date, would be able to rely 
on those consents in effect when they are provided. In addition, if a 
nonresident SBS Entity certifies that it may rely on consents, it 
should continue to obtain consents on an ongoing basis so that it can 
continue to provide the Commission with access to books and records. In 
determining whether to rely on consent, a nonresident SBS Entity may 
also seek to explore whether an alternative basis exists under the 
foreign privacy laws that would permit the nonresident SBS Entity to 
collect and maintain the necessary data and to provide the information 
directly to Commission staff.
    Before registering with the Commission, a nonresident SBS Entity 
should assess whether it would be able to meet these obligations and 
take appropriate steps to ensure that, if registered, it will be able 
to comply with them. For example, if a nonresident SBS Entity is unable 
to obtain consent from a customer or counterparty whose information 
will be documented in a book or record subject to these obligations or 
if a customer or counterparty provides a consent then later withdraws 
that consent, the firm may need to cease conducting a security-based 
swap business with that person in order to comply with the Exchange Act 
and the Commission's rules thereunder or to seek an alternative basis 
exists under the foreign laws that allows the nonresident SBS Entity to 
satisfy its obligations under the federal securities laws.
4. Open Contracts
    Some firms have asked for clarification that the certification and 
opinion of counsel would not need to cover books and records related to 
open contracts,\215\ and expressed concern it could require firms to 
re-negotiate those contracts.\216\
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    \215\ For purposes of this guidance, the term ``open contracts'' 
would include any contract entered into by the SBS Entity prior to 
the date on which an SBS Entity submits an application for 
registration which the SBS Entity continues to hold on its books and 
records and under which it may have continuing obligations.
    \216\ See notes 201 and 209, supra.
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    The Commission preliminarily believes that the certification and 
opinion of counsel need not address the books and records of security-
based swap transactions that were entered into prior to the date on 
which a nonresident SBS Entity submits an application for registration 
pursuant to Section 15F(b) of the Exchange Act and the rules 
thereunder.\217\ The Commission recognizes that there may be practical 
impediments to obtaining consents with respect to open contracts 
because, for example, the counterparty is in a dispute with the 
nonresident SBS Entity. Further, there may be questions of fairness to 
the extent that any potential application to open contracts could 
undermine the expectations that the parties had when entering into the 
security-based swap.
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    \217\ Cf. Business Conduct Adopting Release, 81 FR at 29969, in 
which the Commission stated that the business conduct rules 
generally would not apply to any security-based swap entered into 
prior to the compliance date of the rules, and generally would apply 
to any security-based swap entered into after the compliance date of 
these rules, including a new security-based swap that results from 
an amendment or modification to a pre-existing security-based swap.
---------------------------------------------------------------------------

5. Commission Arrangements With Foreign Regulatory Authorities or 
Approvals, Authorizations, Waivers or Consents
    Firms have noted that while local laws or rules in some foreign 
jurisdictions may prevent a nonresident SBS Entity from providing the 
Commission with direct access to its books and records or submitting to 
onsite inspections or examinations, in some cases the relevant foreign 
regulatory authority may have entered into a Memorandum of 
Understanding (``MOU'') or other arrangement with the Commission to 
facilitate Commission access to records of nonresident SBS Entities 
located in the jurisdiction.\218\ Firms have requested guidance 
regarding whether the certification and opinion of counsel submitted by 
a nonresident SBS Entity can rely on MOUs or other arrangements foreign 
regulatory authorities may have entered into with the Commission to 
facilitate

[[Page 24236]]

Commission access to records at the request of the SBS Entity.
---------------------------------------------------------------------------

    \218\ See note 201, supra.
---------------------------------------------------------------------------

    The Commission preliminarily believes that it would be appropriate, 
under the factors discussed below, for the certification and opinion of 
counsel to take into account whether the relevant regulatory authority 
in the foreign jurisdiction has: (i) Issued an approval, authorization, 
waiver or consent; or (ii) entered into an MOU or other arrangement 
with the Commission facilitating direct access to the books and records 
of SBS Entities located in that jurisdiction, including the 
Commission's inspections and examinations at the offices of SBS 
Entities located in that jurisdiction, provided that such an approval, 
authorization, waiver, consent or MOU or arrangement is necessary to 
address legal barriers to the Commission's direct access to books and 
records of the SBS Entities in that jurisdiction.
    However, consideration of such an approval or MOU would need to be 
consistent with the registration program that has been adopted by the 
Commission. Specifically, the Commission stated when adopting the 
registration rules that it must be able to access directly the books 
and records of nonresident SBS Entities and inspect and examine them 
without going through a third party, such as a foreign regulatory 
authority, to effectively fulfill its regulatory oversight 
responsibilities. Thus, it would not be appropriate to take into 
account such an approval or MOU if it contemplates that the nonresident 
SBS Entity must provide the covered books and records, as described in 
Section IV.A.2. above, to the foreign regulatory authority in order for 
that body then to provide them to the Commission.
    At the same time, it would be appropriate to take into 
consideration an MOU or other arrangement that provided for 
consultation or cooperation with a foreign regulatory authority in 
conducting onsite inspections and examinations at the foreign offices 
of nonresident SBS Entities. The Commission also believes it would be 
consistent with its registration program if the Commission is required 
to notify the relevant foreign regulatory authority, as described in 
Section IV.A.1. above, of its intent to conduct an onsite inspection or 
examination and staff from the foreign regulatory authority can 
accompany the Commission when it visits the foreign office of the 
nonresident SBS Entity. However, it would not be consistent with the 
Commission's interpretation of the requirement to rely on an MOU or 
other arrangement if, whether by the terms of any relevant agreement, 
under provisions of local law, or in light of prior practice, 
consultation or cooperation with the foreign regulatory authority 
restricts the Commission's ability to conduct timely inspections and 
examinations of the books and records in the foreign office of the 
nonresident SBS Entity.
6. Proposed Amendment to Rule 15Fb2-1 Related to the Timing of 
Certification and Opinion of Counsel Required by Rule 15Fb2-4(c)(1)
    As described in the SBS Entity Registration Adopting Release, an 
SBS Entity is conditionally registered with the Commission when it 
submits a complete application on Form SBSE, SBSE-A, or SBSE-BD, as 
appropriate, and the Form SBSE-C senior officer certifications.\219\ To 
be complete, a Form SBSE, SBSE-A, or SBSE-BD would generally need to 
include the Schedule F certification and opinion of counsel. The 
Commission acknowledges that a nonresident SBS Entity may be unable to 
provide the certification or opinion of counsel required under Rule 
15Fb2-4(c)(1) by the time the entity will be required to register 
because efforts to address legal barriers to the Commission's direct 
access to books and records are still ongoing. For example, the 
relevant regulatory authority in the foreign jurisdiction where the 
nonresident SBS entity maintains its covered books and records may be 
in the process of (i) issuing an approval, authorization, waiver or 
consent or (ii) negotiating an MOU or other arrangement with the 
Commission. The Commission recognizes that absent relief such 
nonresident SBS Entities will bear the cost of lowering or 
restructuring the market activity below the annual thresholds that 
would trigger registration requirements, an outcome that could create 
significant market disruptions.\220\
---------------------------------------------------------------------------

    \219\ 17 CFR 240.15Fb2-1(d).
    \220\ See Registration Adopting Release, 80 FR at 49008.
---------------------------------------------------------------------------

    Accordingly, the Commission is proposing to amend Exchange Act Rule 
15Fb2-1 to provide additional time for a nonresident SBS Entity to 
submit the certification and opinion of counsel required under Rule 
15Fb2-4(c)(1). Specifically, the Commission is proposing new paragraphs 
(d)(2) and (e)(2) of Exchange Act Rule 15Fb2-1. Proposed paragraph 
(d)(2) would provide that a nonresident applicant that is unable to 
provide the certification and opinion of counsel required under Rule 
15Fb2-4(c)(1) shall be conditionally registered for up to 24 months 
after the compliance date for Rule 15Fb2-1 if the applicant submits a 
Form SBSE-C and a Form SBSE, SBSE-A or SBSE-BD, as appropriate, that is 
complete in all respects but for the failure to provide the 
certification and the opinion of counsel required by Rule 15Fb2-
4(c)(1). Proposed paragraph (e)(2) would provide that if a nonresident 
SBS Entity became conditionally registered in reliance on paragraph 
(d)(2), the firm would remain conditionally registered until the 
Commission acts to grant or deny ongoing registration, and that if the 
nonresident SBS Entity fails to provide the certification and opinion 
of counsel within 24 months of the compliance date for Rule 15Fb2-1, 
the Commission may institute proceedings to determine whether ongoing 
registration should be denied. As indicated in the Registration 
Adopting Release,\221\ once an SBS Entity is conditionally registered, 
all of the Commission's rules applicable to registered SBS Entities 
will apply to the entity and it must comply with them. Further, this 
proposed relief would be available only for the duration of the 24 
month period immediately following the compliance date for Rule 15Fb2-
1.
---------------------------------------------------------------------------

    \221\ Registration Adopting Release, 80 FR at 48970 n.52.
---------------------------------------------------------------------------

B. Solicitation of Comments Regarding Proposed Guidance and Amendments 
Related to the Certification and Opinion of Counsel Requirements

    The Commission requests comment on all aspects of the proposed 
guidance and amendments.

1. Foreign Laws Covered by the Certification and Opinion of Counsel 
Requirements

    a. If the scope of the certification and opinion of counsel 
requirements are limited as described above, are there situations in 
which a nonresident SBS Entity will nonetheless be unable to provide 
the required certification and opinion of counsel because the laws 
of another jurisdiction prevent a nonresident SBS Entity from 
providing the Commission with access to its books and records? If 
so, in what jurisdictions?
    b. Are there any other types of foreign laws, regulations or 
requirements that may prevent a nonresident SBS Entity from 
providing Commission staff with access to its books and records or 
impede the staff's ability to conduct onsite examinations?
    c. Could there be a situation where the laws of a jurisdiction 
where customers, counterparties or employees of a nonresident SBS 
Entity may be located, but where the nonresident SBS Entity 
maintains no books and records, could impose a legal barrier that 
would limit or prohibit the nonresident SBS Entity's ability to 
either collect personal or transactional data regarding a customer, 
counterparty or employee or provide that

[[Page 24237]]

data directly to the Commission? If so, should a nonresident SBS 
Entity that has customers, counterparties or employees in such a 
jurisdiction also be required to include consideration of that 
jurisdiction or jurisdictions as part of its certification and 
opinion of counsel? In this situation, how could the Commission 
staff obtain adequate assurance that it would be able to access a 
nonresident registrant's books and records?

2. Clarification on Covered Books and Records

    a. Does the proposed guidance adequately address the concerns 
raised by commenters? Would the guidance appropriately define the 
scope of the books and records covered by the certification and 
opinion of counsel to ``U.S. business'' as defined in Rule 3a71-
3(a)(8) and the financial records of certain registrants? Should 
additional books and records be included? If so, which books and 
records and why? Alternatively, are there other books and records 
that should be excluded from the scope of what is covered by the 
certification and opinion of counsel? If so, which books and records 
and why?
    b. Rather than using the U.S. business definition, should the 
Commission instead follow the approach suggested by the commenter--
to establish definitions for ``U.S. Related Records,'' ``Financial 
Records,'' and ``U.S. Related Foreign Locations'' solely for the 
purpose of scoping records in or out of the requirements? If so why?
    c. Would the proposed approach limit the Commission's ability to 
assess how a nonresident SBS Entity may address conflicts between 
the trades with a U.S. counterparty and other trades outside the 
U.S.? If so, are there any other methods the Commission could use to 
investigate those conflicts?

3. Consents

    a. Does the proposed guidance adequately address the concerns 
raised by commenters?
    b. Is reliance on consents a viable option to address not only 
data privacy, but secrecy and blocking laws or regulations?
    c. Should the Commission allow nonresident SBS Entities to rely 
on consents if the person providing consent is able to later 
withdraw that consent? How do nonresident SBS Entities plan to 
address situations where a customer, counterparty, employee or other 
person later withdraws consent?
    d. If a nonresident SBS Entity intends both to rely on consents 
as a basis for its certification and opinion of counsel and to delay 
the submission of the certification and opinion of counsel in 
reliance on proposed Rule 15Fb2-1(d)(2), should the nonresident SBS 
Entity be allowed to operate without consents in place until it 
provides the certification and opinion of counsel rather than when 
it is conditionally registered as contemplated by the proposed 
amendments?
    e. If relying on consents as a basis for the certification and 
opinion of counsel, should a nonresident SBS Entity be required to 
notify the Commission, as well as make and keep current books and 
records to reflect these consents and whether a consent is later 
withdrawn?
    f. Should nonresident SBS Entities obtain consents every time 
they enter into a new transaction with a counterparty or should a 
global consent in a master agreement be sufficient?
    g. Is the consent mechanism a feasible long term solution for 
providing the Commission with direct access to an SBS Entity's books 
and records and submitting to onsite inspections and examinations? 
If not, what are the legal and regulatory challenges for a 
nonresident SBS Entity seeking to rely on consents? For example, how 
would nonresident SBS Entities subject to the European Union General 
Data Protection Regulation (``GDPR'') plan to address guidance that, 
due to the nature of the relationship between employees and 
employers, employee consent may not be considered to be freely given 
under the GDPR,\222\ and that consent might prove not to be a 
feasible long term solution for transfers to third countries under 
the GDPR? \223\ Are there any other factors that should be 
considered such as, for example, the jurisdiction and the type of 
law at issue (e.g., privacy, secrecy, blocking statute, etc.)?
---------------------------------------------------------------------------

    \222\ See Article 29 Working Party, Guidelines on consent under 
Regulation 2016/679 (adopted Apr. 10, 2018), available at https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=623051.
    \223\ See European Data Protection Board, Guidelines 2/2018 on 
derogations of Article 49 under Regulation 2016/679 (adopted May 25, 
2018), available at https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_2_2018_derogations_en.pdf.
---------------------------------------------------------------------------

4. Open Contracts

    a. Would the guidance adequately address the concerns raised by 
commenters? Is the date on which a nonresident SBS Entity submits a 
registration the appropriate point from which to apply the 
certification and opinion of counsel requirement?
    b. Should nonresident SBS Entities nonetheless be required to 
provide Commission staff with aggregated information, such as the 
number of open contracts, the total dollar value of open contracts, 
or percentage of open contracts for which it may have or lack 
consent to provide information to regulators?
    c. Should the proposed guidance also exclude contracts open on 
the date a nonresident SBS Entity submits a registration where there 
is no renegotiation of terms and the position is simply serviced 
until it rolls off the firm's books and records? If so, why? Would 
that impair the Commission's ability to adequately regulate 
nonresident SBS Entities?

5. Reliance on Commission Arrangements With Foreign Regulatory 
Authorities

    a. Does the guidance adequately address the concerns that have 
been raised in this regard? If not, why not and what additional 
guidance is needed?
    b. Should arrangements with foreign regulatory authorities 
contain any special language or terms to assure that Commission 
staff has direct access to a nonresident SBS Entity's books and 
records and the ability to conduct onsite inspections or 
examinations?
    c. Are there situations in which multiple foreign regulatory 
authorities would enter into an MOU or other arrangement?

6. Proposed Amendment to Rule 15Fb2-1 Related to the Timing of 
Certification and Opinion of Counsel Required by Rule 15Fb2-4(c)(1)

    a. Does 24 months from the compliance date for Rule 15Fb2-1 
provide an appropriate time period to allow a nonresident SBS Entity 
to submit the required certification and opinion of counsel? Should 
the Commission shorten the time period? Should the Commission extend 
the time period? Should the Commission provide for a process by 
which an applicant can submit a request for an extension of time? 
For example, where good cause is shown, should the Commission or its 
staff be able to extend the time period upon request by a 
nonresident firm?
    b. How would the 24 month period facilitate the ability of a 
nonresident SBS entity to submit the required certification and 
opinion of counsel when foreign blocking laws, privacy laws, secrecy 
laws and other foreign legal barriers exist in the jurisdiction 
where the offices of the nonresident SBS Entity are located? Are 
there circumstances other than those contemplated in Section IV 
under which a nonresident SBS Entity would be unable to submit the 
required certification and opinion of counsel? If so, would the 24 
month period address such circumstances?
    c. Proposed Rule 15Fb2-1(e)(2) provides that if an nonresident 
applicant is unable to provide the certification and opinion of 
counsel as required by Rule 15Fb2-4(c)(1) within the 24 month time 
period, the Commission may institute proceedings to determine 
whether ongoing registration should be denied. Should the Commission 
adopt a different approach in cases where a nonresident application 
fails to provide the certification or opinion of counsel within the 
24 month time period? If so, please explain why and provide a 
description of the approach. For example, should the Commission 
consider the application incomplete if the nonresident applicant is 
unable to provide the required certification and opinion of counsel 
within the 24 month time period, thereby automatically terminating 
the applicant's conditional registration and eliminating the need 
for the Commission to institute proceedings to determine whether the 
application should be denied? In the alternative, should the 
Commission require nonresident applicants to certify that if they do 
not provide the certification and opinion of counsel within the 24 
month period, they will withdraw from registration and cease any 
security-based swap dealing activities that otherwise would require 
registration within a specified period after the 24 month period 
expires? \224\ If so, what period would be reasonable?
---------------------------------------------------------------------------

    \224\ In other contexts, the Commission has permitted the 
registration of a person that was not immediately eligible to 
register as an investment adviser, subject to an undertaking that 
the person will withdraw from registration if it did not meet the 
registration requirements within a specified period of time. See 
Rule 203A-2(c) under the Investment Advisers Act of 1940.
---------------------------------------------------------------------------

    d. Should SBS Entities that conditionally register without 
signing the Schedule F certification and providing an opinion of 
counsel be required to disclose to counterparties the risk that the 
Commission

[[Page 24238]]

may institute proceedings to deny registration if the firm is, after 
24 months, still unable to file with the Commission a complete 
Schedule F certification and opinion of counsel? Should the 
Commission impose any additional requirements on nonresident SBS 
Entities that are conditionally registered pursuant to proposed Rule 
15Fb2-1(d)(2)? If so, which requirements and why?
    e. Alternatively, should the Commission eliminate the 
certification and opinion of counsel requirements and instead rely 
solely on the underlying obligations of the registered nonresident 
SBS Entity to comply with all applicable regulatory requirements? 
Why or why not?
    f. As an another alternative, should the Commission publish a 
list of nonresident SBS Entities registered with it on the 
Commission's public website and note the conditional registration 
status of any nonresident SBS Entities that have not yet provided a 
Schedule F certification and opinion of counsel? Why or why not? 
Would provision of this type of information be beneficial to 
counterparties?

V. Proposed Amendment to Commission Rule of Practice 194

A. Overview of Proposed Rule of Practice 194(c)(2)

    In furtherance of the goal of more closely harmonizing Commission 
rules with the approach followed under the CFTC regime, and based on 
renewed concerns raised by certain market participants,\225\ the 
Commission is proposing new paragraph (c)(2) of Rule of Practice 
194.\226\ Proposed paragraph (c)(2) would provide an exclusion from the 
statutory disqualification prohibition in Section 15F(b)(6) of the 
Exchange Act for an SBS Entity with respect to an associated person who 
is a natural person who (i) is not a U.S. person \227\ and (ii) does 
not effect and is not involved in effecting security-based swap 
transactions with or for counterparties that are U.S. persons, other 
than a security-based swap transaction conducted through a foreign 
branch \228\ of a counterparty that is a U.S. person.\229\
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    \225\ See note 243, supra.
    \226\ As discussed above, Exchange Act Section 15F(b)(6) 
provides that the Commission may establish exceptions to its 
statutory prohibition by ``rule, regulation, or order.'' 15 U.S.C. 
78o-10(b)(6). In addition, Exchange Act Section 15F(b)(4) provides 
the Commission with authority (other than certain inapplicable 
exceptions specified in Exchange Act Section 15F(b)(4)(d) and (e)) 
to ``prescribe rules applicable to security-based swap dealers and 
major security-based swap participants.'' 15 U.S.C. 78o-10(b)(4).
    \227\ The term ``U.S. Person'' is defined in Exchange Act Rule 
3a71-3(a)(4). See 17 CFR 240.3a71-3(a)(4).
    \228\ The term ``transaction conducted through a foreign 
branch'' is defined in Exchange Act Rule 3a71-3(a)(3). See 17 CFR 
240.3a71-3(a)(3).
    \229\ This relief, however, is not relevant to an associated 
person effecting or involved in effecting security-based swaps, to 
the extent that such person's ``functions are solely clerical or 
ministerial,'' given that such persons are excluded from the 
definition of associated person under to 15 U.S.C. 78c(a)(70)(B) 
and, therefore, not subject to the prohibition in Section 15F(b)(6).
---------------------------------------------------------------------------

    However, an SBS Entity would not be able to avail itself of this 
exclusion if the associated person of that SBS Entity is currently 
subject to any order described in subparagraphs (A) and (B) of Section 
3(a)(39) of the Exchange Act, with the limitation that an order by a 
foreign financial regulatory authority \230\ as provided in 
subparagraphs (B)(i) and (B)(iii) of Section 3(a)(39) shall only apply 
to orders by a foreign financial regulatory authority in the 
jurisdiction where the associated person is employed or located. By way 
of example, the limitation concerning an associated person of an SBS 
Entity who is currently subject to an order described in subparagraphs 
(A) and (B) of Exchange Act Section 3(a)(39) would include, among other 
things, situations where the associated person of an SBS Entity has 
been barred or suspended from being associated with a member of an SRO 
\231\ or is subject to an order by the Commission barring or suspending 
such person from being associated with certain regulated entities, 
including, but not limited to, SBS Entities and broker-dealers.\232\ As 
discussed further below, this provision is meant to address situations 
where the Commission, CFTC, a SRO (e.g., FINRA), a registered futures 
association (the National Futures Association, ``NFA''),\233\ or a 
foreign financial regulatory authority has affirmatively made a 
determination to not allow an associated person to participate in, for 
example, the security-based swap market, some other sector of the U.S. 
securities markets (e.g., as broker-dealers or as investment advisers), 
some other sector of the U.S. financial market (e.g., the U.S. swap 
market) or some sector of the foreign financial markets.
---------------------------------------------------------------------------

    \230\ See 15 U.S.C. 78c(a)(52) (defining the term ``foreign 
financial regulatory authority'' to include, among other regulatory 
authorities, ``foreign securities authorities'' as defined in 
Exchange Act Section 3(a)(50) (15 U.S.C. 78c(a)(50)).
    \231\ See 15 U.S.C. 78c(a)(26) (defining the term ``self-
regulatory organization'').
    \232\ See, e.g., 15 U.S.C. 78c(a)(39)(A) and (B)(i)(II).
    \233\ See 7 U.S.C. 21.
---------------------------------------------------------------------------

    Additionally, the exclusion would only apply to associated persons 
who are natural persons, as the Commission has separately within Rule 
of Practice 194 provided an exclusion for an SBS Entity from the 
prohibition in Exchange Act Section 15F(b)(6) with respect to all 
associated person entities--regardless of whether the associated person 
entity is located within or outside of the U.S.\234\
---------------------------------------------------------------------------

    \234\ See 17 CFR 240.194(c); see also part I.C.3, supra 
(discussing the Rule of Practice 194 Adopting Release, 84 FR at 
4906).
---------------------------------------------------------------------------

B. Comments Received Requesting That the Commission Provide Relief

    Both before and after the Commission adopted its SBS Entity 
registration rules, commenters requested that the Commission provide an 
exclusion from or, in the alternative, narrow the scope of, the 
prohibition in Exchange Act Section 15F(b)(6) with respect to 
associated persons of SBS Entities who are not U.S. persons and who do 
not interact with U.S. persons.\235\
---------------------------------------------------------------------------

    \235\ See, e.g., Letter from IIB, dated Aug. 21, 2013 (``IIB 8/
21/13 Letter'') at 20, available at https://www.sec.gov/comments/s7-02-13/s70213-46.pdf; see also IIB/SIFMA 6/21/18 Letter at 2, 4, 
available at https://www.sec.gov/comments/s7-05-14/s70514-3938974-167037.pdf; IIB/SIFMA 8/26/16 Letter, at 3-5; Letter from SIFMA, 
dated Dec. 16, 2011 (``SIFMA 12/16/11 Letter'') at 8, available at 
https://www.sec.gov/comments/s7-40-11/s74011-4.pdf.
---------------------------------------------------------------------------

    For example, in connection with the Commission proposing 
registration requirements for SBS Entities, a commenter stated that it 
was concerned that the statutory disqualification requirements in 
Exchange Act Section 15F(b)(6) would apply to a foreign registered SBS 
Entity on an entity-level, as opposed to as a transaction-level 
requirement, without regard to the identity of the counterparty and, 
therefore, would be applicable to all associated persons of the foreign 
registered SBS Entity that effect or are involved in effecting 
security-based swap transactions.\236\ The commenter noted that this 
would result in situations where non-U.S. associated persons of non-
U.S. SBS Entities who do not interact with U.S. customers would be 
subject to the statutory disqualification requirements in Exchange Act 
Rule 15Fb6-2(b) and, as a result, non-U.S. associated persons of non-
U.S. SBS Entities would be required to submit to U.S. background checks 
for statutory disqualification purposes.\237\ In support of the 
commenter's request that the Commission re-categorize the statutory 
disqualification requirements as a transaction-level requirement, the 
commenter noted that the Commission's current approach diverges from 
that adopted by the CFTC,\238\ as well as the Commission's treatment of 
``foreign

[[Page 24239]]

associated persons'' of foreign broker-dealers.\239\ The commenter also 
stated that a transaction-level approach would preserve the 
Commission's resources to better serve customer protection interests 
within the United States, and that the Commission's interests in 
protecting foreign customers are limited, while ``foreign regulators 
have a strong interest in regulating such activity.'' \240\ Finally, 
the commenter opined that limiting background checks to personnel 
interacting with U.S. persons would also help eliminate potential 
conflicts with local privacy laws, which in some cases may prohibit 
background checks for foreign employees.\241\
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    \236\ See Registration Adopting Release, 80 FR at 48977 nn.109-
11 (citing IIB 8/21/13 Letter at 20).
    \237\ See IIB 8/21/13 Letter at 20.
    \238\ See id. at 20 (noting that the CFTC does not apply its 
statutory disqualification requirements to associated persons of its 
registrants who engage in activity outside the United States and 
limit such activity to customers located outside the United States).
    \239\ See id. (citing Rule 15a-6(b)(2) and stating that the 
Commission, in that rule, limited the definition of ``foreign 
associated person'' to those associated persons of a foreign broker 
or dealer who participate in the solicitation of certain U.S. 
investors).
    \240\ Id.
    \241\ See id.
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    In response to the commenter, the Commission explained that the 
requirements in Rule 15Fb6-2(b) regarding questionnaires or 
applications and background checks are important elements of each SBS 
Entity's determination with respect to whether its associated persons 
that effect or are involved in effecting security-based swap 
transactions are subject to statutory disqualifications. The Commission 
also stated that it was not convinced, at the time, of the need or 
basis to provide an exclusion for SBS Entities from the statutory 
disqualification requirements with respect to certain of their 
associated persons, and made a determination to treat the statutory 
disqualification requirements as entity-level requirements, as opposed 
to a transaction-level requirement, applicable to all associated 
persons of the registered foreign SBS Entity that effect or are 
involved in effecting security-based swap transactions.\242\
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    \242\ See Registration Adopting Release, 80 FR at 48978.
---------------------------------------------------------------------------

    More recently, market participants have raised the same concerns 
expressed in the comment letters outlined above.\243\ For example, 
commenters have argued that, because most of the CFTC's rules have been 
in effect for several years, greater harmonization would ``help 
facilitate prompt implementation of the Commission's Title VII regime 
with minimal disruption to the SBS market and robust protections and 
lower costs for investors and other end-users.'' \244\ Relatedly, the 
Commission also received comments requesting that the Commission 
harmonize aspects of its Rule 15Fb6-2(b) with the CFTC's regulations or 
allow for substituted compliance.\245\ As discussed above, Rule 15Fb6-
2(b) requires an SBS Entity to obtain a questionnaire or application 
for employment--documents that are required under paragraphs (a)(10) 
and (b)(8) of proposed Rule 18a-5--which would serve as a basis for a 
background check to verify that an associated person is not subject to 
statutory disqualification. However, as discussed below in Section 
VI.A., the proposed modification to proposed Rule 18a-5 would provide 
that a stand-alone or bank SBS Entity is not required to make and keep 
current a questionnaire or application for employment executed by an 
associated person if the SBS Entity is excluded from the statutory 
disqualification prohibition in Exchange Act Section 15F(b)(6) with 
respect to such associated person (e.g., the exclusion from the 
statutory disqualification prohibition in Section 15F(b)(6) provided by 
proposed Commission Rule of Practice 194(c)(2)).
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    \243\ See, e.g., note 28, supra.
    \244\ IIB/SIFMA 6/21/18 Letter at 1.
    \245\ See IIB/SIFMA 8/26/16 Letter, at 3-5 (requesting that the 
Commission exclude associated persons employed or located in a non-
U.S. branch or office of an SBS Entity or an affiliate from the 
requirement in Rule 15Fb6-2(b) to prepare and maintain a 
questionnaire or application for employment executed by such 
associated person where certain conditions are met, including that 
the associated person does not effect and is not involved in 
effecting security-based swaps with U.S. counterparties on behalf of 
the SBS Entity); see also IIB/SIFMA 6/21/18 Letter, at 2.
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C. Proposed Rule of Practice 194(c)(2)

    Proposed Rule of Practice 194(c)(2) would more closely harmonize 
the Commission's rules with the CFTC's approach to statutory 
disqualification as it applies to the activities of non-domestic 
associated persons of CFTC registered Swap Entities. Under CEA Section 
4s(b)(6), which parallels Exchange Act Section 15F(b)(6), and CFTC 
staff's related guidance \246\ Swap Entities are not required to comply 
with the prohibition in CFTC Regulation 23.22(b) with respect to non-
domestic associated persons who deal only with non-domestic swap 
counterparties.\247\ Absent such relief, a Swap Entity would be subject 
to the prohibition in CFTC Regulation 23.22(b) even with respect to an 
associated person who engages in activity from a location outside the 
United States and even when such person limits their activity to 
counterparties located outside the United States.\248\
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    \246\ Under the CFTC's and the NFA's current process for 
granting relief from CEA Section 4s(b)(6)--which is available 
through no-action relief granted by CFTC staff with respect to 
persons that are not exempt from Section 4s(b)(6) pursuant to CFTC 
Regulation 23.22(b)--a swap entity may make an application to the 
NFA, the sole registered futures association, to permit an 
associated person of a Swap Entity subject to a statutory 
disqualification to effect or be involved in effecting swaps on 
behalf of the swap entity. See CFTC Letter No. 12-15, at 5-8 (Oct. 
11, 2012), available at https://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/12-15.pdf.
    \247\ See CFTC Letter No. 12-43 (Dec. 7, 2012) at 2-4, available 
at https://www.cftc.gov/sites/default/files/idc/groups/public/@lrlettergeneral/documents/letter/12-43.pdf. Specifically, CFTC 
staff stated in the letter, in relevant part, that staff's no-action 
position was limited to associated persons who effect or are 
involved in effecting swaps from a location outside of the United 
States, its territories or possessions, and limit such activities to 
counterparties located outside the United States, its territories or 
possessions. CFTC staff also noted that the no-action positions 
provided in this letter represent the positions of CFTC staff only, 
and do not necessarily represent the positions of the CFTC or its 
Commissioners.
    \248\ See id. at 4.
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    In proposing Rule of Practice 194(c)(2), the Commission is seeking 
to balance harmonization with the approach to regulating the activities 
that non-domestic associated persons of Swap Entities engage in under 
the CFTC regime and the attendant benefits and cost savings against the 
potential effect of certain risks, including financial, counterparty, 
compliance, and reputational risks of having statutorily disqualified 
associated persons effecting or involved in effecting security-based 
swap transactions for registered SBS Entities.
    Given the high degree of integration between the swap and security-
based swap markets,\249\ more closely aligning with the existing 
baseline for disqualification of swap dealer personnel could result in 
certain benefits, such as reducing regulatory complexity and lessening 
costs on market participants that are dually-registered as Swap 
Entities with the CFTC. For example, as a result of the proposed 
exclusion, SBS Entities dually-registered as Swap Entities with the 
CFTC could experience economies of scope in employing non-U.S. natural 
persons in their swap and security-based swap businesses.\250\ As 
discussed in the Rule of Practice 194 Adopting Release, the Commission 
estimates that approximately 46 out of 50 entities likely to register 
with the Commission as security-based swap dealers are already 
registered with the CFTC as

[[Page 24240]]

swap dealers.\251\ The proposed exclusion should, at least to some 
extent, reduce the likelihood of security-based swap dealers exiting 
the security-based swap business and, as a result, not registering with 
the Commission, which could affect competition in the provision of 
security-based swap dealing services.
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    \249\ See part VII.D, infra (noting that the swap and security-
based swap markets involve largely the same group of dealers and 
most of the same counterparties).
    \250\ See part VII.D.1, infra.
    \251\ See Rule of Practice 194 Adopting Release, 84 FR at 4935-
36 (discussing the economic baseline for Rule of Practice 194 and 
stating that approximately 46 out of 50 entities likely to register 
with the Commission as security-based swap dealers are already 
registered with the CFTC as swap dealers).
---------------------------------------------------------------------------

    Absent the proposed exclusion, SBS Entities would be unable to have 
an associated person subject to a statutory disqualification, who would 
be permitted to effect certain swap transactions under the CFTC's 
approach, also effect security-based swap transactions, unless the SBS 
Entity obtained relief from the Commission under Rule of Practice 194. 
This difference between the CFTC's approach and the Commission's rules 
would result in costs related to replacing or reassigning statutorily 
disqualified associated non-U.S. persons or applying to the Commission 
for relief. In addition, this difference could disrupt existing 
counterparty relationships across closely linked swap and security-
based swap markets. However, under the proposed exclusion, non-U.S. 
person counterparties of SBS Entities would be able to continue 
interacting with the same non-U.S. associated persons of the same SBS 
Entities across interconnected markets without delays related to 
Commission review under Rule of Practice 194. As noted above, this may 
result in lower transaction costs for SBS Entities that, in turn, may 
flow to both their U.S. and non-U.S. person counterparties.
    This proposal is consistent with exceptions the Commission provided 
in its business conduct rules for SBS Entities.\252\ The Commission 
also notes that, in adopting the definition of ``U.S. business''--which 
does not include transactions conducted through a foreign branch of a 
U.S. person \253\--the Commission stated that it is concerned 
principally with those transactions that appear particularly likely to 
affect the integrity of the security-based swap market in the United 
States and the U.S. financial markets more generally or that raise 
concerns about the protection of participants in those markets.\254\ 
The Commission explained that this exception reflected its view at the 
time that transactions between the foreign branch of a U.S. person and 
a non-U.S. person, in which the personnel arranging, negotiating, and 
executing the transaction are all located outside the United States, 
are less likely to affect the integrity of the U.S. market and reflects 
the Commission's consideration of the role of foreign regulators in 
non-U.S. markets.\255\ As the Commission has explained previously, the 
Dodd-Frank Act generally is concerned with the protection of U.S. 
markets and participants in those markets.\256\
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    \252\ Under Exchange Act Rule 3a71-3(c), a registered security-
based swap dealer, with respect to its ``foreign business'' (as that 
term is defined in Rule 3a71-3(a)(9)), shall not be subject to 
requirements of the Commission's business conduct rules--other than 
the supervision requirements pursuant to Exchange Act Section 
15F(h)(1)(B). See also Exchange Act Rule 3a67-10(d) (providing an 
analogous exclusion for registered U.S. major security-based swap 
participants).
    \253\ See 17 CFR 3a71-3(a)(8)(i)-(ii).
    \254\ See ``Business Conduct Standards for Security-Based Swap 
Dealers and Major Security-Based Swap Participants,'' Exchange Act 
Release No. 77617, (Apr. 14, 2016) 81 FR 29960, 30065 (May 13, 2016) 
(``Business Conduct Adopting Release'').
    \255\ See id. at 30065-66, n.1330 (citing the Cross-Border 
Proposing Release, 78 FR at 31017).
    \256\ See id. at 30065.
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    The proposed amendment would exclude, subject to certain 
limitations, SBS Entities from the statutory disqualification 
prohibition in Exchange Act Section 15F(b)(6) with respect to their 
associated natural persons who (i) are not U.S. persons and (ii) do not 
effect and are not involved in effecting security-based swap 
transactions with or for counterparties that are U.S. persons, other 
than a security-based swap transaction conducted through a foreign 
branch of a counterparty that is a U.S. person.
    As the Commission discussed in the Rule of Practice 194 Adopting 
Release,\257\ and in part VII.D.2 of the Economic Analysis below, the 
Commission appreciates that there is a dearth of research on the 
economic effect of statutory disqualification in derivatives markets, 
and the broader economic research on other markets is somewhat 
ambiguous. Nevertheless, some research suggests that increasing the 
ability of a statutorily disqualified person to continue to effect or 
be involved in effecting transactions on behalf of a registered SBS 
Entities may give rise to higher compliance and counterparty risks, may 
increase adverse selection costs,\258\ and may reduce competition among 
higher quality associated persons.\259\ On the other hand, some 
research suggests that greater flexibility in employing disqualified 
persons may actually increase competition among SBS Entities and their 
associated persons and benefit counterparties.\260\
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    \257\ See Rule of Practice 194 Adopting Release, 84 FR at 4941.
    \258\ See note 477, infra (noting that, with respect to a 
problem commonly known as adverse selection, when information about 
counterparty quality is scarce, market participants may be less 
willing to enter into transactions and the overall level of trading 
may fall).
    \259\ See part VII.D, infra.
    \260\ See id.; see also Jonathan Berk & Jules H. van Binsbergen, 
``Regulation of Charlatans in High-Skill Professions'' (Stanford 
University Graduate School of Business, Research Paper No. 17-43, 
2017), available at https://ssrn.com/abstract=2979134.
---------------------------------------------------------------------------

    The Commission also notes that the scope of conduct that gives rise 
to disqualification is broad and includes conduct that may not pose 
ongoing risks to counterparties.\261\ In addition, because the 
overwhelming majority of dealers and most counterparties transact 
across both swap and security-based swap markets, differential 
regulatory treatment of disqualification in swap and security-based 
swap markets may increase costs of intermediating transactions for some 
SBS Entities, which may be passed along to counterparties in the form 
of higher transaction costs, and may disrupt existing counterparty 
relationships.\262\
---------------------------------------------------------------------------

    \261\ See id.
    \262\ See id.
---------------------------------------------------------------------------

    The potential for increased risk may be mitigated by other factors. 
For example, the proposed exclusion would not limit or otherwise affect 
the Commission's existing authority to institute proceedings under 
Exchange Act Section 15F(l)(3) to censure, place limitations on the 
activities or functions of such person, or suspend for a period not 
exceeding 12 months, or bar such person from being associated with an 
SBS Entity.\263\ In addition, SBS Entities may choose not to use this 
proposed exclusion if the reputational and compliance risks associated 
with hiring and retaining statutorily disqualified persons may outweigh 
the costs SBS Entities may face if they decide to fire or replace 
statutorily disqualified persons who may otherwise have valuable 
skills, expertise, or counterparty relationships.\264\ Furthermore, the 
security-based swap market is largely an institutional one,\265\ and 
institutional counterparties (e.g., banks, pension funds and insurance 
companies) may be better able to mitigate or offset the potential for 
higher counterparty risks, including, by among

[[Page 24241]]

other things, requesting, as a business practice, representations that 
the associated persons they deal with have not triggered an event 
giving rise to statutory disqualification.
---------------------------------------------------------------------------

    \263\ See 15 U.S.C. 78o-10(l)(3); see also 15 U.S.C. 78u-3 
(authorizing cease-and-desist proceedings by the Commission). Accord 
Rule of Practice 194 Adopting Release, 84 FR at 4912 n.72 
(discussing the same statutory authority).
    \264\ See part VII.D.1 and VII.D.2, infra.
    \265\ See id. (citing the economic baseline in the Rule of 
Practice 194 Adopting Release, and noting that investment advisers, 
banks, pension funds, insurance companies, and ISDA-recognized 
dealers account for 99.8% of security-based swaps transaction 
activity).
---------------------------------------------------------------------------

    Accordingly, the Commission is proposing an exclusion from the 
statutory disqualification prohibition in Section 15F(b)(6) of the 
Exchange Act for SBS Entities with respect to an associated person who 
is a natural person who: (i) Is a not a U.S. person, and (ii) does not 
effect and is not involved in effecting security-based swap 
transactions with or for counterparties that are U.S. persons, other 
than a security-based swap transaction conducted through a foreign 
branch of a counterparty that is a U.S. person. The Commission also 
notes that, as discussed further below in Section VI.A., proposed 
modifications to proposed Rule 18a-5 would provide that a stand-alone 
or bank SBS Entity is not required to make and keep current a 
questionnaire or application for employment executed by an associated 
person if the SBS Entity is excluded from the statutory 
disqualification prohibition in Exchange Act Section 15F(b)(6) with 
respect to such associated person (e.g., the exclusion proposed in Rule 
of Practice 194(c)(2)).

D. Limitation on Proposed Rule of Practice 194(c)(2)

    The Commission also is proposing a limitation where an SBS Entity 
would not be able to avail itself of the exclusion from the prohibition 
in Exchange Act Section 15F(b)(6) as set forth in proposed paragraph 
(c)(2)--and would therefore need to use the process outlined in Rule of 
Practice 194 to seek relief from the statutory prohibition in Exchange 
Act Section 15F(b)(6).
    Under the proposed limitation, an SBS Entity would not be able to 
avail itself of the exclusion if the associated person of that SBS 
Entity is currently subject to an order that prohibits such person from 
participating in the U.S. financial market, including the U.S. 
securities or swap market, or foreign financial markets. More 
specifically, an SBS Entity would not be able to avail itself of the 
exclusion from the prohibition in Exchange Act Section 15F(b)(6) set 
forth in proposed paragraph (c)(2) with respect to an associated person 
if that associated person is currently subject to an order described in 
subparagraphs (A) and (B) of Section 3(a)(39) of the Exchange Act, with 
the limitation that an order by a foreign financial regulatory 
authority described in subparagraphs (B)(i) and (B)(iii) of Section 
3(a)(39) shall only apply to orders by a foreign financial regulatory 
authority in the jurisdiction where the associated person is employed 
or located. For example, this would include current orders, which are 
still in effect, from the Commission, the CFTC, an SRO (e.g., FINRA), a 
registered futures association (e.g., the NFA), or a foreign financial 
regulatory authority in the jurisdiction where the associated person is 
employed or located (e.g., the Financial Conduct Authority), that 
suspends or bars such person from being associated with any entity 
regulated by such authorities or otherwise places limitations on the 
activities or functions of the associated person.\266\ As another 
example, the exclusion from the prohibition in Exchange Act Section 
15F(b)(6) would also not be available in cases where the CFTC, an SRO, 
a registered futures association, or a foreign financial regulatory 
authority where the associated person is employed or located has, as 
applicable, issued an order that that denies, revokes, cancels, 
suspends the membership, association, registration or listing as a 
principal with respect to the associated person.\267\ In these 
circumstances, for example, the Commission, the CFTC, an SRO, a 
registered futures association or a foreign financial regulatory 
authority will have affirmatively made a determination to not allow an 
associated person to participate in the U.S. securities markets 
generally (e.g., as an associated person of a broker-dealer or 
investment adviser), some other sector of the U.S. financial market 
(e.g., the U.S. swap market), or some sector of the foreign financial 
markets. The Commission preliminarily believes that an SBS Entity 
should not be able to avail itself of the exclusion in proposed 
paragraph (c)(2) with respect to such associated persons given this 
prior determination by the relevant regulatory authorities.
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    \266\ By way of example, Exchange Act Section 15F(l)(3) provides 
the Commission with authority to institute proceedings under to 
censure, place limitations on the activities or functions of such 
person, or suspend for a period not exceeding 12 months, or bar such 
person from being associated with an SBS Entity. See 15 U.S.C. 78o-
10(l)(3).
    \267\ For example, under Exchange Act Section 15A(g)(2), 15 
U.S.C. 78o-3(g)(2), where it is necessary or appropriate in the 
public interest or for the protection of investors, the Commission 
may, by order, direct the SRO to deny membership to any registered 
broker or dealer, and bar from becoming associated with a member any 
person, who is subject to a statutory disqualification. Section 
17(h) of the CEA provides for the CFTC to review certain NFA 
decisions, including the NFA's disciplinary actions and member 
responsibility actions, as do the CFTC's Part 171 Rules, 17 CFR 
171.1-171.50.
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E. Solicitation of Comments Regarding Proposed Amendment to Commission 
Rule of Practice 194

    The Commission is requesting comment regarding all aspects of 
proposed paragraph (c)(2) of Rule of Practice 194, including any of the 
potential benefits, risks and costs outlined above or in the Economic 
Analysis below, as well as any concerns, including investor protection 
concerns. The Commission also seeks comment on the specific questions 
below. The Commission particularly requests comment from entities that 
intend to register as SBS Entities and that anticipate making an 
application under proposed Rule of Practice 194, as well as 
counterparties to such SBS Entities. This information will help inform 
the Commission's consideration of proposed paragraph (c)(2) of Rule of 
Practice 194.

    1. Are there other potential benefits to the exclusion provided 
in proposed Rule of Practice 194(c)(2) that are not outlined in the 
proposal? Are there other potential risks or costs to this proposed 
exclusion that are not outlined in the proposal? Does the exclusion 
provided in proposed Rule of Practice 194(c)(2) appropriately 
consider the potential benefits, risks and costs? In each instance, 
please explain why or why not.
    2. Proposed Rule of Practice 194(c)(2) would apply to all SBS 
Entities, whether U.S. persons or nonresident SBS Entities. Do 
commenters agree with this approach? Why or why not?
    3. Proposed Rule of Practice 194(c)(2) would apply to an 
associated person who is a natural person who (i) is not a U.S. 
person and (ii) does not effect and is not involved in effecting 
security-based swap transactions with or for counterparties that are 
U.S. persons, other than a security-based swap transaction conducted 
through a foreign branch of a counterparty that is a U.S. person. Do 
commenters agree with this approach? Why or why not?
    4. Under Proposed Rule of Practice 194(c)(2), an SBS Entity 
would not be able to avail itself of the exclusion if the following 
limitation applies: if the associated person of that SBS Entity is 
currently subject to an order described in subparagraphs (A) and (B) 
of Section 3(a)(39) of the Exchange Act, with the limitation that an 
order by a foreign financial regulatory authority described in 
subparagraphs (B)(i) or (B)(iii) of Section 3(a)(39) shall only 
apply to orders by a foreign financial regulatory authority in the 
jurisdiction where the associated person is employed or located. Do 
commenters agree with these limitations? Why or why not? Should the 
Commission require any additional conditions or limitations to the 
proposal? If so, please explain what additional conditions or 
limitations should apply.
    5. Are there any other categories of associated persons of an 
SBS Entity for which the Commission should provide an exclusion from 
the statutory prohibition in

[[Page 24242]]

Exchange Act Section 15F(b)(6)? If so, please specify the category 
and the reasons for requesting the Commission to exclude that 
category of associated person from the statutory prohibition.
    6. Would the exclusion from the statutory disqualification 
prohibition for certain foreign associated persons under the 
proposed approach differ materially from relief provided with 
respect to the corresponding prohibition under the CEA or rules and 
regulations thereunder? If so, please describe any differences, 
including any compliance or other challenges posed by such 
differences.
    7. As described above, in the Registration Adopting Release the 
Commission included an interpretation of the scope of the phrase 
``involved in effecting security-based swaps,'' as that phrase is 
used in Exchange Act Section 15F(b)(6).\268\ Based on this 
interpretation, are there additional categories of non-U.S. 
associated persons of an SBS Entity that should be excluded from the 
statutory disqualification prohibition in Section 15F(b)(6)? If so, 
please describe the functions carried out by such non-U.S. 
associated persons of an SBS Entity and why you believe those 
functions do not present the types of concerns addressed by the 
prohibition on associating with a statutorily disqualified person.
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    \268\ See Registration Adopting Release, 80 FR at 48974, 48976. 
Specifically, the Commission stated that the term ``involved in 
effecting security-based swaps'' generally means engaged in 
functions necessary to facilitate the SBS Entity's security-based 
swap business, including, but not limited to the following 
activities: (1) Drafting and negotiating master agreements and 
confirmations; (2) recommending security-based swap transactions to 
counterparties; (3) being involved in executing security-based swap 
transactions on a trading desk; (4) pricing security-based swap 
positions; (5) managing collateral for the SBS Entity; and (6) 
directly supervising persons engaged in the above-described 
activities. See id.
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VI. Proposed Modifications to Proposed Rule 18a-5

A. Proposed Rule

    The Commission proposed recordkeeping, reporting, and notification 
requirements applicable to SBS Entities, securities count requirements 
applicable to certain SBS Entities, and additional recordkeeping 
requirements applicable to broker-dealers to account for their 
security-based swap and swap activities.\269\ The proposed requirements 
were modeled on existing broker-dealer requirements.\270\ The 
Commission received a number of comments in response to these 
proposals.\271\ Separately, the Commission proposed rules governing the 
cross-border treatment of recordkeeping and reporting requirements with 
respect to SBS Entities.\272\ The Commission received comments to the 
cross-border proposals as well.\273\
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    \269\ See Recordkeeping and Reporting Proposing Release.
    \270\ See id. at 25196-97 (proving the rationale for modeling 
the proposed requirements on the relevant broker-dealer 
requirements).
    \271\ The comment letters are available at https://www.sec.gov/comments/s7-05-14/s70514.shtml.
    \272\ See Cross-Border Proposing Release.
    \273\ The comment letters are available at https://www.sec.gov/comments/s7-02-13/s70213.shtml.
---------------------------------------------------------------------------

    In the Recordkeeping and Reporting Proposing Release, the 
Commission proposed new Exchange Act Rule 18a-5 (patterned after 
Exchange Act Rule 17a-3--the recordkeeping rule for registered broker-
dealers), to establish recordkeeping standards for stand-alone and bank 
SBS Entities.\274\ As part of that rulemaking, the Commission proposed 
to require that a stand-alone or bank SBS Entity make and keep current 
a questionnaire or application for employment for each associated 
person who is a natural person and, in the case of bank SBS Entities, 
whose activities relate to the bank SBS Entity's business as an SBS 
Entity. The proposal required that the questionnaire or application for 
employment include an associated person's identifying information, 
business affiliations for the past ten years, relevant disciplinary 
history, relevant criminal record, and place of business, among other 
things.\275\ The Commission also proposed a definition of the term 
associated person that would include persons associated with an SBS 
Entity as defined under Section 3(a)(70) of the Exchange Act.\276\
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    \274\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25205.
    \275\ Paragraph (b)(8) of proposed Rule 18a-5.
    \276\ Paragraph (c) of proposed Rule 18a-5.
---------------------------------------------------------------------------

    One commenter requested that the Commission modify the proposed 
rule for foreign SBS Entities so that the questionnaire requirement 
would not apply to associated persons who effect or are involved in 
effecting security-based swap transactions with non-U.S. persons or 
foreign branches.\277\ In a subsequent letter, the commenter also 
requested that the proposal be modified to exclude from the 
questionnaire requirement an associated person employed or located in a 
non-U.S. branch, office, or affiliate of the firm in circumstances 
where: (1) Applicable non-U.S. law prohibits the firm from conducting 
background checks on the associated person and consent does not cure 
the prohibition or may not be a condition of employment; (2) the 
associated person is not subject to a statutory disqualification that 
the firm actually knows about; (3) the associated person does not 
effect and is not involved in effecting security-based swaps with U.S. 
counterparties on behalf of the firm; and (4) the associated person 
complies with applicable registration and licensing requirements in the 
jurisdiction(s) where he or she effects or is involved in effecting 
security-based swaps on behalf of the firm.\278\ This commenter also 
suggested that the proposal be modified to permit an SBS Entity to use 
alternative measures to confirm that a non-resident associated person 
is not subject to a statutory disqualification in situations where (1) 
using a standard U.S. questionnaire or application and background check 
would conflict with local law or the associated person does not 
interact with U.S. counterparties, and (2) the associated person 
complies with applicable registration or licensing requirements in the 
jurisdictions where the associated person is located.\279\
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    \277\ See SIFMA 9/5/2014 Letter.
    \278\ See IIB/SIFMA 8/26/2016 Letter.
    \279\ See IIB/SIFMA 6/21/2018 Letter.
---------------------------------------------------------------------------

    The Commission preliminarily believes that it is appropriate to 
provide flexibility with respect to the questionnaire requirement as 
applied to associated persons of both stand-alone and bank SBS 
Entities. Thus, the Commission is proposing to add two sets of 
exemptions under new paragraphs (a)(10) and (b)(8) to proposed Rule 
18a-5.
     The first exemption would provide that an SBS Entity need 
not make and keep current a questionnaire or application for employment 
with respect to any associated person if the SBS Entity is excluded 
from the prohibition in Exchange Act 15F(b)(6). This could include, for 
example, a situation in which the SBS Entity relies on the exclusion 
pursuant to proposed Rule of Practice 194(c)(2) as discussed above with 
respect to a non-U.S. associated person who does not effect and is not 
involved in effecting security-based swap transactions with or for a 
counterparty that is a U.S. person, other than a security-based swap 
transaction conducted through a foreign branch of a counterparty that 
is a U.S. person.
     The second exemption would provide that a questionnaire or 
application for employment executed by an associated person that is not 
a U.S. person need not include certain information if the receipt of 
that information, or the creation or maintenance of records reflecting 
that information, would result in a violation of applicable law in the 
jurisdiction in which the associated person is employed or located. In 
accordance with Rule 15Fb6-2, this exemption would be available with 
respect to non-U.S. associated persons that effect or are involved in 
effecting security-based transactions on behalf of the SBS Entity

[[Page 24243]]

with counterparties that are U.S. persons, as well as counterparties 
that are not.
1. Exemption Based on the Exclusion From the Prohibition Under Section 
15F(b)(6)
    The Commission is proposing to add new paragraphs (a)(10)(iii)(A) 
and (b)(8)(iii)(A) to proposed Rule 18a-5. As discussed above, the 
questionnaire requirement is intended to serve as a basis for a 
background check of the associated person to verify that the person is 
not subject to statutory disqualification under Section 15(b)(6), and 
so to support the certification required under Rule 15Fb6-2(b). These 
new paragraphs would provide that a stand-alone or bank SBS Entity is 
not required to make and keep current a questionnaire or application 
for employment with respect to an associated person if the stand-alone 
or bank SBS Entity is excluded from the prohibition in Section 
15F(b)(6) of the Exchange Act with respect to that associated person. 
The proposed modifications would complement the Commission's proposal, 
discussed above in Section V.C., to amend Rule of Practice 194 to 
provide an exclusion from the prohibition in Section 15F(b)(6) of the 
Exchange Act with respect to an associated person who is not a U.S. 
person and does not effect and is not involved in effecting security-
based swap transactions with or for counterparties that are U.S. 
persons, other than a security-based swap transaction conducted through 
a foreign branch of a counterparty that is a U.S. person, subject to 
certain conditions. Given that the proposed amendment to Rule of 
Practice 194 would allow an SBS Entity to exclude such associated 
persons when making the certification required by Rule 15Fb6-2(a), the 
Commission preliminarily believes that it is unnecessary to require 
that the SBS Entity make and keep current the questionnaire or 
application for employment contemplated by proposed paragraphs 18a-
5(a)(10)(i) and (b)(8)(i) with respect to those associated persons. 
Thus, under proposed Rule 18a-5 paragraphs (a)(10)(iii)(A) and 
(b)(8)(iii)(A), an SBS Entity generally would not be required to obtain 
the questionnaire or application for employment, otherwise required by 
proposed Rule 18a-5, with respect to any associated person who is not a 
U.S. person and who does not effect and is not involved in effecting 
security-based swap transactions with or for counterparties that are 
U.S. persons (other than a security-based swap transaction conducted 
through a foreign branch of a counterparty that is a U.S. person). More 
broadly, proposed new paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) 
would provide that an SBS Entity need not make and keep current a 
questionnaire or application for employment with respect to any 
associated person if the SBS Entity is excluded from the prohibition in 
Exchange Act 15F(b)(6) with respect to that associated person.
2. Exemption Based on Local Law
    The Commission also is proposing to add new paragraphs 
(a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a-5 to address 
situations where the law of a non-U.S. jurisdiction in which an 
associated person is employed or located may prohibit a stand-alone or 
bank SBS Entity from receiving, creating or maintaining a record of any 
of the information mandated by the questionnaire requirement. 
Specifically, the provisions would apply to an associated person who is 
not a U.S. person (as defined in Exchange Act Rule 3a71-
3(a)(4)(i)(A)),\280\ and would be available, in accordance with Rule 
15Fb6-2, to non-U.S. associated persons who effect or are involved in 
effecting security-based swaps transactions on behalf of an SBS Entity. 
Paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a-5 
would permit the exclusion of certain information mandated by the 
questionnaire requirement with respect to those associated persons if 
the receipt of that information, or the creation or maintenance of 
records reflecting such information, would result in a violation of 
applicable law in the jurisdiction in which the associated person is 
employed or located. Rather than fully excluding these associated 
persons from the questionnaire requirement, the provisions would 
provide that the stand-alone or bank SBS Entity need not record 
information mandated by the questionnaire requirement with respect to 
such associated persons if the receipt of that information, or the 
creation or maintenance of records reflecting such information, would 
result in a violation of applicable law in the jurisdiction in which 
the associated person is employed or located.\281\
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    \280\ Exchange Act Rule 3a71-3(a)(4)(i)(A) defines the term U.S. 
person to mean, with respect to natural persons, ``a natural person 
resident in the United States.''
    \281\ To the extent an nonresident SBS Entity is able to rely on 
either paragraph (a)(10)(iii)(A) or (b)(8)(iii)(A) with respect to a 
particular associated person, the firm would not need to also rely 
on the relief provided under (a)(10)(iii)(B) or (b)(8)(iii)(B) 
because the firm would be exempt from the questionnaire requirement 
with respect to that associated person.
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    This proposed change is designed to address commenters' concerns, 
and would provide SBS Entities with flexibility to not record 
information that might result in a violation of the law in the 
jurisdiction in which the associated person is employed or located, 
while continuing to require that they record information not restricted 
by the law in that jurisdiction. SBS Entities should still make and 
keep current information included in the questionnaire or application 
requirement that would not result in a violation of local law. In 
addition, if an SBS Entity would be able to obtain the information 
required by the questionnaire or application requirement if it obtained 
the consent of the associated person, the SBS Entity generally should 
try to obtain such consent before relying on new paragraphs 
(a)(10)(iii)(B) and (b)(8)(iii)(B).\282\
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    \282\ However, we recognize that there may be other issues 
raised with respect to consents. See part IV.A.2, supra.
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    As noted above, the questionnaire serves as a basis for a 
background check of the associated person to verify that the person is 
not subject to a statutory disqualification, which in turn supports the 
substantive prohibition in Section 15F(b)(6) of the Exchange Act and 
the related certification and background check requirements in Rule 
15Fb6-2.\283\ The Commission recognizes that there may be various means 
by which an SBS Entity could meet its obligations under Section 
15F(b)(6) of the Exchange Act and Rule 15Fb6-2. In the release adopting 
Rule 15Fb6-2, the Commission did not prescribe a particular means by 
which an SBS Entity must conduct the required background check.\284\ 
Rather, the Commission indicated that whatever steps are taken, the SBS 
Entity must have sufficient comfort to be able to comply with Section 
15F(b)(6) of the Exchange Act, and make the certification required by 
Rule 15Fb6-2.\285\ While an SBS Entity may be prohibited by local laws 
from obtaining certain information from an associated person, the SBS 
Entity may still be able to review public records (in foreign

[[Page 24244]]

jurisdictions or in the U.S.) or take other steps to help provide it 
with sufficient comfort to comply with Section 15F(b)(6). The 
Commission emphasizes that every SBS Entity must still comply with 
Section 15F(b)(6) of the Exchange Act and Rule 15Fb6-2 with respect to 
every associated person that is not subject to an exclusion from the 
statutory disqualification prohibition in Section 15F(b)(6) of the 
Exchange Act.
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    \283\ See 17 CFR 240.15Fb6-2(b); see also ``Registration of 
Security-Based Swap Dealers and Major Security-Based Swap 
Participants,'' 76 FR 65784 (Oct. 24, 2011), and the discussion 
regarding proposed Rule 15Fb6-1(b) at 65796. Proposed paragraph 
15Fb6-1(b) was not adopted because it was duplicative of the 
requirement in the Recordkeeping and Reporting Proposing release. 
Specifically, the Commission stated in the Registration Adopting 
Release, ``We do not believe that it would be efficient or necessary 
to repeat the same requirement for obtaining such questionnaires or 
applications in two separate Commission rules.'' See Registration 
Adopting Release, 80 FR at 48978.
    \284\ See id. at 48977.
    \285\ 17 CFR 240.15Fb6-2.
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B. Solicitation of Comments Regarding Proposed Modifications to 
Proposed Rule 18a-5

    The Commission requests comment on all aspects of these proposed 
modifications to proposed Rule 18a-5 and the guidance described above.

    1. Will the proposed modifications adequately address the 
concerns raised by the commenter? If not, why not, and what further 
modifications should the Commission make?
    2. Are there processes that foreign regulators use in lieu of 
employing an equivalent to the questionnaire requirement? If so, 
please cite examples.
    3. What information do entities that may seek to register as SBS 
Entities currently collect regarding their employees as part of 
their normal operations for various purposes (e.g., to pay 
employees, to pay taxes, to provide employees with other benefits, 
and to know what functions each employee performs and who supervises 
them)?
    4. Section 15F(b)(6) generally makes it illegal to permit a 
person who is subject to a statutory disqualification to effect or 
be involved in effecting security-based swaps on behalf of an SBS 
Entity if the SBS Entity ``knew, or in the exercise of reasonable 
care should have known'' of the statutory disqualification. Should 
the Commission provide guidance on the minimum level of due 
diligence in which an SBS Entity must engage to satisfy that 
``reasonable care'' standard in the event that the receipt of 
information, or the creation or maintenance of records reflecting 
information that would otherwise be required under Rule 18a-5, would 
result in a violation of applicable law in the jurisdiction in which 
the associated person is employed or located? If so, what guidance 
should the Commission provide, and why?
    5. Would the laws in jurisdictions other than the jurisdiction 
where an associated person is employed or located limit an SBS 
Entity's ability to make and retain information contained in the 
questionnaire or application for employment? If so, should proposed 
paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) be modified to instead 
focus on the laws of other jurisdictions? For instance, should these 
paragraphs instead focus on the law of the jurisdiction in which an 
SBS Entity is incorporated, or where the SBS Entity maintains its 
books and records? Why or why not? Or, should these proposed 
paragraphs be expanded to include other jurisdictions? Why or why 
not? Alternatively, should the rule be more narrowly focused on 
either where the associated person is ``employed'' or where the 
associated person is ``located?'' If so, why should one be used and 
the other excluded?
    6. What role would consents play in terms of nonresident SBS 
Entities' ability to meet the questionnaire requirement?
    7. Will the proposed addition of new paragraphs (a)(10)(iii)(A) 
and (b)(8)(iii)(A) adequately address the concerns raised by the 
commenter by providing, as proposed, that a stand-alone or bank SBS 
Entity is not required to make and keep current a questionnaire or 
application for employment executed by an associated person if they 
are excluded from the prohibition in Section 15F(b)(6) of the 
Exchange Act with respect to that associated person. If not, why 
not, and what further changes should the Commission make?

VII. Economic Analysis

    The Commission is mindful of the economic effects, including the 
costs and benefits, of the proposed amendments and guidance. Section 
3(f) of the Exchange Act provides that whenever the Commission is 
engaged in rulemaking pursuant to the Exchange Act and is required to 
consider or determine whether an action is necessary or appropriate in 
the public interest, the Commission shall also consider, in addition to 
the protection of investors, whether the action will promote 
efficiency, competition, and capital formation.\286\ In addition, 
Section 23(a)(2) of the Exchange Act requires the Commission, when 
making rules under the Exchange Act, to consider the impact such rules 
would have on competition.\287\ Exchange Act Section 23(a)(2) also 
provides that the Commission shall not adopt any rule which would 
impose a burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Exchange Act.
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    \286\ See 15 U.S.C. 78c(f).
    \287\ See 15 U.S.C. 78w(a)(2).
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    The analysis below addresses the likely economic effects of the 
proposed amendments and interpretive guidance, including the 
anticipated and estimated benefits and costs of the amendments and 
interpretive guidance and their likely effects on efficiency, 
competition, and capital formation. The Commission also discusses the 
potential economic effects of certain alternatives to the approaches 
taken in this proposal. Many of the benefits and costs discussed below 
are difficult to quantify. For example, the Commission cannot quantify 
the costs that potentially could result from competitive disparities 
associated with either proposed Alternative 1 or proposed Alternative 2 
to the exception to Rule 3a71-3 because these costs will depend, in 
part, on foreign regulatory requirements applicable to non-U.S. 
entities. This is because the extent to which a non-U.S. entity would 
need to develop or modify systems to allow it and its majority-owned 
affiliate to meet the conditions of the proposed exception likely 
depends on the extent to which the non-U.S. entity's local regulatory 
obligations differ from analogous conditions of the proposed exception. 
These potential costs could also depend on the business decisions of 
non-U.S. persons that may avail themselves of the proposed exception. 
Furthermore, the likelihood of a non-U.S. entity availing itself of the 
proposed exception under either alternative depends on whether the non-
U.S. entity is regulated in a listed jurisdiction, a determination 
that, in turn, depends on the foreign regulatory regime. Also, in 
connection with the proposed amendments to Commission Rule of Practice 
194, the Commission has no data or information allowing us to quantify 
the number of disqualified non-U.S. employees transacting with foreign 
counterparties or foreign branches of U.S. counterparties on behalf of 
U.S. and non-U.S. SBS Entities; the direct costs of relocating 
disqualified U.S. personnel outside of the United States for U.S. and 
non-U.S. SBS Entities; or reputational and compliance costs of U.S. and 
non-U.S. SBS Entities from continuing to transact through disqualified 
non-U.S. associated persons with foreign counterparties and foreign 
branches of U.S. counterparties. Therefore, while the Commission has 
attempted to quantify economic effects where possible, much of the 
discussion of economic effects is qualitative in nature.

[[Page 24245]]

A. Baseline

    To assess the economic effects of the proposed amendments, the 
Commission is using as the baseline the security-based swap market as 
it exists at the time of this release, including applicable rules the 
Commission has already adopted, but excluding rules the Commission has 
proposed but not yet finalized. The analysis includes the statutory 
provisions that currently govern the security-based swap market 
pursuant to the Dodd-Frank Act and rules adopted in the Intermediary 
Definitions Adopting Release, the Cross-Border Adopting Release, the 
SDR Rules and Core Principles Adopting Release,\288\ and the Rule of 
Practice 194 Adopting Release.\289\ Additionally, the baseline includes 
rules that have been adopted but for which compliance is not yet 
required, including the ANE Adopting Release, Registration Adopting 
Release,\290\ Regulation SBSR Amendments Adopting Release,\291\ and the 
Business Conduct Adopting Release,\292\ as these final rules--even if 
compliance is not yet required--are part of the existing regulatory 
landscape that market participants expect to govern their security-
based swap activity. The following sections discuss available data from 
the security-based swap market, security-based swap market participants 
and dealing structures, market-facing and non-market-facing activities 
of dealing entities, security-based swap market activity, global 
regulatory efforts, other markets and existing regulatory frameworks, 
current estimates of entities likely to incur assessment costs under 
rules adopted in the ANE Adopting Release, and an estimate of non-U.S. 
persons that could be affected by the proposed amendments and guidance.
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    \288\ See Security-Based Swap Data Repository Registration, 
Duties, and Core Principles, Exchange Act Release No. 74246 (Feb. 
11, 2015), 80 FR 14437 (Mar. 19, 2015) (``SDR Rules and Core 
Principles Adopting Release'').
    \289\ See Rule of Practice 194 Adopting Release, 84 FR at 4906.
    \290\ See Registration Adopting Release, 80 FR at 48997-49003.
    \291\ See Regulation SBSR-Reporting and Dissemination of 
Security-Based Swap Information, Exchange Act Release No. 78321 
(Jul.14, 2016), 81 FR 53546 (Aug. 12, 2016) (``Regulation SBSR 
Amendments Adopting Release'').
    \292\ See Business Conduct Adopting Release, 81 FR at 30105.
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1. Available Data From the Security-Based Swap Market
    The Commission's understanding of the market is informed, in part, 
by available data on security-based swap transactions, though the 
Commission acknowledges that limitations in the data limit the extent 
to which it is possible to quantitatively characterize the market.\293\ 
The Commission's analysis of the current state of the security-based 
swap market is based on data obtained from the DTCC Derivatives 
Repository Limited Trade Information Warehouse (``TIW''), especially 
data regarding the activity of market participants in the single-name 
CDS market during the period from 2008 to 2017. The details of this 
data set, including its limitations, have been discussed in a prior 
release.\294\
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    \293\ The Commission also relies on qualitative information 
regarding market structure and evolving market practices provided by 
commenters and knowledge and expertise of Commission staff.
    \294\ See Rule of Practice 194 Adopting Release, 84 FR at 4924.
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2. Security-Based Swap Market: Market Participants and Dealing 
Structures
a. Security-Based Swap Market Participants
    Activity in the security-based swap market is concentrated among a 
relatively small number of entities that act as dealers in this market. 
In addition to these entities, thousands of other participants appear 
as counterparties to security-based swap contracts in the TIW sample, 
and include, but are not limited to, investment companies, pension 
funds, private (hedge) funds, sovereign entities, and industrial 
companies. A discussion of security-based swap market participants can 
be found in a prior release.\295\
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    \295\ See Rule of Practice 194 Adopting Release, 84 FR at 4925.
---------------------------------------------------------------------------

b. Security-Based Swap Market Participant Domiciles
    As depicted in Figure 1 below, domiciles of new accounts 
participating in the security-based swap market have shifted over time. 
It is unclear whether these shifts represent changes in the types of 
participants active in this market, changes in reporting, or changes in 
transaction volumes in particular underliers. For example, the 
percentage of new entrants that are foreign accounts increased from 
24.4% in the first quarter of 2008 to 32.3% in the last quarter of 
2017, which may reflect an increase in participation by foreign account 
holders in the security-based swap market, though the total number of 
new entrants that are foreign accounts decreased from 112 in the first 
quarter of 2008 to 48 in the last quarter of 2017.\296\ Additionally, 
the percentage of the subset of new entrants that are foreign accounts 
managed by U.S. persons increased from 4.6% in the first quarter of 
2008 to 16.8% in the last quarter of 2017, and the absolute number rose 
from 21 to 25, which also may reflect more specifically the flexibility 
with which market participants can restructure their market 
participation in response to regulatory intervention, competitive 
pressures, and other stimuli.\297\ At the same time, apparent changes 
in the percentage of new accounts with foreign domiciles may also 
reflect improvements in reporting by market participants to TIW, an 
increase in the percentage of transactions between U.S. and non-U.S. 
counterparties, and/or increased transactions in single-name CDS on 
U.S. reference entities by foreign persons.\298\
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    \296\ These estimates were calculated by Commission staff using 
TIW data.
    \297\ See Charles Levinson, ``U.S. banks moved billions in 
trades beyond the CFTC's reach,'' Reuters, Aug. 21, 2015, available 
at https://www.reuters.com/article/2015/08/21/usa-banks-swaps-idUSL3N10S57R20150821. The estimates of 21 and 25 were calculated by 
Commission staff using TIW data.
    \298\ The available data do not include all security-based swap 
transactions but only transactions in single-name CDS that involve 
either (1) at least one account domiciled in the United States 
(regardless of the reference entity) or (2) single-name CDS on a 
U.S. reference entity (regardless of the U.S.-person status of the 
counterparties). See note 294, supra, for a discussion of the TIW 
data set.

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[[Page 24246]]

[GRAPHIC] [TIFF OMITTED] TP24MY19.000

c. Market Centers \299\
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    \299\ Following publication of the Warehouse Trust Guidance on 
CDS data access, DTCC-TIW surveyed market participants, asking for 
the physical address associated with each of their accounts (i.e., 
where the account is organized as a legal entity). This is 
designated the registered office location by the DTCC-TIW. When an 
account does not report a registered office location, the Commission 
has assumed that the settlement country reported by the investment 
adviser or parent entity to the fund or account is the place of 
domicile. This treatment assumes that the registered office location 
reflects the place of domicile for the fund or account.
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    A market participant's domicile, however, does not necessarily 
correspond to where it engages in security-based swap activity. In 
particular, non-U.S. persons engaged in security-based swap dealing 
activity operate in multiple market centers and carry out such activity 
with counterparties around the world.\300\ Many market participants 
that are engaged in dealing activity prefer to use traders and manage 
risk for security-based swaps in the jurisdiction where the underlier 
is traded. Thus, although a significant amount of the dealing activity 
in security-based swaps on U.S. reference entities involves non-U.S. 
dealers, the Commission understands that these dealers tend to carry 
out much of the security-based swap trading and related risk-management 
activities in these security-based swaps within the United States.\301\ 
Some dealers have explained that being able to centralize their 
trading, sales, risk management, and other activities related to U.S. 
reference entities in U.S. operations (even when the resulting 
transaction is booked in a foreign entity) improves the efficiency of 
their dealing business.
---------------------------------------------------------------------------

    \300\ See ANE Adopting Release, 81 FR at 8604 n.56.
    \301\ See id. note 58.
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    Consistent with these operational concerns and the global nature of 
the security-based swap market, the available data appear to confirm 
that participants in this market are in fact active in market centers 
around the globe. Although, as noted above, the available data do not 
permit us to identify the location of personnel in a transaction, TIW 
transaction records, supplemented with legal entity location data, 
indicate that firms that are likely to be security-based swap dealers 
operate out of branch locations in key market centers around the world, 
including New York, London, Paris, Zurich, Tokyo, Hong Kong, Chicago, 
Sydney, Toronto, Frankfurt, Singapore, and the Cayman Islands.\302\
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    \302\ TIW transaction records contain a proxy for the domicile 
of an entity, which may differ from branch locations, which are 
separately identified in the transaction records. The legal entity 
location data are from Avox.
---------------------------------------------------------------------------

    Given these market characteristics and practices, participants in 
the security-based swap market may bear the financial risk of a 
security-based swap transaction in a location different from the 
location where the transaction is arranged, negotiated, or executed, or 
where economic decisions are made by managers on behalf of beneficial 
owners. Market activity may also occur in a jurisdiction other than 
where the market participant or its counterparty books the transaction. 
Similarly, a participant in the security-based swap market may be 
exposed to counterparty risk from a counterparty located in a 
jurisdiction that is different from the market center or centers in 
which it participates.

[[Page 24247]]

d. Common Business Structures
    A non-U.S. person that engages in a global security-based swap 
dealing business in multiple market centers may choose to structure its 
dealing business in a number of different ways. This structure, 
including where it books the transactions that constitute that business 
and how it carries out market-facing activities that generate those 
transactions, reflects a range of business and regulatory 
considerations, which each non-U.S. person may weigh differently.
    A non-U.S. person may choose to book all of its security-based swap 
transactions, regardless of where the transaction originated, in a 
single, central booking entity. That entity generally retains the risk 
associated with that transaction, but it also may lay off that risk to 
another affiliate via a back-to-back transaction or an assignment of 
the security-based swap.\303\ Alternatively, a non-U.S. person may book 
security-based swaps arising from its dealing business in separate 
affiliates, which may be located in the jurisdiction where it 
originates the risk associated with the security-based swap, or, 
alternatively, the jurisdiction where it manages that risk. Some non-
U.S. persons may book transactions originating in a particular region 
to an affiliate established in a jurisdiction located in that 
region.\304\ As discussed earlier,\305\ a non-U.S. person may choose to 
book its security-based swap transactions in one jurisdiction in part 
to avoid triggering regulatory requirements associated with another 
jurisdiction.
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    \303\ See Exchange Act Release No. 74834 (Apr. 29, 2015), 80 FR 
27444, 27463 (May 13, 2015) (``U.S. Activity Proposing Release''); 
Cross-Border Proposing Release, 78 FR 30977-78.
    \304\ There is some indication that this booking structure is 
becoming increasingly common in the market. See, e.g., Catherine 
Contiguglia, ``Regional swaps booking replacing global hubs,'' 
Risk.net, Sep. 4, 2015, available at https://www.risk.net/risk-magazine/feature/2423975/regional-swaps-booking-replacing-global-hubs. Such a development may be reflected in the increasing 
percentage of new entrants that have a foreign domicile, as 
described above.
    \305\ See part III.B.4, supra.
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    Regardless of where a non-U.S. person determines to book its 
security-based swaps arising out of its dealing activity, it is likely 
to operate offices that perform sales or trading functions in one or 
more market centers in other jurisdictions. Maintaining sales and 
trading desks in global market centers permits the non-U.S. person to 
deal with counterparties in that jurisdiction or in a specific 
geographic region, or to ensure that it is able to provide liquidity to 
counterparties in other jurisdictions,\306\ for example, when a 
counterparty's home financial markets are closed. A non-U.S. person 
engaged in a security-based swap dealing business also may choose to 
manage its trading book in particular reference entities or securities 
primarily from a trading desk that can utilize local expertise in such 
products or that can gain access to better liquidity, which may permit 
it to more efficiently price such products or to otherwise compete more 
effectively in the security-based swap market. Some non-U.S. persons 
prefer to centralize risk management, pricing, and hedging for specific 
products with the personnel responsible for carrying out the trading of 
such products to mitigate operational risk associated with transactions 
in those products.
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    \306\ These offices may be branches or offices of the booking 
entity itself, or branches or offices of an affiliated agent, such 
as, in the United States, a registered broker-dealer.
---------------------------------------------------------------------------

    The non-U.S. person affiliate that books these transactions may 
carry out related market-facing activities, whether in its home 
jurisdiction or in a foreign jurisdiction, using either its own 
personnel or the personnel of an affiliated or unaffiliated agent. For 
example, the non-U.S. person may determine that another of its 
affiliates employs personnel who possess expertise in relevant products 
or who have established sales relationships with key counterparties in 
a foreign jurisdiction, making it more efficient to use the personnel 
of the affiliate to engage in security-based swap market-facing 
activity on its behalf in that jurisdiction. In these cases, the 
affiliate that books these transactions and its affiliated agent may 
operate as an integrated dealing business, each performing distinct 
core functions in carrying out that business.
    Alternatively, the non-U.S. person affiliate that books these 
transactions may, in some circumstances, determine to engage the 
services of an unaffiliated agent through which it can engage in 
market-facing activity. For example, a non-U.S. person may determine 
that using an interdealer broker may provide an efficient means of 
participating in the interdealer market in its own, or in another, 
jurisdiction, particularly if it is seeking to do so anonymously or to 
take a position in products that trade relatively infrequently.\307\ A 
non-U.S. person may also use unaffiliated agents that operate at its 
direction. Such an arrangement may be particularly valuable in enabling 
a non-U.S. person to service clients or access liquidity in 
jurisdictions in which it has no security-based swap operations of its 
own.
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    \307\ The Commission understands that interdealer brokers may 
provide voice or electronic trading services that, among other 
things, permit dealers to take positions or hedge risks in a manner 
that preserves their anonymity until the trade is executed. These 
interdealer brokers also may play a particularly important role in 
facilitating transactions in less-liquid security-based swaps.
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    The Commission understands that non-U.S. person affiliates (whether 
affiliated with U.S.-based non-U.S. persons or not) that are 
established in foreign jurisdictions may use any of these structures to 
engage in dealing activity in the United States, and that they may seek 
to engage in dealing activity in the United States to transact with 
both U.S.-person and non-U.S.-person counterparties. In transactions 
with non-U.S.-person counterparties, these foreign affiliates may 
affirmatively seek to engage in dealing activity in the United States 
because the sales personnel of the non-U.S.-person dealer (or of its 
agent) in the United States have existing relationships with 
counterparties in other locations (such as Canada or Latin America) or 
because the trading personnel of the non-U.S.-person dealer (or of its 
agent) in the United States have the expertise to manage the trading 
books for security-based swaps on U.S. reference securities or 
entities. The Commission understands that some of these foreign 
affiliates engage in dealing activity in the United States through 
their personnel (or personnel of their affiliates) in part to ensure 
that they are able to provide their own counterparties, or those of 
non-U.S. person affiliates in other jurisdictions, with access to 
liquidity (often in non-U.S. reference entities) during U.S. business 
hours, permitting them to meet client demand even when the home markets 
are closed. In some cases, such as when seeking to transact with other 
dealers through an interdealer broker, these foreign affiliates may 
act, in a dealing capacity, in the United States through an 
unaffiliated, third-party agent.
3. Market-Facing and Non-Market-Facing Activities
    As discussed above, the activities of a security-based swap dealer 
involve both market-facing activities and non-market-facing 
activities.\308\ Market-facing activities would include arranging, 
negotiating, or executing a security-based swap transaction. The terms 
``arrange'' and ``negotiate'' indicate market-facing activity of sales 
or trading personnel in connection with a particular transaction, 
including interactions with counterparties or their

[[Page 24248]]

agents. The term ``execute'' refers to the market-facing act that, in 
connection with a particular transaction, causes the person to become 
irrevocably bound under the security-based swap under applicable law. 
Non-market-facing activities include processing trades and other back-
office activities; designing security-based swaps without communicating 
with counterparties in connection with specific transactions; preparing 
underlying documentation, including negotiating master agreements (as 
opposed to negotiating with the counterparty the specific economic 
terms of a particular security-based swap transaction); and clerical 
and ministerial tasks such as entering executed transactions on a non-
U.S. person's books.
---------------------------------------------------------------------------

    \308\ See part I.A.2, supra.
---------------------------------------------------------------------------

4. Security-Based Swap Market Activity
    As already noted, firms that act as dealers play a central role in 
the security-based swap market. Based on an analysis of 2017 single-
name CDS data in TIW, accounts of those firms that are likely to exceed 
the security-based swap dealer de minimis thresholds and trigger 
registration requirements intermediated transactions with a gross 
notional amount of approximately $2.9 trillion, approximately 55% of 
which was intermediated by the top five dealer accounts.\309\
---------------------------------------------------------------------------

    \309\ The Commission staff analysis of TIW transaction records 
indicates that approximately 99% of single-name CDS price-forming 
transactions in 2017 involved an ISDA-recognized dealer.
---------------------------------------------------------------------------

    These dealers transact with hundreds or thousands of 
counterparties. Approximately 21% of accounts of firms expected to 
register as security-based dealers and observable in TIW have entered 
into security-based swaps with over 1,000 unique counterparty accounts 
as of year-end 2017.\310\ Another 25% of these accounts transacted with 
500 to 1,000 unique counterparty accounts; 29% transacted with 100 to 
500 unique accounts; and 25% of these accounts intermediated security-
based swaps with fewer than 100 unique counterparties in 2017. The 
median dealer account transacted with 495 unique accounts (with an 
average of approximately 570 unique accounts). Non-dealer 
counterparties transacted almost exclusively with these dealers. The 
median non-dealer counterparty transacted with two dealer accounts 
(with an average of approximately three dealer accounts) in 2017.
---------------------------------------------------------------------------

    \310\ Many dealer entities and financial groups transact through 
numerous accounts. Given that individual accounts may transact with 
hundreds of counterparties, the Commission may infer that entities 
and financial groups may transact with at least as many 
counterparties as the largest of their accounts.
---------------------------------------------------------------------------

    Figure 2 below describes the percentage of global, notional 
transaction volume in North American corporate single-name CDS reported 
to TIW between January 2008 and December 2017, separated by whether 
transactions are between two ISDA-recognized dealers (interdealer 
transactions) or whether a transaction has at least one non-dealer 
counterparty. Figure 2 also shows that the portion of the notional 
volume of North American corporate single-name CDS represented by 
interdealer transactions has remained fairly constant through 2015 
before falling from approximately 72% in 2015 to approximately 40% in 
2017. This fall corresponds to the availability of clearing to non-
dealers. Interdealer transactions continue to represent a significant 
fraction of trading activity, even as notional volume has declined over 
the past ten years,\311\ from more than $6 trillion in 2008 to less 
than $700 billion in 2017.\312\
---------------------------------------------------------------------------

    \311\ The start of this decline predates the enactment of the 
Dodd-Frank Act and the proposal of rules thereunder, which is 
important to note for the purpose of understanding the economic 
baseline for this rulemaking.
    \312\ This estimate is lower than the gross notional amount of 
$4.6 trillion noted in note 294 above as it includes only the subset 
of single-name CDS referencing North American corporate 
documentation.

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[[Page 24249]]

[GRAPHIC] [TIFF OMITTED] TP24MY19.001

    The high level of interdealer trading activity reflects the central 
position of a small number of dealers, each of which intermediates 
trades with many hundreds of counterparties. While the Commission is 
unable to quantify the current level of trading costs for single-name 
CDS, these dealers appear to enjoy market power as a result of their 
small number and the large proportion of order flow that they privately 
observe.
    Against this backdrop of declining North American corporate single-
name CDS activity, about half of the trading activity in North American 
corporate single-name CDS reflected in the set of data that the 
Commission analyzed was between counterparties domiciled in the United 
States and counterparties domiciled abroad, as shown in Figure 3 below. 
Using the self-reported registered office location of the TIW accounts 
as a proxy for domicile, the Commission estimates that only 12% of the 
global transaction volume by notional volume between 2008 and 2017 was 
between two U.S.-domiciled counterparties, compared to 49% entered into 
between one U.S.-domiciled counterparty and a foreign-domiciled 
counterparty and 39% entered into between two foreign-domiciled 
counterparties.\313\
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    \313\ For purposes of this discussion, the Commission has 
assumed that the registered office location reflects the place of 
domicile for the fund or account, but the Commission notes that this 
domicile does not necessarily correspond to the location of an 
entity's sales or trading desk. ANE Adopting Release, 81 FR at 8607 
n.83.
---------------------------------------------------------------------------

    If the Commission instead considers the number of cross-border 
transactions from the perspective of the domicile of the corporate 
group (e.g., by classifying a foreign bank branch or foreign subsidiary 
of a U.S. entity as domiciled in the United States), the percentages 
shift significantly. Under this approach, the fraction of transactions 
entered into between two U.S.-domiciled counterparties increases to 
34%, and to 51% for transactions entered into between a U.S.-domiciled 
counterparty and a foreign-domiciled counterparty. By contrast, the 
proportion of activity between two foreign-domiciled counterparties 
drops from 39% to 15%. This change in respective shares based on 
different classifications suggests that the activity of foreign 
subsidiaries of U.S. firms and foreign branches of U.S. banks accounts 
for a higher percentage of security-based swap activity than U.S. 
subsidiaries of foreign firms and U.S. branches of foreign banks. It 
also demonstrates that financial groups based in the United States are 
involved in an overwhelming majority (approximately 85%) of all 
reported transactions in North American corporate single-name CDS.
    Financial groups based in the United States are also involved in a 
majority of interdealer transactions in North American corporate 
single-name CDS. Of the 2017 transactions on North American corporate 
single-name CDS between two ISDA-recognized dealers and their branches 
or affiliates, 94% of transaction notional volume involved at least one 
account of an entity with a U.S. parent. The Commission notes, in 
addition, that a majority of North American corporate single-name CDS 
transactions occur in the interdealer market or between dealers and 
foreign non-dealers, with the remaining portion of the market 
consisting of transactions between dealers and U.S.-person non-dealers. 
Specifically, 60% of North American corporate single-name CDS

[[Page 24250]]

transactions involved either two ISDA-recognized dealers or an ISDA-
recognized dealer and a foreign non-dealer. Approximately 39% of such 
transactions involved an ISDA-recognized dealer and a U.S.-person non-
dealer.
[GRAPHIC] [TIFF OMITTED] TP24MY19.002

5. Global Regulatory Efforts
    In 2009, the G20 leaders--whose membership includes the United 
States, 18 other countries, and the European Union--addressed global 
improvements in the OTC derivatives market. They expressed their view 
on a variety of issues relating to OTC derivatives contracts. In 
subsequent summits, the G20 leaders have returned to OTC derivatives 
regulatory reform and encouraged international consultation in 
developing standards for these markets.\314\
---------------------------------------------------------------------------

    \314\ See, e.g., G20 Leaders' Final Declaration, November 2011, 
para. 24, available at https://g20.org/wp-content/uploads/2014/12/Declaration_eng_Cannes.pdf.
---------------------------------------------------------------------------

    Many security-based swap dealers likely will be subject to foreign 
regulation of their security-based swap activities that is similar to 
regulations that may apply to them pursuant to Title VII of the Dodd-
Frank Act, even if the relevant foreign jurisdictions do not classify 
certain market participants as ``dealers'' for regulatory purposes. 
Some of these regulations may duplicate, and in some cases conflict 
with, certain elements of the Title VII regulatory framework.
    Foreign legislative and regulatory efforts have generally focused 
on five areas: (1) Moving OTC derivatives onto organized trading 
platforms, (2) requiring central clearing of OTC derivatives, (3) 
requiring post-trade reporting of transaction data for regulatory 
purposes and public dissemination of anonymized versions of such data, 
(4) establishing or enhancing capital requirements for non-centrally 
cleared OTC derivatives transactions, and (5) establishing or enhancing 
margin and other risk mitigation requirements for non-centrally cleared 
OTC derivatives transactions. Foreign jurisdictions have been actively 
implementing regulations in connection with each of these categories of 
requirements. A number of major foreign jurisdictions have initiated 
the process of implementing margin and other risk mitigation 
requirements for non-centrally cleared OTC derivatives 
transactions.\315\
---------------------------------------------------------------------------

    \315\ In November 2018, the Financial Stability Board reported 
that 16 member jurisdictions participating in its thirteenth 
progress report on OTC derivatives market reforms had in force 
margin requirements for non-centrally cleared derivatives. A further 
4 jurisdictions made some progress in implementation leading to a 
change in reported implementation status during the reporting 
period. See Financial Stability Board, ``OTC Derivatives Market 
Reforms Thirteenth Progress Report on Implementation'' (Nov. 2018), 
available at https://www.fsb.org/wp-content/uploads/P191118-5.pdf.
---------------------------------------------------------------------------

    Notably, the European Parliament and the European Council have 
adopted the European Market Infrastructure Regulation (``EMIR''), which 
includes provisions aimed at increasing the safety and transparency of 
the OTC derivatives market. EMIR mandates the European Supervisory 
Authorities (``ESAs'') to develop regulatory technical standards 
specifying margin requirements for non-centrally cleared OTC 
derivatives contracts. The ESAs have developed, and in October 2016

[[Page 24251]]

the European Commission adopted, these regulatory technical 
standards.\316\
---------------------------------------------------------------------------

    \316\ See EBA, EIOPA, and ESMA, ``Regulatory Technical Standards 
(RTS) on risk mitigation techniques for OTC derivatives not cleared 
by a central counterparty (CCP)'' (March 2016), available at https://www.eba.europa.eu/documents/10180/1398349/RTS+on+Risk+Mitigation+Techniques+for+OTC+contracts+%28JC-2016-+18%29.pdf/fb0b3387-3366-4c56-9e25-74b2a4997e1d; see also EC 
Delegated Regulation, supplementing Regulation (EU) No 648/2012 of 
the European Parliament and of the Council on OTC derivatives, 
central counterparties and trade repositories with regard to 
regulatory technical standards for risk-mitigation techniques for 
OTC derivative contracts not cleared by a central counterparty (Oct. 
4, 2016), available at https://ec.europa.eu/finance/financial-markets/docs/derivatives/161004-delegated-act_en.pdf. After the non-
objection from the European Parliament and Council, Delegated 
Regulation (EU) 2016/2251 was published in the Official Journal of 
the European Union and entered into force on January 4, 2017.
---------------------------------------------------------------------------

    Several jurisdictions have also taken steps to implement the Basel 
III recommendations governing capital requirements for financial 
entities, which include enhanced capital charges for non-centrally 
cleared OTC derivatives transactions.\317\ Moreover, as discussed 
above, subsequent to the publication of the proposing release, the 
Basel Committee on Banking Supervision (``BCBS'') and the Board of the 
International Organization of Securities Commissions (``IOSCO'') issued 
the Margin Requirements for Non-centrally Cleared Derivatives (``WGMR 
Paper'') that recommends minimum standards for margin requirements for 
non-centrally cleared derivatives.\318\ The recommendations in the WGMR 
Paper included a recommendation that all financial entities and 
systemically important non-financial entities exchange variation and 
initial margin appropriate for the counterparty risk posed by such 
transactions, that initial margin should be exchanged without 
provisions for ``netting'' and held in a manner that protects both 
parties in the event of the other's default, and that the margin 
regimes of the various regulators should interact so as to be 
sufficiently consistent and non-duplicative.
---------------------------------------------------------------------------

    \317\ In November 2018, the Financial Stability Board reported 
that 23 of the 24 member jurisdictions participating in its 
thirteenth progress report on OTC derivatives market reforms had in 
force interim standards for higher capital requirements for non-
centrally cleared transactions. See Financial Stability Board, OTC 
Derivatives Market Reforms Thirteenth Progress Report on 
Implementation (Nov. 2018), available at https://www.fsb.org/wp-content/uploads/P191118-5.pdf.
    \318\ See BCBS, IOSCO, ``Margin Requirements for Non-centrally 
Cleared Derivatives'' (Mar. 2015), available at https://www.bis.org/bcbs/publ/d317.pdf.
---------------------------------------------------------------------------

6. Other Markets and Existing Regulatory Frameworks
    The numerous financial markets are integrated, often attracting the 
same market participants that trade across corporate bond, swap, and 
security-based swap markets, among others. A discussion of other 
markets and existing regulatory frameworks can be found in a prior 
release.\319\
---------------------------------------------------------------------------

    \319\ See Rule of Practice 194 Adopting Release, 84 FR at 4927.
---------------------------------------------------------------------------

7. Estimates of Persons That May Use the Proposed Exception to Rule 
3a71-3
    To analyze the economic effects of the proposed exception to Rule 
3a71-3, the Commission has analyzed 2017 TIW data to identify persons 
that may use the proposed exception. The Commission preliminarily 
believes that these persons fall into several categories, which we 
discuss below.
a. Non-U.S. Persons Seeking To Reduce Assessment Costs
    One category of persons that may use the proposed exception are 
those non-U.S. persons that may need to assess the amount of their 
market-facing activity against the de minimis thresholds solely because 
of the inclusion of security-based swap transactions between two non-
U.S. persons that are arranged, negotiated, or executed by personnel 
located in the U.S. for the purposes of the de minimis threshold 
analysis. These non-U.S. persons may have an incentive to rely on the 
proposed exception as a means of avoiding assessment and business 
restructuring if the cost of compliance associated with the proposed 
exception is less than assessment costs and the costs of business 
restructuring. In the ANE Adopting Release, the Commission provided an 
estimate of this category of persons.\320\ However, in light of the 
reduction in security-based swap market activity since the publication 
of the ANE Adopting Release,\321\ the Commission preliminarily believes 
that it would be appropriate to update that estimate to more accurately 
identify the set of persons that potentially may use the proposed 
exception. Analyses of the 2017 TIW data indicate that approximately 
five additional non-U.S. persons,\322\ beyond those non-U.S. persons 
likely to incur assessment costs in connection with the other cross-
border counting rules that the Commission previously had adopted in the 
Cross-Border Adopting Release,\323\ are likely to exceed the $2 billion 
threshold \324\ the Commission has previously employed to estimate the 
number of persons likely to incur assessment costs under Exchange Act 
rule 3a71-3(b). These non-U.S. persons may have an incentive to rely on 
the proposed exception as a means of avoiding assessment if the cost of 
compliance associated with the proposed exception is less than the 
assessment costs.
---------------------------------------------------------------------------

    \320\ See ANE Adopting Release, 81 FR at 8627.
    \321\ See part VII.A.4, supra.
    \322\ Adjustments to these statistics from the ANE Adopting 
Release reflect further analysis of the TIW data. Cf. ANE Adopting 
Release, 81 FR at 8627 (providing an estimate of 10 additional non-
U.S. persons based on 2014 TIW data).
    \323\ See note 13, supra.
    \324\ See ANE Adopting Release, 81 FR at 8626.
---------------------------------------------------------------------------

b. Non-U.S. Persons Seeking To Avoid Security-Based Swap Dealer 
Regulation
    Another category of persons that potentially may use the proposed 
exception are those non-U.S. persons whose dealing transaction volume 
would have fallen below the $3 billion de minimis threshold if their 
transactions with non-U.S. counterparties were not counted toward the 
de minimis threshold under the current ``arranged, negotiated, or 
executed'' counting requirement, but absent the exception, would have 
dealing transactions in excess of that threshold.\325\ Such non-U.S. 
persons may choose to use the proposed exception if they expect the 
compliance cost associated with the proposed exception to be lower than 
the compliance cost associated with being subject to the full set of 
security-based swap dealer regulation and the cost of business 
restructuring. The Commission's analysis of 2017 TIW data indicates 
that there is one non-U.S. person whose transaction volume would have 
fallen below the $3 billion de minimis threshold if that person's 
transactions with non-U.S. counterparties were not counted toward the 
de minimis threshold under the current ``arranged, negotiated, or 
executed'' counting requirement.\326\
---------------------------------------------------------------------------

    \325\ The $3 billion threshold is being used to help identify 
potential impacts of the proposal. A phase-in threshold of $8 
billion currently is in effect. See Exchange Act Rule 3a71-2(a)(1).
    \326\ The analysis begins by considering the single-name CDS 
transactions of each of the non-U.S. persons against both U.S. 
person and non-U.S. person counterparties. The Commission then 
excluded transactions involving these non-U.S. persons and their 
non-U.S. person counterparties. For this analysis, we assume that 
all transactions between non-U.S. person dealers and non-U.S. 
counterparties are arranged, negotiated, or executed using U.S. 
personnel.
---------------------------------------------------------------------------

c. U.S. Dealing Entities Considering Changes to Booking Practices
    A third category of persons that potentially may use the 
conditional exception are those U.S. dealers that use U.S. personnel to 
arrange, negotiate, or execute transactions with non-U.S. 
counterparties. If the proposed exception were available, such dealers

[[Page 24252]]

may consider booking future transactions with non-U.S. counterparties 
to their non-U.S. affiliates, while still using U.S. personnel to 
arrange, negotiate, or execute such transactions. These U.S. dealers 
may have an incentive to engage in such booking practices in order to 
utilize the proposed exception to the extent that they wish to continue 
using U.S. personnel to arrange, negotiate, or execute transactions 
with non-U.S. counterparties and the compliance cost associated with 
the proposed exception is less than the cost of compliance with Title 
VII requirements (if they choose not to book transactions to avail 
themselves of the proposed exception) and the cost of business 
restructuring (if they choose to both book transactions to their non-
U.S. affiliates and also refrain from using U.S. personnel to arrange, 
negotiate or execute such transactions).\327\ The Commission's analysis 
of 2017 TIW data indicates that there are six U.S. dealers who transact 
with non-U.S. counterparties, who are likely to register as security-
based swap dealers,\328\ and have non-U.S. affiliates that also 
transact in the CDS market. To the extent that these U.S. dealers 
anticipate booking future transactions with non-U.S. counterparties 
that are arranged, negotiated, or executed by U.S. personnel to their 
non-U.S. affiliates, the Commission preliminarily believes that these 
U.S. dealers may potentially make use of the proposed exception.
---------------------------------------------------------------------------

    \327\ The Commission recognizes that this potential use of the 
proposed exception by U.S. dealing entities is distinct from the 
rationale underlying the proposed exception, which is to help avoid 
market fragmentation and operational risks resulting from the 
relocation of U.S. personnel by non-U.S. dealers. See part I.A.4, 
supra. Nonetheless, such changes in booking practices by U.S. 
dealing entities might be a consequence of the proposal.
    \328\ To the extent that U.S. persons with transaction volumes 
that are insufficient to trigger dealer registration potentially 
might also make use of the proposed exception, this estimate would 
be a lower bound estimate of the number of U.S. persons that 
potentially may make use of the proposed exception.
---------------------------------------------------------------------------

d. Additional Considerations and Summary
    Under Alternative 1,\329\ the U.S. arranging, negotiating, and 
executing activity could be conducted by a registered security-based 
swap dealer. Under Alternative 2, the U.S. arranging, negotiating, and 
executing could be conducted by a registered broker.\330\ The economic 
analysis of these alternatives depends, in part, on whether non-U.S. 
persons that might make use of the proposed exception have U.S. 
affiliates that are likely to register as security-based swap dealers 
(under Alternative 1) or that are registered broker-dealers (under 
Alternative 2). Of the six non-U.S. persons discussed above,\331\ four 
have majority-owned affiliates that are registered broker-dealers. Of 
these non-U.S. persons, one has a majority-owned affiliate that is 
likely to register as a security-based swap dealer. Of the six U.S. 
persons discussed above, all have majority-owned affiliates that are 
registered broker-dealers, and all have majority-owned affiliates that 
are likely to register as security-based swap dealers. Of these 12 
persons, eight are banks, and three are affiliated with banks. These 
estimates are summarized in Table 1 below. The Commission's analysis of 
2017 TIW data indicates that these 12 persons transacted with 807 non-
U.S. counterparties, of which 558 participate in the swap markets and 
249 do not.
---------------------------------------------------------------------------

    \329\ See part III.B, supra.
    \330\ See part III.C, supra.
    \331\ Calculated as the 5 non-U.S. persons seeking to reduce 
assessment costs (part VII.A.7.a) + 1 non-U.S. person seeking to 
avoid security-based swap dealer regulation (part VII.A.7.b) = 6 
non-U.S. persons.

   Table 1--Affiliates of Persons That May Use the Proposed Exception
------------------------------------------------------------------------
  Persons identified in TIW data that may use
            the proposed exception                Non-U.S.       U.S.
------------------------------------------------------------------------
Estimate......................................            6            6
Breakdown:
    Has majority-owned registered broker-                 4            6
     dealer affiliate.........................
    Has majority-owned registered security-               1            6
     based swap dealer affiliate..............
    Is a bank.................................            4            4
    Is a bank affiliate.......................            1            2
------------------------------------------------------------------------

    3In summary, the Commission's analysis of 2017 TIW data indicates 
that 12 persons \332\ may make use of the proposed exception. In light 
of the uncertainty associated with this estimate \333\ and to account 
for potential growth of the security-based swap market, and consistent 
with the approach in the ANE Adopting Release, the Commission believes 
that it is reasonable to increase this estimate by a factor of 
two.\334\ As a result, the Commission preliminarily estimates that up 
to 24 persons potentially may make use of the proposed exception. The 
Commission also doubles the number of non-U.S. counterparties discussed 
above and preliminarily estimates that persons that may make use of the 
proposed exception may transact with up to 1,614 non-U.S. 
counterparties, of which 1,116 participate in the swap markets and 498 
do not.\335\
---------------------------------------------------------------------------

    \332\ Calculated as 5 non-U.S. persons seeking to reduce 
assessment costs (part VII.A.7.a) + 1 non-U.S. person seeking to 
avoid security-based swap dealer regulation (part VII.A.7.b) + 6 
U.S. persons considering changes to booking practices (part 
VII.A.7.c) = 12 persons.
    \333\ The estimate may be overinclusive, as it is unlikely that 
all transactions between two non-U.S. persons are arranged, 
negotiated, or executed by personnel located in a U.S. branch or 
office; it may also be underinclusive, as our TIW data do not 
include single-name CDS transactions between two non-U.S. entities 
written on non-U.S. underliers, some of which may be arranged, 
negotiated, or executed by personnel located in a U.S. branch or 
office, or transactions on other types of security-based swaps 
(including equity swaps) whether on U.S. or non-U.S. underliers. See 
ANE Adopting Release, 81 FR at 8627.
    \334\ See ANE Adopting Release, 81 FR at 8627.
    \335\ See part VII.B.3.a, infra where we use these estimates to 
calculate certain costs associated with an additional alternative.
---------------------------------------------------------------------------

8. Estimates of Persons That Potentially May Be Affected by the 
Proposed Market Color Guidance
    As discussed in part II supra, the ``arranged, negotiated, or 
executed'' test has been incorporated within the de minimis counting 
standard, the cross-border application of security-based swap dealer 
business conduct provisions, and the cross-border application of 
Regulation SBSR's regulatory reporting and public dissemination 
provisions. The Commission preliminarily believes that the persons that 
may rely on this proposed guidance fall into a number of categories, 
which we discuss below.

[[Page 24253]]

a. Non-U.S. Dealing Entities That Use Guidance in Connection With 
Counting, Business Conduct, and Regulatory Reporting and Public 
Dissemination Requirements
    Because non-U.S. security-based swap dealers are entities that fall 
within the scope of the de minimis counting, business conduct, and 
regulatory reporting and public dissemination provisions due to their 
dealing activities and their obligations under these provisions depend 
in part on the ``arranged, negotiated, or executed'' test, the 
Commission preliminarily believes that non-U.S. security-based swap 
dealers would be persons that potentially may change their assessment 
with respect to compliance with security-based swap dealer regulation 
generally as a result of the proposed guidance. Based on 2017 TIW data, 
the Commission estimates that up to 22 non-U.S. persons \336\ will 
register as security-based swap dealers.
---------------------------------------------------------------------------

    \336\ This estimate is based on the number of accounts in TIW 
data with total notional volume in excess of de minimis thresholds, 
increased by a factor of two, to account for any potential growth in 
the security-based swap market, to account for the fact that the 
Commission is limited in observing transaction records for activity 
between non-U.S. persons to those that reference U.S. underliers, 
and to account for the fact that the Commission does not observe 
security-based swap transactions other than in single-name CDS. See 
Business Conduct Adopting Release, 81 FR at 30105 and note 1633 
therein.
---------------------------------------------------------------------------

b. Non-U.S. Persons That Use Guidance in Connection With de minimis 
assessment
    A second group of persons that may be affected by the proposed 
guidance are non-U.S. persons that may need to assess the amount of 
their market-facing activity against the de minimis thresholds solely 
because of the inclusion for the purposes of the de minimis threshold 
analysis of security-based swap transactions between two non-U.S. 
persons that are arranged, negotiated, or executed by personnel located 
in the U.S. As discussed elsewhere,\337\ the Commission preliminarily 
believes that these non-U.S. persons will incur reporting obligations 
under Regulation SBSR in connection with security-based swap 
transactions with other non-U.S. persons that are arranged, negotiated, 
or executed by U.S. personnel. As discussed in part VII.A.7 above, this 
group consists of five non-U.S. persons based on the analysis of 2017 
TIW data, which the Commission has increased by a factor of two to 10.
---------------------------------------------------------------------------

    \337\ See Regulation SBSR Amendments Adopting Release, 81 FR 156 
at 53614 & n.657.
---------------------------------------------------------------------------

c. Non-U.S. Persons That Use Guidance in Connection With Assessing 
Regulatory Reporting and Public Dissemination Requirements
    A third group of persons that may be affected by the proposed 
guidance are unregistered non-U.S. persons that will incur costs, under 
Rule 908(b)(5), to assess whether they engage in security-based swap 
transactions with non-U.S. persons that are arranged, negotiated, or 
executed by U.S. personnel, and if so, whether they will incur 
reporting duties under Rule 901(a)(2)(ii)(E).\338\ The Commission 
preliminarily estimates that this group consists of five non-U.S. 
persons,\339\ who are in addition to the non-U.S. persons described in 
part VII.A.8.b above.
---------------------------------------------------------------------------

    \338\ See Regulation SBSR Amendments Adopting Release, 81 FR 156 
at 53638.
    \339\ The Commission has previously estimated that there are 
four unregistered non-U.S. persons that will incur assessment costs 
as a result of Rule 908(b)(5). See Regulation SBSR Amendments 
Adopting Release, 81 FR 156 at 53638 n.919. In light of the changes 
in the security-based swap market, as noted in part VII.A.4 supra, 
the Commission has updated the estimate using 2017 TIW data and 
preliminarily believes that there are five unregistered non-U.S. 
persons that will incur assessment costs as a result of Rule 
908(b)(5). Because of the relatively low volume of transaction 
activity of these five entities during 2017 and the existence of 
affiliations with other entities expected to register as security-
based swap dealers, the Commission preliminarily believes that, even 
after accounting for growth in the security-based swap market and 
acknowledging the limitations of the transaction data available for 
analysis, five is a reasonable estimate of the number of 
unregistered dealing entities likely to incur assessment costs as a 
result of Rule 908(b)(5).
---------------------------------------------------------------------------

d. Non-U.S. Persons Affiliated With U.S. Dealing Entities That Consider 
Changes to Booking Practices
    A fourth group of persons that may be affected by the proposed 
guidance are the non-U.S. persons affiliated with those U.S. dealers 
that may use U.S. personnel to arrange, negotiate, or execute 
transactions with non-U.S. counterparties and book those transactions 
to the non-U.S. persons. As discussed in part VII.A.7 above, these U.S. 
dealers may have an incentive to engage in such booking practices in 
order to utilize the proposed exception to the extent that they wish to 
continue using U.S. personnel to arrange, negotiate, or execute 
transactions with non-U.S. counterparties and the compliance cost 
associated with the proposed exception is less than the cost of 
compliance with Title VII requirements and the cost of business 
restructuring. As discussed in part VII.A.7 above, the Commission 
preliminarily estimates that up to 12 U.S. dealers \340\ potentially 
may use the proposed exception. To the extent that each of these 
dealers chooses to book transactions subject to the proposed exception 
to one unregistered non-U.S. person affiliate, the Commission 
preliminarily believes that this fourth group of non-U.S. persons would 
consist of 12 unregistered non-U.S. persons. The Commission 
preliminarily believes that these non-U.S. persons may incur reporting 
duties under Rule 901(a)(2)(ii)(E) \341\ and are in addition to the 
non-U.S. persons described in part VII.A.8.c above.
---------------------------------------------------------------------------

    \340\ This is calculated as the six U.S. dealers identified in 
2017 TIW data increased by a factor of 2 to 12.
    \341\ See Regulation SBSR Amendments Adopting Release, 81 FR 156 
at 53638.
---------------------------------------------------------------------------

    All told, the Commission preliminarily believes that up to 49 non-
U.S. persons \342\ potentially may be affected by the proposed 
guidance.
---------------------------------------------------------------------------

    \342\ Calculated as 22 non-U.S. dealing entities that use the 
proposed guidance in connection with counting, business conduct, and 
regulatory reporting and public dissemination requirements (part 
VII.A.8.a) + 10 non-U.S. persons that use the proposed guidance in 
connection with de minimis assessment (part VII.A.8.b) + 5 non-U.S. 
persons that use the proposed guidance in connection with assessing 
regulatory reporting and public dissemination requirements (part 
VII.A.8.c) + 12 non-U.S. persons affiliated with U.S. dealing 
entities that consider changes to booking practices (part VII.A.8.d) 
= 49 non-U.S. persons.
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9. Statutory Disqualification
    In the Rule of Practice 194 Adopting Release, the Commission 
analyzed, among others, data on the number of natural persons 
associated with SBS Entities, applications for review under parallel 
review processes, and relevant research on statutory disqualification. 
In that release, the Commission estimated that SBS Entities may file up 
to five applications per year with respect to their associated natural 
persons. A more detailed discussion of these data and estimates can be 
found in that release.\343\ If associated natural persons who become 
statutorily disqualified are located outside of the U.S. and transact 
exclusively with foreign counterparties and foreign branches of U.S. 
counterparties, the proposal may decrease the number of these 
applications for relief and corresponding direct costs. Based on the 
Commission's experience with broker-dealers and on the Commission's 
understanding of current market activity in security-based swaps, the 
Commission preliminarily estimates that the proposed exclusion may 
reduce the number of applications under Rule

[[Page 24254]]

of Practice 194 by between zero and two applications.
---------------------------------------------------------------------------

    \343\ See Rule of Practice 194 Adopting Release, 84 FR at 4925.
---------------------------------------------------------------------------

10. Certification, Opinion of Counsel, and Employee Questionnaires
    As a baseline matter, SBS Entity Registration rules, including Rule 
15Fb2-1 and the certification and opinion of counsel requirements in 
Rule 15Fb2-4, have been adopted but compliance with registration rules 
is not yet required.
    In addition, Rule 17a-3(a)(12) requires all broker-dealers, 
including broker-dealers that may seek to register with the Commission 
as SBS Entities, to make and keep current a questionnaire or 
application for employment for each associated person. In the 
Recordkeeping and Reporting Proposing Release, the Commission proposed 
a parallel requirement, in Rule 18a-5, for stand-alone and bank SBS 
Entities. The Commission is proposing modifications to proposed Rule 
18a-5(a)(10) and Rule 18a-5(b)(8). Based on 2017 TIW data, of 22 non-
U.S. persons that may register with the Commission as security-based 
swap dealers, the Commission estimates that approximately 12 security-
based swap dealers will be foreign banks and another 3 will be foreign 
stand-alone security-based swap dealers that may be affected by these 
proposed modifications.

B. Proposed Amendment to Rule 3a71-3

    This section discusses the potential costs and benefits associated 
with the proposed amendment to Rule 3a71-3, the effects of the proposed 
amendment on efficiency, competition, and capital formation, and 
alternative approaches to the proposed amendment. The Commission's 
analysis considers the costs and benefits of both Alternative 1 and 
Alternative 2. Because many of the conditions associated with the 
exception are the same in both proposed alternatives, the Commission 
expects them to produce many of the same economic consequences. Where 
the Commission believes those costs and benefits would be the same 
under either proposed alternative, they are discussed together. Where 
the costs and benefits may differ, they are discussed separately.
    Under either Alternative 1 or Alternative 2, each person that 
engages in arranging, negotiating, and executing activity with non-U.S. 
counterparties using affiliated U.S.-based personnel would have two 
possible options for complying with the Commission's Title VII 
regulations regarding the cross-border application of the ``security-
based swap dealer'' definition. The first option would be for the 
persons to follow current security-based swap dealer counting 
requirements without regard for the exception afforded by the proposed 
amendment (whichever alternative is adopted). Specifically, a person 
could opt to incur the assessment costs to determine (i) whether any 
portion of their security-based swap transaction activities must be 
counted against the dealer de minimis thresholds, and (ii) whether the 
total notional amount of relevant transaction activities exceeds the de 
minimis threshold.\344\ If the amount of its activities crosses the de 
minimis thresholds, then the person would have to register as a 
security-based swap dealer and become subject to Title VII security-
based swap dealer requirements. A person that chooses to comply in this 
manner would experience no incremental economic effects under the 
proposed alternative as compared to the baseline.
---------------------------------------------------------------------------

    \344\ See part I.A.2, supra.
---------------------------------------------------------------------------

    The second option would be to rely on the exception afforded by the 
proposed amendment (whichever alternative is adopted). Under the 
proposed amendment, a person could register one entity as a registered 
security-based swap dealer (under both proposed alternatives) or as a 
registered broker (only under Alternative 2) \345\ to arrange, 
negotiate, or execute transactions with non-U.S. counterparties on its 
behalf using personnel located in a U.S. branch or office. Doing so 
could allow it to avoid the direct regulation of itself (or multiple 
affiliated entities) as a security-based swap dealer. A person that 
chooses to use this exception and incur the associated costs to meet 
the conditions of this exception, detailed below, likely would not 
incur assessment costs with respect to security-based swap transactions 
with non-U.S. counterparties that are arranged, negotiated, or executed 
by personnel located in the United States.
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    \345\ Under Alternative 2, registration may not be required if, 
as discussed in part VII.A.7, supra, persons who may take advantage 
of this exception already have a registered broker-dealer affiliate 
and choose to use their existing registered broker-dealer affiliate 
to take advantage of the exception. See also part VII.B.1.a, infra.
---------------------------------------------------------------------------

    As discussed above, the Commission preliminarily believes that up 
to 24 \346\ persons potentially may use the proposed exception to the 
extent that the compliance costs associated with the proposed exception 
are lower than the compliance costs in the absence of the proposed 
exception.
---------------------------------------------------------------------------

    \346\ See part VII.A.7, supra.
---------------------------------------------------------------------------

1. Costs and Benefits of the Proposed Amendment
    The Commission preliminarily believes that the proposed amendment 
would provide increased flexibility to security-based swap market 
participants to comply with the Title VII framework while preserving 
their existing business practices. This could reduce their compliance 
burdens, while supporting the Title VII regime's benefit of mitigating 
risks in foreign security-based swap markets that may flow into U.S. 
financial markets through liquidity spillovers. The Commission also 
preliminarily believes that the amendments could reduce market 
fragmentation and associated distortions. At the same time, and as 
detailed later in this section, the Commission acknowledges that the 
proposed amendment potentially limits certain other programmatic 
benefits of the Title VII regime by excusing security-based swap market 
participants that elect to use the exception from some of the Title VII 
requirements that would otherwise apply to their activity. The 
Commission preliminarily believes that the proposed amendment will 
result in compliance costs for persons that elect to use the exception, 
as described below. However, the Commission expects that persons will 
elect to incur those costs only where it would be less costly than 
either complying with the Title VII framework or restructuring to avoid 
using U.S. personnel to arrange, negotiate, or execute transactions 
with non-U.S. counterparties.

[[Page 24255]]

a. Costs and Benefits for Persons That May Use the Proposed Amendment
    The primary benefit of the proposed amendment is that it would 
permit a person further flexibility to opt into a Title VII compliance 
framework that is compatible with its existing business practices. 
While the registered U.S. person would be the entity adhering to most 
of the conditions set forth in the proposed amendment and the non-U.S. 
person would be responsible for complying with some of the other 
conditions,\347\ for the purposes of this analysis, the Commission 
assumes that the costs of complying with these conditions will be 
passed on to the non-U.S. person affiliate. In the absence of the 
proposed amendment, a non-U.S. person could incur the cost of 
registering as a security-based swap dealer and a financial group may 
incur the cost of registering at least one security-based swap dealer 
\348\ due to the ``arranged, negotiated, or executed'' counting 
test.\349\ The non-U.S. person or group accordingly would incur the 
cost necessary for compliance with the full set of security-based swap 
dealer requirements by one or more registered security-based swap 
dealers. These burdens, contingent on exceeding the de minimis 
threshold, are in addition to the assessment costs that the non-U.S. 
person would incur to identify and count relevant market-facing 
activity toward the de minimis threshold.
---------------------------------------------------------------------------

    \347\ See, e.g., proposed Alternative 1--proposed paragraph 
(d)(1)(iii)(A) of Rule 3a71-3.
    \348\ The available data limit the Commission's ability to 
discern the multiple different legal entities each of which engages 
in security-based swap market-facing activity at levels above the de 
minimis thresholds because the way in which non-U.S. persons 
organize their dealing business may not align with the way their 
transaction volumes are accounted for in TIW. In particular, it is 
possible that some of the 10 non-U.S. persons identified in the TIW 
data as potential registrants aggregate transaction volumes of 
multiple non-U.S. person dealers. In such cases, the exclusion of 
transactions between these non-U.S. person dealers and non-U.S. 
counterparties from the de minimis calculations may result in 
multiple non-U.S. person dealers no longer meeting the de minimis 
threshold.
    \349\ See id.
---------------------------------------------------------------------------

    As discussed in the ANE Adopting Release, such a non-U.S. person 
could respond to these costs by restructuring its security-based swap 
business to avoid using U.S. personnel to arrange, negotiate, or 
execute transactions with non-U.S. counterparties. Such a strategy 
would allow the non-U.S. person to avoid counting transactions between 
the non-U.S. person and its non-U.S. counterparties toward the non-U.S. 
person's de minimis threshold. In addition to reducing the likelihood 
of incurring the programmatic costs associated with the full set of 
security-based swap dealer requirements under Title VII, this response 
to current requirements could reduce the assessment costs associated 
with counting transactions toward the de minimis threshold and fully 
abrogate the need to identify transactions with non-U.S. counterparties 
that involve U.S. personnel.\350\
---------------------------------------------------------------------------

    \350\ In 2016, the Commission estimated a cost of $410,000 per 
entity to establish systems to identify market-facing activity 
arranged, negotiated, or executed using U.S. personnel and $6,500 
per entity per year for training, compliance and verification costs. 
See ANE Adopting Release, 81 FR at 8627. Adjusted for inflation, 
these amounts are approximately $435,000 and $6,900 in 2018 dollars.
---------------------------------------------------------------------------

    However, the Commission also noted in the ANE Adopting Release that 
restructuring is itself costly. To reduce the costs of assessment and 
potential dealer registration, a non-U.S. person may need to incur 
costs to ensure that U.S. personnel are not involved in arranging, 
negotiating, or executing transactions with non-U.S. counterparties. 
The Commission was able to quantify some, but not all of the costs of 
restructuring in the ANE adopting release.\351\ As discussed above in 
part VII.A.2.d, non-U.S. persons may make their location decisions 
based on business considerations such as maintaining 24-hour operations 
or the value of local market expertise. Thus, restructuring business 
lines or relocating personnel (or the activities performed by U.S. 
personnel) to avoid the United States could result in less efficient 
operations for non-U.S. persons active in the security-based swap 
market.
---------------------------------------------------------------------------

    \351\ In 2016, the Commission estimated it would cost 
approximately $28,300 per entity to establish policies and 
procedures to restrict communication between personnel located in 
the United States employed by non-U.S. persons or their agents, and 
other personnel involved in market-facing activity. See ANE Adopting 
Release, 81 FR at 8628. Adjusted for inflation, this is 
approximately $30,000. The Commission notes that the foregoing is 
one of the ways in which a non-U.S. person might choose to 
restructure its business activities. Other restructuring methods, 
such as the relocation of U.S. personnel to locations outside the 
United States, potentially would be more costly.
---------------------------------------------------------------------------

    The proposed exception would benefit non-U.S. persons by offering 
them an alternative to costly relocation or restructuring that would 
still permit them to avoid some of the costs associated with assessing 
their market-facing activity while also reducing the likelihood that 
their market-facing activity crosses the de minimis threshold. As 
discussed in detail below, the availability of the proposed exception 
would be conditioned on the use of a registered entity and compliance 
with certain Title VII requirements designed to protect counterparties 
but not all Title VII requirements. To the extent that the costs of 
compliance with these proposed conditions as part of Alternative 1 and 
Alternative 2 are lower than the compliance costs in the absence of the 
proposed amendment and the costs of business restructuring, the 
exception could reduce the regulatory cost burden for the non-U.S. 
person or group.
    The Commission recognizes that U.S.-based dealing entities may use 
the proposed exception by booking transactions with non-U.S. 
counterparties into non-U.S. affiliates, thereby avoiding the 
application of the full set of security-based swap dealer requirements 
to those transactions and the associated security-based swaps.\352\ As 
discussed further in part VII.B.1.b infra, U.S.-based dealing entities 
that use the conditional exception in this manner may benefit by 
incurring lower compliance costs when providing liquidity to non-U.S. 
counterparties.
---------------------------------------------------------------------------

    \352\ See parts III.A and VII.A.7, supra.
---------------------------------------------------------------------------

    The Commission's designation of a listed jurisdiction by order 
could signal to non-U.S. counterparties that a non-U.S. person was 
subject to a regulatory regime that, at a minimum, is consistent with 
the public interest in terms of financial responsibility requirements, 
the jurisdiction's supervisory compliance program, the enforcement 
authority in connection with those requirements, and other factors the 
Commission may consider. This process potentially provides a 
certification benefit to non-U.S. persons availing themselves of the 
proposed exception by demonstrating to non-U.S. counterparties the 
applicability of regulatory requirements that would be in the public 
interest.
    Table 2 summarizes the quantifiable costs the Commission estimates 
non-U.S. persons could incur as a result of the conditions associated 
with the proposed exception. The per-entity cost estimates assume the 
de novo formation of a security-based swap dealer or broker-dealer. The 
Commission expects that these are likely upper bounds for per-entity 
costs for two reasons. First, non-U.S. persons may already be regulated 
by jurisdictions with similar requirements and, as a consequence of 
foreign regulatory requirements, may already have established 
infrastructure, policies, and procedures that would facilitate meeting 
the conditions of the proposed exception. For example, a non-U.S. 
person regulated by a jurisdiction with similar trade acknowledgement 
and verification requirements would likely already have an order 
management system in place capable of complying with Rule 15Fi-2,

[[Page 24256]]

making development of a novel system for the purpose of taking 
advantage of the proposed exception unnecessary. Second, non-U.S. 
persons that already have an affiliated registered security-based swap 
dealer (under Alternative 1 or 2) or an affiliated registered broker-
dealer (under Alternative 2) likely would use their existing registered 
affiliates to rely on the proposed exception rather than register new 
entities.

        Table 2--Estimates of Quantifiable Costs Associated With Proposed Amendment to Rule 3a71-3 \353\
----------------------------------------------------------------------------------------------------------------
                                                           Initial costs                   Ongoing costs
                                                 ---------------------------------------------------------------
                                                    Per entity       Aggregate      Per entity       Aggregate
----------------------------------------------------------------------------------------------------------------
Registered entity:
    Security-based swap dealer registration.....        $514,000     $12,336,000          $2,705       * $64,920
    Security-based swap dealer capital            ..............  ..............       3,000,000      72,000,000
     requirement................................
    Applicable SBSD requirements................      11,688,700     280,528,800         522,900      12,549,600
    Recordkeeping:
         If registered entity is a               437,444      10,498,656         101,278       2,430,672
         registered security-based swap dealer
         and registered broker-dealer...........
         If registered entity is a stand-        231,988       5,567,712          59,541       1,428,984
         alone registered SBSD..................
         If registered entity is a bank          178,534       4,284,816          42,952       1,030,848
         registered SBSD........................
Trading relationship documentation..............           3,000          72,000           3,528          84,672
Consent to service of process...................             409           9,816  ..............  ..............
Broker-dealer registration \354\................         291,500       7,000,000          53,000       1,272,000
Broker-dealer capital requirement \355\.........  ..............  ..............          35,300         847,200
Non-U.S. entity:
    Trading relationship documentation..........           3,000          72,000           7,056         169,344
    Consent to service of process...............             409           9,816  ..............  ..............
    Disclosure of limited Title VII                     * 29,715        [dagger]  ..............  ..............
     applicability..............................                         713,160
``Listed jurisdiction'' applications............         115,920         347,760  ..............  ..............
----------------------------------------------------------------------------------------------------------------
* and 100 hours.
[dagger] and 2,400 hours.

    Under Alternative 1, if a non-U.S. person, or its affiliated group, 
seeks to utilize the exception, that person, or its affiliated group, 
would incur the cost of registering one U.S. based entity as a 
security-based swap dealer (if there otherwise is not an affiliated 
security-based swap dealer present).\356\ The Commission estimates per 
entity initial costs of registering a security-based swap dealer of 
approximately $514,000.\357\ In addition, the non-U.S. person or its 
affiliated group would incur ongoing costs associated with its 
registered security-based swap dealer of approximately $2,705.\358\ 
Based on the Commission's estimate that up to 24 \359\ persons might 
avail themselves of Alternative 1, the aggregate initial costs 
associated with registering security-based swap dealers under 
Alternative 1 would be approximately $12,336,000 and the aggregate 
ongoing costs would be approximately $64,920.\360\ The U.S. person 
affiliate of such a non-U.S. person or affiliated group would also be 
required to meet minimum capital requirements as a registered security-
based swap dealer.\361\ At a minimum, the Commission estimates the 
ongoing cost of this capital to be approximately $3 million \362\ per 
entity and $72 million in aggregate.\363\ To the extent that this 
capital is held in liquid assets \364\ that

[[Page 24257]]

generate a positive return to the registered security-based swap 
dealer, that positive return could be used to offset, at least in part, 
the ongoing cost of capital.
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    \353\ Unless otherwise stated, cost estimates presented in Table 
2 apply to both Alternatives 1 and 2.
    \354\ Cost applicable only to Alternative 2.
    \355\ Cost applicable only to Alternative 2.
    \356\ This is a Title VII programmatic cost and is in addition 
to other Title VII programmatic costs discussed in part VII.B.1.b, 
infra.
    \357\ These estimates incorporate quantifiable initial costs 
presented in the Registration Adopting Release, 80 FR at 48990-48995 
and 49005-49006, adjusted for CPI inflation using data from the 
Bureau of Labor Statistics between 2015 and 2018. Specifically, per 
entity initial costs are estimated in 2015 dollars as $11,886 
(filing Form SBSE) + $12,125 (senior officer certification) + 
$410,310 (associated natural person certifications) + $24,735 
(associated entity person certifications) + $25,424.50 (initial 
filing of Schedule F) = $484,480.50, and adjusted by 1.06 to 
$513,549.30 or approximately $514,000 in current dollars.
    \358\ These estimates incorporate quantifiable annual costs 
presented in the Registration Adopting Release, 80 FR at 48990-48995 
and 49005-49006, adjusted for CPI inflation using data from the 
Bureau of Labor Statistics between 2015 and 2018. Specifically, 
ongoing costs are estimated in 2015 dollars as $849 (amending Form 
SBSE) + $1,373.25 (amending Schedule F) + $46.31 (retaining 
signature pages) + $283 (filing withdrawal form) = $2,551.56, and 
adjusted by 1.06 to $2,704.65 or approximately $2,705 in current 
dollars.
    \359\ See part VII.A.7, supra.
    \360\ Aggregate initial costs calculated as 24 x $514,000 = 
$12,336,000. Aggregate ongoing costs calculated as 24 x $2,705 = 
$64,920.
    \361\ Under proposed rules, a registered non-bank security-based 
swap dealer may be subject to minimum fixed-dollar capital 
requirements of $20 million or $1 billion in net capital and $100 
million or $5 billion in tentative net capital, depending in part on 
whether it is a stand-alone security-based swap dealer or a 
security-based swap dealer that is dually registered as a broker-
dealer, and on whether it uses models to compute deductions for 
market and credit risk. See Capital, Margin and Segregation 
Proposing Release, 77 FR at 70329, 70333. Registered security-based 
swap dealers that have a prudential regulator must comply with 
capital requirements that the prudential regulators have prescribed. 
See 80 FR 74840 (Nov. 30, 2015) (adopting capital requirements for 
bank security-based swap dealers).
    \362\ This estimation assumes that the registered entity must 
maintain a minimum of $20 million in net capital. See note 361, 
supra. The Commission estimated the cost of capital in two ways. 
First, the time series of average return on equity for all U.S. 
banks between the fourth quarter 1983 and the first quarter 2018 
(see Federal Financial Institutions Examination Council (US), Return 
on Average Equity for all U.S. Banks [USROE], retrieved from FRED, 
Federal Reserve Bank of St. Louis on December 7, 2018, available at 
https://fred.stlouisfed.org/series/USROE), are averaged to arrive at 
an estimate of 11.26%. The cost of capital is calculated as 11.26% x 
$20 million = $2.252 million or approximately $2.3 million. The 
Commission preliminarily believes that use of the historical return 
on equity for U.S. banks adequately captures the cost of capital 
because of the 12 persons that potentially may use the proposed 
exception, eight are banks and three have bank affiliates. See part 
VII.A.7 supra. To the extent that this approach does not adequately 
capture the cost of capital of persons that are not banks or have no 
bank affiliates, the Commission supplements the estimation by also 
using the annual stock returns on financial stocks to calculate the 
cost of capital. With this second approach, the annual stock returns 
on a value-weighted portfolio of financial stocks from 1983 to 2017 
(see Professor Ken French's website, available at https://mba.tuck.dartmouth.edu/pages/faculty/ken.french/data_library.html) 
are averaged to arrive at an estimate of 16.96%. The cost of capital 
is calculated as 16.96% x $20 million = $3.392 million or 
approximately $3.4 million. The final estimate of the cost of 
capital is the average of $2.3 million and $3.4 million = (2.3 + 
3.4)/2 = $2.85 million or approximately $3 million.
    \363\ Aggregate costs calculated as $3 million x 24 entities = 
$72 million.
    \364\ See Capital, Margin and Segregation Proposing Release, 77 
FR at 70219.
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    In addition to registering security-based swap dealers, U.S. person 
affiliates of non-U.S. persons seeking to rely on Alternative 1 would 
be required to comply with applicable security-based swap dealer 
requirements, including those related to disclosures of risks, 
characteristics, incentives, and conflicts of interest, suitability, 
communications, trade acknowledgment and verification, and portfolio 
reconciliation.\365\ The Commission estimates initial costs associated 
with these requirements of up to approximately $11,688,700 per 
entity,\366\ or up to $280,528,800 in aggregate,\367\ and ongoing costs 
associated with these requirements of approximately $522,900 per 
entity,\368\ or up to $12,549,600 in aggregate.\369\
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    \365\ See proposed Rule 3a71-3(d)(1)(ii)(B). The costs of 
complying with applicable security-based swap dealer requirements 
under proposed Alternative 1 are Title VII programmatic costs and 
are in addition to other Title VII programmatic costs discussed in 
part VII.B.1.b, infra.
    \366\ These estimates incorporate quantifiable initial costs 
presented in the Business Conduct Adopting Release, 81 FR at 30092-
30093, 30111, 30117, 30126, the Trade Acknowledgement and 
Verification Adopting Release, 81 FR at 39839, and the Risk 
Mitigation Proposing Release, 84 FR at 4658-4659, adjusted for CPI 
inflation, where applicable, using data from the Bureau of Labor 
Statistics between 2016 and 2018. Specifically, initial costs 
associated with disclosures, suitability, communications, and trade 
acknowledgement and verification are estimated in 2016 dollars as 
$906,666.67 (disclosures) + $ 523,640 (suitability) + $16,680 
(communications) + $128,550 (trade acknowledgement and verification) 
= $1,575,536.67, and adjusted by 1.05 to $1,654,313.50 in current 
dollars. The cost associated with disclosures has been adjusted to 
account for the fact that the disclosures of clearing rights and 
daily mark are not part of proposed paragraph (d)(1)(ii)(B)(1) of 
Rule 3a71-3. Initial costs associated with portfolio reconciliation 
are estimated in current dollars as $10,034,360. Per entity initial 
costs = $1,654,313.50 + $10,034,360 = $11,688,673.50 or 
approximately $11,688,700.00.
    \367\ Aggregate initial costs = Per entity initial costs of 
$11,688,700.00 x 24 entities = $280,528,800.
    \368\ These estimates incorporate quantifiable ongoing costs 
presented in the Business Conduct Adopting Release, 81 FR at 30092-
30093, 30111, 30126, the Trade Acknowledgement and Verification 
Adopting Release, 81 FR at 39839, and the Risk Mitigation Proposing 
Release, 84 FR at 4658-4659, adjusted for CPI inflation, where 
applicable, using data from the Bureau of Labor Statistics between 
2016 and 2018. Specifically, ongoing costs associated with 
disclosures, communications, and trade acknowledgement and 
verification are estimated in 2016 dollars as $392,533.33 
(disclosures) + $89,094 (trade acknowledgement and verification) = 
$481,627.33, and adjusted by 1.05 to $505,708.70 in current dollars. 
The cost associated with disclosures has been adjusted to account 
for the fact that the disclosures of clearing rights and daily mark 
are not part of proposed paragraph (d)(1)(ii)(B)(1) of Rule 3a71-3. 
Ongoing costs associated with portfolio reconciliation are estimated 
in current dollars as $17,180. Per entity ongoing costs = 
$505,708.70 + $17,180 = $522,888.70 or approximately $522,900.
    \369\ Aggregate ongoing costs = Per entity ongoing costs of 
$522,900 x 24 entities = $12,549,600.
---------------------------------------------------------------------------

    Under Alternative 1, the registered security-based swap dealer also 
would be responsible for creating and maintaining books and records 
related to the transactions subject to the exception that are required, 
as applicable, by Exchange Act Rules 18a-5 and 18a-6, including any 
books and records requirements relating to the provisions specified in 
proposed paragraph (d)(1)(iii)(B).\370\ If the registered security-
based swap dealer is also a registered broker-dealer, then it would 
need to comply with Exchange Act Rules 17a-3 and 17a-4. The Commission 
estimates the initial costs associated with these rules to be 
approximately $437,444 per entity,\371\ or up to $10,498,656 in 
aggregate,\372\ and ongoing costs associated with these rules of 
approximately $101,278 per entity,\373\ or up to $2,430,672 in

[[Page 24258]]

aggregate.\374\ If the registered security-based swap dealer is a 
stand-alone registered security-based swap dealer, then it would need 
to comply with Exchange Act Rules 18a-5 and 18a-6. The Commission 
estimates the initial costs associated with these rules to be 
approximately $231,988 per entity,\375\ or up to $5,567,712 in 
aggregate,\376\ and ongoing costs associated with these rules of 
approximately $59,541 per entity,\377\ or up to $1,428,984 in 
aggregate.\378\ The discussion in part VII.A.7 above suggests that a 
number of the persons that may make use of the proposed exception 
likely would be banks.\379\ In light of this finding, the Commission 
also presents cost estimates associated with Exchange Act Rules 18a-5 
and 18a-6 under the assumption that the registered security-based swap 
dealer is a bank registered security-based swap dealer. The Commission 
estimates the initial costs associated with these rules to be 
approximately $178,534 per entity,\380\ or up to $4,284,816 in 
aggregate,\381\ and ongoing costs associated with these rules of 
approximately $42,952 per entity,\382\ or up to $1,030,848 in 
aggregate.\383\
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    \370\ See proposed paragraph (d)(1)(iii)(B) of Rule 3a71-3.
    \371\ The per entity initial costs associated with proposed 
amendments to Exchange Act Rule 17a-3 (assuming the entity is not an 
ANC broker-dealer) = 150 hours x $283/hour national hourly rate for 
a compliance manager = $42,450 (See Recordkeeping Proposing Release, 
79 FR at 25262 for burden hours). The $283 per hour figure for a 
compliance manager is from SIFMA's Management & Professional 
Earnings in the Securities Industry 2013, as modified by Commission 
staff to account for an 1,800-hour work-year, and multiplied by 5.35 
to account for bonuses, firm size, employee benefits, and overhead. 
See Recordkeeping Proposing Release, 79 FR at 25295 n.1403.
    To estimate the per entity initial costs associated with current 
Exchange Act Rule 17a-3, the Commission assumes these costs are 
proportional to the per entity ongoing costs associated with current 
Exchange Act Rule 17a-3. Further, the Commission assumes that this 
proportion is equal to the proportion of per entity initial costs to 
per entity ongoing costs associated with proposed amendments to 
Exchange Act Rule 17a-3. As discussed in note 373 infra, the 
Commission estimates the per entity ongoing costs associated with 
proposed amendments to Exchange Act Rule 17a-3 as $12,288. The 
proportion of per entity initial costs to per entity ongoing costs 
associated with proposed amendments to Exchange Act Rule 17a-3 is 
$42,450/$12,288 or approximately 3.5. The per entity initial costs 
associated with current Exchange Act Rule 17a-3 is estimated as 3.5 
x $53,880.83 (per entity ongoing costs associated with current 
Exchange Act Rule 17a-3, see note 373 infra) = $188,582.91.
    The per entity initial costs associated with proposed amendments 
to Exchange Act Rule 17a-4 (assuming the entity is not an ANC 
broker-dealer) = 156 hours x $312/hour national hourly rate for a 
senior database administrator = $48,672. (See Recordkeeping 
Proposing Release, 79 FR at 25265 for burden hours). The $312 per 
hour figure for a senior database administrator is from SIFMA's 
Management & Professional Earnings in the Securities Industry 2013, 
as modified by Commission staff to account for an 1,800-hour work-
year, and multiplied by 5.35 to account for bonuses, firm size, 
employee benefits, and overhead.
    To estimate the per entity initial costs associated with current 
Exchange Act Rule 17a-4, the Commission assumes these costs are 
proportional to the per entity ongoing costs associated with current 
Exchange Act Rule 17a-4. Further, the Commission assumes that this 
proportion is equal to the proportion of per entity initial costs to 
per entity ongoing costs associated with proposed amendments to 
Exchange Act Rule 17a-4. As discussed in note 373 infra, the 
Commission estimates the per entity ongoing costs associated with 
proposed amendments to Exchange Act Rule 17a-4 as $7,928. The 
proportion of per entity initial costs to per entity ongoing costs 
associated with proposed amendments to Exchange Act Rule 17a-4 is 
$48,672/$7,928 or approximately 6.2. The per entity initial costs 
associated with current Exchange Act Rule 17a-4 is estimated as 6.2 
- $21,448 (per entity ongoing costs associated with current Exchange 
Act Rule 17a-4, see note 373 infra) = $132,977.60.
    The per entity initial costs associated with amendments to 
Exchange Act Rules 17a-3 and 17a-4 = $42,450 + $188,582.91 + 48,672 
+ $132,977.60 = $412,682.51, and adjusted by 1.06 CPI inflation 
between 2014 and 2018 (from the Bureau of Labor Statistics) to 
$437,443.46 in current dollars or approximately $437,444.
    \372\ Aggregate initial costs = Per entity initial costs of 
$437,444 x 24 entities = $10,498,656.
    \373\ The per entity ongoing costs associated with current 
Exchange Act Rule 17a-3 = 673.40 hours x $64/hour national hourly 
rate for a compliance clerk + per entity external costs of 
$10,783.23 = $53,880.83. Per entity ongoing burden hours = total 
burden hours of 2,763,612/4,104 broker-dealer respondents = 673.40 
hours. Per entity external costs = total external costs of 
$44,254,361/4,104 broker-dealer respondents = $10,783.23. For number 
of respondents, total burden hours, and total external costs, see 
Commission, ``Supporting Statement for the Paperwork Reduction Act 
Information Collection Submission for Rule 17a-3'' (Mar. 9, 2017), 
available at https://www.reginfo.gov/public/do/DownloadDocument?objectID=72125401. The $64 per hour figure for a 
compliance clerk is from SIFMA's Office Salaries in the Securities 
Industry 2013, as modified by Commission staff to account for an 
1,800-hour work-year, and multiplied by 2.93 to account for bonuses, 
firm size, employee benefits, and overhead.
    The per entity ongoing costs associated with proposed amendments 
to Exchange Act Rule 17a-3 (assuming the entity is not an ANC 
broker-dealer) = 192 hours x $64/hour national hourly rate for a 
compliance clerk = $12,288 (See Recordkeeping Proposing Release, 79 
FR at 25262 for burden hours).
    The per entity ongoing costs associated with current Exchange 
Act Rule 17a-4 = 257 hours x $64/hour national hourly rate for a 
compliance clerk + per entity external costs of $5,000 = $21,448. 
See Commission, ``Supporting Statement for the Paperwork Reduction 
Act Information Collection Submission for Rule 17a-4'' (Oct. 19, 
2016), available at https://www.reginfo.gov/public/do/DownloadDocument?objectID=68823501.
    The per entity on going costs associated with proposed 
amendments to Exchange Act Rule 17a-4 (assuming the entity is not an 
ANC broker-dealer) = 72 hours x $64/hour national hourly rate for a 
compliance clerk + per entity external costs of $3,320 = $7,928 (See 
Recordkeeping Proposing Release, 79 FR at 25265 for burden hours and 
external costs).
    The total per entity ongoing costs = $53,880.83 + $12,288 + 
$21,448 + $7,928 = $95,544.83, and adjusted by 1.06 CPI inflation 
between 2014 and 2018 (from the Bureau of Labor Statistics) to 
$101,277.52 in current dollars or approximately $101,278.
    \374\ Aggregate ongoing costs = Per entity ongoing costs of 
$101,278 x 24 entities = $2,430,672.
    \375\ The per entity initial costs associated with Exchange Act 
Rule 18a-5 (assuming that the stand-alone registered security-based 
swap dealer does not have a prudential regulator and is not an ANC 
stand-alone registered security-based swap dealer) = 320 hours x 
$283/hour national hourly rate for a compliance manager + per entity 
external costs of $1,000 = $91,560 (See Recordkeeping Proposing 
Release, 79 FR at 25262 for burden hours and external costs). See 
note 371, supra, for a derivation of the national hourly rate for a 
compliance manager.
    The per entity initial costs associated with Exchange Act Rule 
18a-6 (assuming that the stand-alone registered security-based swap 
dealer does not have a prudential regulator and is not an ANC stand-
alone registered security-based swap dealer) = 408 hours x $312/hour 
national hourly rate for a senior database administrator = $127,296 
(See Recordkeeping Proposing Release, 79 FR at 25265 for burden 
hours). See note 371, supra, for a derivation of the national hourly 
rate for a senior database administrator.
    The per entity initial costs associated with Exchange Act Rules 
18a-5 and 18a-6 = $91,560 + 127,296 = $218,856, and adjusted by 1.06 
CPI inflation between 2014 and 2018 (from the Bureau of Labor 
Statistics) to $231,987.36 in current dollars or approximately 
$231,988.
    \376\ Aggregate initial costs = Per entity initial costs of 
$231,988 x 24 entities = $5,567,712.
    \377\ The per entity ongoing costs associated with Exchange Act 
Rule 18a-5 (assuming that the stand-alone registered security-based 
swap dealer does not have a prudential regulator and is not an ANC 
stand-alone registered security-based swap dealer) = 400 hours x 
$64/hour national hourly rate for a compliance clerk + per entity 
external costs of $4,650 = $30,250 (See Recordkeeping Proposing 
Release, 79 FR at 25262 for burden hours and external costs). See 
note 373, supra, for a derivation of the national hourly rate for a 
compliance clerk.
    The per entity ongoing costs associated with Exchange Act Rule 
18a-6 (assuming that the stand-alone registered security-based swap 
dealer does not have a prudential regulator and is not an ANC stand-
alone registered security-based swap dealer) = 310 hours x $64/hour 
national hourly rate for a compliance clerk + per entity external 
costs of $6,080 = $25,920. (See Recordkeeping Proposing Release, 79 
FR at 25265 for burden hours and external costs).
    The per entity ongoing costs associated with Exchange Act Rules 
18a-5 and 18a-6 = $30,250 + 25,920 = $56,170, and adjusted by 1.06 
CPI inflation between 2014 and 2018 (from the Bureau of Labor 
Statistics) to $59,540.20 in current dollars or approximately 
$59,541.
    \378\ Aggregate ongoing costs = Per entity ongoing costs of 
$59,541 x 24 entities = $1,428,984.
    \379\ See part VII.A.7, supra, stating that of the 12 persons 
identified in 2017 TIW data as potential users of the proposed 
exception, eight are banks.
    \380\ The per entity initial costs associated with Exchange Act 
Rule 18a-5 (assuming that the registered security-based swap dealer 
has a prudential regulator) = 260 hours x $283/hour national hourly 
rate for a compliance manager = $73,580 (See Recordkeeping Proposing 
Release, 79 FR at 25262 for burden hours). See note 371, supra, for 
a derivation of the national hourly rate for a compliance manager.
    The per entity initial costs associated with Exchange Act Rule 
18a-6 (assuming that the registered security-based swap dealer has a 
prudential regulator) = 304 hours x $312/hour national hourly rate 
for a senior database administrator = $94,848 (See Recordkeeping 
Proposing Release, 79 FR at 25265 for burden hours). See note 371, 
supra, for a derivation of the national hourly rate for a senior 
database administrator.
    The per entity initial costs associated with Exchange Act Rules 
18a-5 and 18a-6 = $73,580 + $94,848 = $168,428, and adjusted by 1.06 
CPI inflation between 2014 and 2018 (from the Bureau of Labor 
Statistics) to $178,533.68 in current dollars or approximately 
$178,534.
    \381\ Aggregate initial costs = Per entity initial costs of 
$178,534 x 24 entities = $4,284,816.
    \382\ The per entity ongoing costs associated with Exchange Act 
Rule 18a-5 (assuming that the registered security-based swap dealer 
has a prudential regulator) = 325 hours x $64/hour national hourly 
rate for a compliance clerk = $20,800 (See Recordkeeping Proposing 
Release, 79 FR at 25262 for burden hours). See note 373, supra, for 
a derivation of the national hourly rate for a compliance clerk.
    The per entity ongoing costs associated with Exchange Act Rule 
18a-6 (assuming that the registered security-based swap dealer has a 
prudential regulator) = 230 hours x $64/hour national hourly rate 
for a compliance clerk + per entity external costs of $5,000 = 
$19,720. (See Recordkeeping Proposing Release, 79 FR at 25265 for 
burden hours and external costs).
    The per entity ongoing costs associated with Exchange Act Rules 
18a-5 and 18a-6 = $20,800 + 19,720 = $40,520, and adjusted by 1.06 
CPI inflation between 2014 and 2018 (from the Bureau of Labor 
Statistics) to $42,951.20 in current dollars or approximately 
$42,952.
    \383\ Aggregate ongoing costs = Per entity ongoing costs of 
$42,952 x 24 entities = $1,030,848.
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    The registered security-based swap dealer also must obtain from the 
non-U.S. person relying on the exception, and maintain, documentation 
encompassing all terms governing the trading relationship between the 
non-U.S. person and its counterparty relating to the transactions 
subject to this exception, including, without limitation, terms 
addressing payment obligations, netting of payments, events of default 
or other termination events, calculation and netting of obligations 
upon termination, transfer of rights and obligations, allocation of any 
applicable regulatory reporting obligations, governing law, valuation, 
and dispute resolution.\384\ The Commission preliminarily believes that 
both the registered entity and its non-U.S. affiliate will incur costs 
to comply with this condition. However as discussed above, the 
Commission preliminarily believes that the costs incurred by the 
registered entity would be passed on to the non-U.S. affiliate.\385\ 
For registered entities, the Commission estimates the initial costs 
associated with this condition to be approximately $3,000 per 
registered entity,\386\ or up to $72,000 in aggregate,\387\ and ongoing 
costs associated with this condition of approximately $3,528 per 
registered entity,\388\ or up to $84,672 in

[[Page 24259]]

aggregate.\389\ For non-U.S. entities, the Commission estimates the 
initial costs associated with this condition to be approximately $3,000 
per non-U.S. entity,\390\ or up to $72,000 in aggregate,\391\ and 
ongoing costs associated with this condition of approximately $7,056 
per non-U.S. entity,\392\ or up to $169,344 in aggregate.\393\
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    \384\ See note 370, supra.
    \385\ See part VIII.A.4.e, infra.
    \386\ Per entity initial costs = 10 hours x $283/hour national 
hourly rate for a compliance manager = $2,830. See note 371, supra, 
for a derivation of the national hourly rate for a compliance 
manager. Adjusting for CPI inflation using data from the Bureau of 
Labor Statistics between 2014 and 2018, the per entity initial costs 
in current dollars = $2,830 x 1.06 = $2,999.80 or approximately 
$3,000.
    \387\ Aggregate initial costs = Per entity initial costs of 
$3,000 x 24 entities = $72,000.
    \388\ Per entity ongoing costs = 1 hour x 52 weeks x $64/hour 
national hourly rate for a compliance clerk= $3,328. See note 373, 
supra, for a derivation of the national hourly rate for a compliance 
clerk. Adjusting for CPI inflation using data from the Bureau of 
Labor Statistics between 2014 and 2018, the per entity initial costs 
in current dollars = $3,328 x 1.06 = $3,527.68 or approximately 
$3,528.
    \389\ Aggregate ongoing costs = Per entity ongoing costs of 
$3,528 x 24 entities = $84,672.
    \390\ Per entity initial costs in current dollars = 10 hours x 
$283/hour national hourly rate for a compliance manager x 1.06 CPI 
inflation adjustment = $2,999.80 or approximately $3,000. See note 
386, supra.
    \391\ Aggregate initial costs = Per entity initial costs of 
$3,000 x 24 entities = $72,000.
    \392\ Per entity ongoing costs in current dollars = 2 hours x 52 
weeks x $64/hour national hourly rate for a compliance clerk x 1.06 
CPI inflation adjustment = $7,055.36 or approximately $7,056. See 
note 388, supra.
    \393\ Aggregate ongoing costs = Per entity ongoing costs of 
$7,056 x 24 entities = $169,344.
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    The registered security-based swap dealer also would be responsible 
for obtaining from the non-U.S. person relying on this exception 
written consent to service of process for any civil action brought by 
or proceeding before the Commission, providing that process may be 
served on the non-U.S. person by service on the registered entity in 
the manner set forth in the registered entity's current Form SBSE, 
SBSE-A, or SBSE-BD, as applicable.\394\ The Commission preliminarily 
believes that both the registered entity and its non-U.S. affiliate 
will incur one-time costs to comply with this condition.\395\ For 
registered entities, the Commission estimates the one-time costs 
associated with this condition to be approximately $409 per registered 
entity,\396\ or up to $9,816 in aggregate.\397\ For non-U.S. entities, 
the Commission estimates the one-time costs associated with this 
condition to be approximately $409 per non-U.S. entity,\398\ or up to 
$9,816 in aggregate.\399\ To the extent both parties agree to use an 
industry-standard consent provision,\400\ these costs may be limited.
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    \394\ See proposed paragraph (d)(1)(iii)(B)(3) of Rule 3a71-3.
    \395\ See part VIII.A.2.f, infra. The Commission assumes that 
the burden will be allocated equally between the registered entity 
and the non-U.S. affiliate.
    \396\ Per entity initial costs = 1 hour x $409/hour for national 
hourly rate for an attorney = $409. The hourly cost figure is based 
upon data from SIFMA's Management & Professional Earnings in the 
Securities Industry 2013 (modified by the Commission staff to adjust 
for inflation and to account for an 1,800-hour work-year and 
multiplied by 5.35 to account for bonuses, firm size, employee 
benefits, and overhead).
    \397\ Aggregate initial costs = Per entity initial costs of $409 
x 24 entities = $9,816.
    \398\ See note 396, supra.
    \399\ See note 397 supra.
    \400\ See part VIII.A.2.f, infra.
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    Under Alternative 2, if a non-U.S. person, or its affiliated group, 
seeks to utilize the exception, that person, or its affiliated group, 
may incur the cost of registering one entity as a broker-dealer (if 
there otherwise is not an affiliated broker-dealer present) or as a 
security-based swap dealer. Because the conditions for using a 
security-based swap dealer to utilize the exception under Alternative 1 
are identical to the conditions under Alternative 2, non-U.S. persons 
who avail themselves of the proposed exception by registering a 
security-based swap dealer under Alternative 2 would incur the same 
costs described above for registering a security-based swap dealer 
under Alternative 1.
    Alternatively, a non-U.S. person could choose to use the exception 
permitted under Alternative 2 by using a registered broker-dealer to 
conduct U.S. activity. A non-U.S. person choosing this option could 
incur initial and ongoing costs associated with registering an 
affiliate as a broker-dealer. The Commission preliminarily estimates 
the costs of registering a new broker-dealer to be approximately 
$291,500,\401\ and estimate ongoing costs of meeting registration 
requirements as a broker-dealer to be approximately $53,000 \402\ per 
year. Based on the Commission's estimate that up to 24 \403\ persons 
might avail themselves of the proposed exception and assuming that 
these persons choose to do so by using registered broker-dealers 
permitted under Alternative 2, the Commission preliminarily estimates 
the aggregate costs of broker-dealer registration to be approximately 
$7 million \404\ and the aggregate ongoing costs of meeting broker-
dealer registration requirements to be approximately $1.272 million 
\405\ per year. Non-U.S. persons meeting the conditions of the proposed 
exception under Alternative 2 by using a registered broker-dealer would 
additionally incur the cost of complying with applicable requirements 
associated with the registered broker-dealer status, including 
maintaining a minimum level of net capital. The Commission estimates 
the ongoing cost of this capital to be approximately $35,300 \406\ per 
entity. If the up to 24 persons that might use the proposed exception 
choose to do so by using registered broker-dealers permitted under 
Alternative 2, the estimated aggregate ongoing cost of capital is 
approximately $847,200.\407\ To the extent that this capital is held in 
liquid assets \408\ that generate a positive return to the registered 
broker-dealer, that positive return would offset, at least in part, the 
ongoing cost of capital.
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    \401\ The Commission previously estimated that an entity would 
incur costs of $275,000 to register as a broker-dealer and become a 
member of a national securities association. See Crowdfunding, 
Exchange Act Release No. 76324 (October 30, 2015), 80 FR 71388 
(November 16, 2015) (``Regulation Crowdfunding Adopting Release''), 
80 FR at 71509. Accounting for CPI inflation between 2015 and 2018, 
the Commission now estimates that an entity would incur costs of 
$275,000 x 1.06 = $291,500 to register as a broker-dealer and become 
a member of a national securities association.
    \402\ The Commission previously estimated that an entity would 
incur ongoing annual costs of $50,000 to maintain broker-dealer 
registration and membership of a national securities association. 
See Regulation Crowdfunding Adopting Release, 80 FR at 71509. 
Accounting for CPI inflation between 2015 and 2018, the Commission 
now estimates that an entity would incur ongoing annual costs of 
$50,000 x 1.06 = $53,000 to maintain broker-dealer registration and 
membership of a national securities association. The estimation of 
ongoing annual costs is based on the assumption that the entity 
would use existing staff to perform the functions of the registered 
broker-dealer and would not incur incremental costs to hire new 
staff. To the extent that the entity chooses to hire new staff, the 
ongoing annual costs may be higher.
    \403\ See part VII.A.7, supra.
    \404\ Aggregate broker-dealer registration costs calculated as 
$291,500 x 24 entities = $6,996,000 or approximately $7,000,000.
    \405\ Aggregate ongoing costs of meeting broker-dealer 
registration requirements calculated as = $53,000 x 24 entities = 
$1,272,000.
    \406\ The Commission assumes that the registered entity must 
maintain a minimum of $250,000 in net capital. See Exchange Act Rule 
15c3-1. The Commission preliminarily believes that the methodology 
for estimating the cost of capital of a registered security-based 
swap dealer under proposed Alternative 1 is also appropriate for 
estimating the cost of capital of a registered broker-dealer under 
proposed Alternative 2 (see note 362, supra). Using the historical 
return on equity for all U.S. banks, the Commission calculated the 
cost of capital as 11.26% x $250,000 = $28,150 or approximately 
$28,200. The Commission preliminarily believes that use of the 
historical return on equity for U.S. banks adequately captures the 
cost of capital because of the 12 persons that potentially may use 
the proposed exception, 8 are banks and 3 have bank affiliates. See 
part VII.A.7 supra. To the extent that this approach does not 
adequately capture the cost of capital of persons that are not banks 
or have no bank affiliates, the Commission supplements the 
estimation by also using the annual stock returns on financial 
stocks to calculate the cost of capital. With this second approach, 
the Commission calculated the cost of capital as 16.96% x $250,000 = 
$42,400. The final estimate of the cost of capital is the average of 
$28,200 and $42,400 = (28,200 + 42,400)/2 = $35,300.
    \407\ Aggregate ongoing cost of capital calculated as $35,300 x 
24 entities = $847,200.
    \408\ See Exchange Act Rule 15c3-1.
---------------------------------------------------------------------------

    All non-U.S. persons using the proposed exception under Alternative 
2 would incur the cost of complying with security-based swap dealer 
requirements related to disclosures of risks, characteristics, 
incentives, and conflicts of interest, suitability,

[[Page 24260]]

communications, trade acknowledgment and verification, and portfolio 
reconciliation; \409\ and requirements related to providing the 
Commission access to books, records and testimony \410\ quantified 
above in connection with Alternative 1, regardless of whether these 
persons meet the conditions of Alternative 2 using a registered broker-
dealer or a registered security-based swap dealer.
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    \409\ See Alternative 2 proposed paragraph (d)(1)(ii)(B) of Rule 
3a71-3.
    \410\ See Alternative 2 proposed paragraph (d)(1)(iii)(B) and 
(C) of Rule 3a71-3.
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    To the extent that a non-U.S. person has an existing, registered 
broker-dealer affiliate \411\ and uses that affiliate to rely on the 
conditional exception under Alternative 2, the non-U.S. person would 
not incur costs associated with registering a broker-dealer and the 
incremental compliance cost would be limited to costs associated with 
complying with the restricted set of security-based swap dealer 
requirements as discussed above.
---------------------------------------------------------------------------

    \411\ Analyses of 2017 TIW data indicate that of the six non-
U.S. persons that potentially may use the proposed exception, four 
have majority-owned registered broker-dealer affiliates. See part 
VII.A.7, supra.
---------------------------------------------------------------------------

    Although costly, the Commission preliminarily believes that the 
conditions associated with the proposed exception afford appropriate 
counterparty protections under Title VII and the Commission has 
considered the benefits of these specific Rule provisions in prior 
Commission releases.\412\ In the context of the proposed exception, 
these conditions would benefit non-U.S. counterparties. Moreover, the 
registered entity that is a majority-owned affiliate of the non-U.S. 
person availing itself of the proposed exception under Alternative 1 or 
Alternative 2 would be required to disclose to non-U.S. counterparties, 
in connection with each transaction covered by the proposed exception, 
that the non-U.S. person is not registered with the Commission and that 
certain Exchange Act provisions or rules addressing the regulation of 
security-based swaps do not apply in connection with the transaction. 
The Commission preliminarily believes that non-U.S. persons would incur 
an upfront cost of $713,160 and 2,400 hours \413\ to develop 
appropriate disclosures, but that non-U.S. persons using the proposed 
exception would integrate these disclosures into existing trading 
systems so that the ongoing costs of delivering these disclosures would 
be insubstantial. Furthermore, disclosures are only required when the 
identity of the counterparty is known to the registered entity, so 
anonymous transactions would not be subject to this requirement.\414\
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    \412\ See Business Conduct Adopting Release, Trade 
Acknowledgement and Verification Adopting Release, Recordkeeping 
Proposing Release, and Risk Mitigation Proposing Release.
    \413\ See part VIII.A.4.a and note 525, infra stating that each 
non-U.S. person would spend 100 hours and incur approximate costs of 
$29,715 to develop policies and procedures to help ensure that 
appropriate disclosures are provided. The aggregate upfront costs 
are = $29,715 x 24 entities = $713,160. The aggregate burden hours 
are = 100 x 24 entities = 2,400 hours.
    \414\ See note 148, supra, for circumstances in which the 
registered entity engaged would not know the identity of the 
counterparty.
---------------------------------------------------------------------------

    These required disclosures would benefit non-U.S. counterparties by 
informing them of the regulatory treatment of transactions under the 
proposed exception. To the extent that non-U.S. counterparties value 
elements of the Title VII regulatory framework that do not apply to 
transactions under the proposed exception, they may attempt to 
negotiate more favorable prices to compensate themselves for the 
additional risks they may perceive. Alternatively, non-U.S. 
counterparties that prefer transactions fully covered by the 
Commission's security-based swap regulatory framework could search for 
a registered security-based swap dealer willing to transact with all 
Title VII protections in place.
    In connection with the proposal, a situation may arise where some 
jurisdictions are designated by order as listed jurisdictions before 
other jurisdictions, whether the designation is on the Commission's own 
initiative or in response to applications. To the extent that some 
jurisdictions become listed jurisdictions earlier than other 
jurisdictions, non-U.S. persons operating in jurisdictions that become 
listed jurisdictions earlier than other jurisdictions potentially could 
rely on the conditional exception sooner than, and may gain a 
competitive advantage over, non-U.S. persons operating in jurisdictions 
that become listed jurisdictions at a later date. In particular, non-
U.S. persons operating in jurisdictions that become listed 
jurisdictions earlier than other jurisdictions and that rely on the 
exception may incur lower regulatory burdens \415\ than non-U.S. 
persons operating in jurisdictions that become listed jurisdictions at 
a later date. That said, this cost advantage may be limited if non-U.S. 
persons operating in jurisdictions that currently are not listed 
jurisdictions could set up operations in a listed jurisdiction to rely 
on the exception.
---------------------------------------------------------------------------

    \415\ These non-U.S. persons may incur lower regulatory burdens 
to the extent that they avoid the costs of assessing market-facing 
activity and the costs of compliance with conditions set forth under 
the proposed exception are lower than the compliance costs in the 
absence of the proposed amendment and the costs of business 
restructuring. In contrast, non-U.S. persons in unlisted 
jurisdictions may have to incur the costs of assessing market-facing 
activity. Further, for these non-U.S. persons, the costs of 
complying with the full set of security-based swap dealer 
requirements and business restructuring may be higher than 
compliance costs associated with the proposed exception.
---------------------------------------------------------------------------

    An application for listed jurisdiction designation would be filed 
pursuant to Rule 0-13 and, like the proposed exception, is purely 
voluntary. Thus, the Commission expects that, to the extent that market 
participants submit applications for designation of one or more listed 
jurisdictions, non-U.S. persons would do so only to the extent that 
they believe that compliance with each relevant jurisdiction's 
regulatory regime, in combination with the other conditions of the 
proposed exception, was less burdensome than the alternatives of (i) 
incurring assessment costs related to de minimis calculations and 
potential compliance with the Title VII regulatory framework for 
dealers, and (ii) restructuring their security-based swap businesses to 
avoid arranging, negotiating, or executing transactions with non-U.S. 
counterparties using personnel located in the United States. The 
Commission estimates that three non-U.S. persons that seek to rely on 
the exception would file listed jurisdiction applications.\416\ The 
Commission estimates the costs associated with each application to be 
approximately $115,920, or up to $347,760 in aggregate.\417\ The 
Commission notes that any costs incurred by a non-U.S. person in filing 
an application for a listed jurisdiction may be obviated in part by the 
provision that permits a foreign financial regulatory authority or 
authorities supervising such a non-U.S. person or its security-based 
swap activities to file such an application. Further, to the extent 
that certain jurisdictions are designated as listed jurisdictions if 
this

[[Page 24261]]

proposed amendment is adopted, the non-U.S. persons (or their financial 
regulatory authorities) in these jurisdictions may avoid the costs of 
filing an application.
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    \416\ See part VIII.A.4.g, infra.
    \417\ The Commission assumes that the costs associated with 
filing an application for a qualified jurisdiction designation are 
the same as the costs associated with filing a substituted 
compliance request with respect to business conduct requirements. 
See Business Conduct Adopting Release, 81 FR at 30097 and 30137 and 
part VIII.A.4.g, infra. The Commission estimates the per entity 
costs of filing an application in 2016 dollars as: $30,400 (internal 
counsel) + $80,000 (external counsel) = $110,400. Adjusted for CPI 
inflation from 2016 to 2018, the per entity costs of filing an 
application in current dollars are = $110,400 x 1.05 = $115,920. The 
aggregate costs of filing applications = Per entity costs of 
$115,920 x 3 entities = $347,760.
---------------------------------------------------------------------------

b. Title VII Programmatic Costs and Benefits
    The proposed exclusion of transactions that must be counted against 
the de minimis threshold will affect the set of registered security-
based swap dealers subject to security-based swap dealer regulation and 
in turn determine the allocation and flow of programmatic costs and 
benefits arising from such regulation.
    The Commission preliminarily believes that requiring a non-U.S. 
person that wishes to make use of the proposed exception to be subject 
to the margin and capital requirements of a listed jurisdiction when 
engaging in transactions subject to the proposed exception would 
support the Title VII regime's programmatic benefit of mitigating risks 
in foreign security-based swap markets that may flow into U.S. 
financial markets through liquidity spillovers.\418\ Specifically, 
proposed Rule 3a71-3(d)(1)(v) under both alternatives would require a 
non-U.S. person relying on the proposed exception to be subject to the 
margin and capital requirements of a listed jurisdiction when engaging 
in transactions subject to the proposed exception. As discussed 
earlier,\419\ the listed jurisdiction condition is intended to help 
avoid creating an incentive for dealers to book their transactions into 
entities that solely are subject to the regulation of jurisdictions 
that do not effectively require security-based swap dealers or 
comparable entities to meet certain financial responsibility standards. 
Absent this type of condition, non-U.S. persons that rely on the 
proposed exception could gain a competitive advantage because they 
would be able to conduct security-based swap dealing activity in the 
United States without being subject to even minimal financial 
responsibility standards and incurring the associated compliance costs. 
Such non-U.S. persons potentially could provide liquidity to market 
participants at more favorable prices, but potentially also at greater 
risk, compared to registered security-based swap dealers. Generally, 
this proposed condition would benefit non-U.S. counterparties by 
providing them with assurances that the non-U.S. person has sufficient 
financial resources to engage in security-based swap activity and that 
the non-U.S. person's risk exposures to other counterparties are 
appropriately managed, supporting the Title VII regime's programmatic 
benefit of preventing risks in foreign security-based swap markets from 
flowing into U.S. financial markets through liquidity spillovers.
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    \418\ As the Commission noted elsewhere, in a highly 
concentrated global security-based swap market, the failure of a key 
liquidity provider poses a particularly high risk of propagating 
liquidity shocks not only to its counterparties but to other 
participants, including other dealers. To the extent that U.S. 
persons are significant participants in the market, the liquidity 
shock may propagate to these U.S. persons, and from these U.S. 
persons to the U.S. financial system as a whole, even if the 
liquidity shock originates with the failure of a non-U.S. person 
liquidity provider. See ANE Adopting Release, 81 FR at 8611-12, 
8630.
    \419\ See III.B.5, supra.
---------------------------------------------------------------------------

    The Commission preliminarily believes that another potential 
programmatic benefit of the proposed amendment is to reduce market 
fragmentation and associated distortions. In the ANE Adopting Release, 
the Commission noted that the ``arranged, negotiated, or executed'' 
counting requirement may cause non-U.S. dealers to restructure their 
operations to avoid using U.S. personnel in order to avoid triggering 
security-based swap dealer obligations. Such restructuring may result 
in market fragmentation. Nevertheless, to the extent that the 
restructuring costs incurred by non-U.S. dealers offset the benefits 
from avoiding dealer registration, the likelihood or extent of market 
fragmentation and associated distortions may be attenuated, but not 
eliminated.\420\ The Commission believes that the proposed amendment, 
by permitting a non-U.S. person further flexibility to opt into a Title 
VII compliance framework that is compatible with its existing business 
practices, could further reduce the incentives of non-U.S. persons to 
restructure and further reduce the likelihood or extent of market 
fragmentation and associated distortions.
---------------------------------------------------------------------------

    \420\ See ANE Adopting Release, 81 FR at 8630.
---------------------------------------------------------------------------

    The above discussion notwithstanding, the Commission is mindful 
that the likelihood of market fragmentation and associated distortions 
might increase if U.S.-based dealing entities rely on the conditional 
exception by booking transactions with non-U.S. counterparties into 
non-U.S. affiliates, thereby avoiding the application of the full set 
of security-based swap dealer requirements to those transactions and 
the associated security-based swaps.\421\ As discussed further below, 
U.S.-based dealing entities that use the conditional exception in this 
manner may incur lower compliance costs when providing liquidity to 
non-U.S. counterparties and may decide to limit their liquidity 
provision only to non-U.S. counterparties. To the extent that these 
U.S.-based dealing entities choose to provide liquidity only to non-
U.S. counterparties, security-based swap liquidity may fragment into 
two pools: One pool that caters to U.S. counterparties and another pool 
that caters to non-U.S. counterparties.
---------------------------------------------------------------------------

    \421\ See parts III.A and VII.A.7, supra.
---------------------------------------------------------------------------

    The proposed amendment could promote competition in the security-
based swap market to the extent that competitive effects arise from 
differences between the full set of requirements for registered 
security-based swap dealers (that otherwise would apply to the non-U.S. 
entity) and the conditions applicable to the registered U.S. entity 
under the proposed amendment. As discussed more fully below,\422\ a 
non-U.S. person dealer that uses the exception may become more 
competitive in the market for liquidity provision because (a) the non-
U.S. person dealer may incur lower compliance costs when providing 
liquidity to non-U.S. counterparties and (b) non-U.S. counterparties 
may incur lower costs when transacting with the non-U.S. person dealer. 
The set of dealing entities that benefit from such competitive effects 
might expand to the extent that U.S.-based dealing entities that are 
primarily or wholly responsible for managing interactions with non-U.S. 
counterparties may rely on the conditional exception by booking 
transactions into non-U.S. affiliates.\423\ Nevertheless, this 
competitive effect may be attenuated by the condition that makes the 
exception available only to non-U.S. persons that are subject to the 
margin and capital requirements of a listed jurisdiction.
---------------------------------------------------------------------------

    \422\ See part VII.B.2, infra.
    \423\ See part III.A, supra.
---------------------------------------------------------------------------

    The proposed amendment potentially could limit the programmatic 
benefits of Title VII regulation because the non-U.S. person taking 
advantage of the conditional exception would not be subject to the full 
suite of Title VII business conduct and financial responsibility 
requirements. This limitation of programmatic benefits might increase 
to the extent that U.S.-based dealing entities that primarily or wholly 
are responsible for managing interactions with non-U.S. counterparties 
may rely on the conditional exception by booking transactions into non-
U.S. affiliates.\424\ Because the non-U.S. person would not be subject 
to Title VII business conduct

[[Page 24262]]

requirements, the associated Title VII counterparty protections would 
not apply to the non-U.S. person's communications with non-U.S. 
counterparties. The non-U.S. counterparties thus would not benefit from 
those protections in their dealings with the non-U.S. person relying on 
the exception, notwithstanding the U.S. arranging, negotiating, and 
executing activity that led to the transactions at issue.\425\
---------------------------------------------------------------------------

    \424\ See id.
    \425\ As discussed in part III.A, supra, the antifraud 
provisions of the federal securities laws and certain relevant Title 
VII requirements would continue to apply to the transactions.
---------------------------------------------------------------------------

    Similarly, Title VII financial responsibility requirements 
applicable to security-based swap dealers would not apply to the non-
U.S. person, notwithstanding that the transactions would result from 
arranging, negotiating, and executing activity in the United States. To 
the extent that the financial responsibility requirements serve to 
prevent the spread to U.S. financial markets of financial contagion 
that originates from the failure of one or more non-U.S. persons 
engaged in arranging, negotiating, and executing activity in the United 
States,\426\ the fact that these requirements would not apply to non-
U.S. persons taking advantage of the conditional exception could limit 
the ability of the Title VII regulatory regime to protect U.S. 
financial markets from financial contagion. This concern would be 
mitigated by the condition that makes the exception available only to 
non-U.S. persons that are subject to the margin and capital 
requirements of a listed jurisdiction, which would afford the 
Commission flexibility to designate jurisdictions with appropriately 
robust financial responsibility requirements as listed jurisdictions. 
More generally, competitive disparities and limits to the programmatic 
effects of Title VII may be offset to the extent that non-U.S. 
counterparties value the protections afforded them by Title VII 
regulation and prefer to transact with dealing entities that are 
subject to the full scope of Title VII regulation, rather than with 
non-U.S. persons that rely on the conditional exception.
---------------------------------------------------------------------------

    \426\ See ANE Adopting Release, 81 FR at 8612.
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2. Effects on Efficiency, Competition, and Capital Formation
    As discussed earlier, the proposed amendment could reduce the 
regulatory burden for non-U.S. persons that engage in security-based 
swap arranging, negotiating, and executing activity with non-U.S. 
counterparties using affiliated U.S.-based personnel because these non-
U.S. persons could avail themselves of an additional, potentially 
lower-cost, means of engaging in arranging, negotiating, and executing 
activity with non-U.S. counterparties.\427\ To the extent that the 
regulatory burden for such non-U.S. persons is reduced as a result of 
the proposed amendment, resources could be freed up for investing in 
profitable projects, which would promote investment efficiency and 
capital formation. In addition, a reduction in regulatory burden for 
such non-U.S. persons could allow these persons to operate their 
security-based swap dealing business more efficiently. To the extent 
that these non-U.S. persons carry out security-based swap dealing 
activity with counterparties around the world \428\ and choose to pass 
on cost savings flowing from their improved efficiency in the form of 
lower prices for liquidity provision, counterparties around the world 
could benefit by being able to transact at lower costs. A reduction in 
regulatory burden associated with the proposed amendment could lower 
entry barriers into the security-based swap market and increase the 
number of non-U.S. person dealers that are willing to provide liquidity 
to non-U.S. counterparties using affiliated U.S.-based personnel. An 
increase in the number of such non-U.S. person dealers may increase 
competition for liquidity provision to non-U.S. counterparties, which 
could lower transaction costs for these counterparties and improve 
their ability to hedge economic exposures. To the extent that non-U.S. 
person dealers focus their market-making activities on non-U.S. 
counterparties and avoid U.S. counterparties, the competition for 
liquidity provision to U.S. counterparties may decline, which could 
increase transaction costs for U.S. counterparties and impair their 
ability to hedge their economic exposures or to incur economic 
exposures. In addition, to the extent that increased transaction costs 
reduce the expected profits from trading on new information, market 
participants may be less willing to transact in the security-based swap 
market in response to new information. Such reduced participation in 
the security-based swap market might impede the incorporation of new 
information into security-based swap prices, reducing the informational 
efficiency of these markets.
---------------------------------------------------------------------------

    \427\ See part VII.B.1, supra.
    \428\ See part VII.A.2.c, supra.
---------------------------------------------------------------------------

    The proposed amendment might generate certain competitive effects 
due to gaps between the full set of requirements for registered 
security-based swap dealers and the conditions applicable to the 
registered entity of the non-U.S. person under the proposed 
amendment,\429\ though these effects will be tempered to the extent 
that the non-U.S. person dealer passes on compliance costs incurred by 
its U.S. registered entity to the non-U.S. counterparty. First, under 
proposed Rule 3a71-3(d)(1)(C), the exception would not be conditioned 
on the registered entity of the non-U.S. person dealer having to comply 
with requirements pertaining to ECP verification, daily mark 
disclosure, and ``know your counterparty.'' \430\ Thus, to the extent 
that the non-U.S. person adheres only to the provisions specifically 
required by the conditions set forth under the proposed amendment, the 
non-U.S. person dealer could incur lower compliance costs in providing 
liquidity to non-U.S. counterparties than under current rules, relative 
to the baseline. In that case, the non-U.S. person dealer might be able 
to lower the price at which it offers liquidity to a non-U.S. 
counterparty. However, under both alternatives the non-U.S. person must 
have a U.S. affiliate that is registered with the Commission. The 
extent to which the non-U.S. person dealer may offer a more competitive 
price would depend in part on whether the non-U.S. person dealer will 
pass on compliance costs incurred by its U.S. registered entity to the 
non-U.S. counterparty in the form of a higher price for providing 
liquidity to the non-U.S. counterparty. To the extent that the non-U.S. 
person dealer offers liquidity to the non-U.S. counterparty at a price 
that fully recovers the compliance costs incurred by its U.S. 
registered entity, any price reduction that could be offered by the 
non-U.S. person dealer might be limited.
---------------------------------------------------------------------------

    \429\ As context, the use of the ``arranged, negotiated, or 
executed'' counting standard was intended in part to avoid allowing 
competitive disparities between registered security-based swap 
dealers and entities that otherwise could engage in security-based 
swap market-facing activity in the United States without having to 
register as security-based swap dealers. See part I.A.2, supra.
    \430\ See Business Conduct Adopting Release, part II.G.
---------------------------------------------------------------------------

    Second, a non-U.S. counterparty may prefer to enter into a 
security-based swap transaction with a non-U.S.-person dealer that 
takes advantage of the conditional exception, rather than a U.S. 
registered security-based swap dealer, not only because the non-U.S.-
person dealer may offer more competitive prices, but also because the 
non-U.S. counterparty may itself avoid certain costs by transacting 
with a non-U.S. person dealer. For example, Title VII financial 
responsibility requirements applicable to security-based swap

[[Page 24263]]

dealers would not apply to the non-U.S. person dealer under the 
proposed amendment, although the non-U.S. person dealer would be 
subject to the margin and capital requirements of a listed 
jurisdiction. To the extent that a non-U.S. counterparty has already 
established with the non-U.S. person dealer the necessary margin 
agreement that is compliant with the margin requirements of the listed 
jurisdiction, the non-U.S. counterparty could avoid the additional 
costs of negotiating and adhering to a new margin agreement that is 
compliant with the Commission's Title VII margin requirements, if the 
non-U.S. counterparty transacts with the non-U.S. person dealer.
    These competitive effects may create an incentive for entities that 
carry out their security-based swap dealing business in a U.S.-person 
dealer with non-U.S. person counterparties to restructure a proportion 
of this business to be carried out in a non-U.S.-person dealer 
affiliate.
3. Additional Alternatives Considered
    In developing these proposed amendments, the Commission considered 
a number of additional alternatives. This section outlines these 
alternatives and discusses the potential economic effects of each.
a. Requiring the Registered Entity To Comply With ECP Verification and 
``Know Your Counterparty''
    When identifying the security-based swap dealer requirements that 
are applicable to a registered entity for purposes of this rulemaking, 
the Commission considered requiring the registered entity to comply 
with ECP verification and ``know your counterparty'' requirements, 
along with other security-based swap dealer requirements, even if the 
registered entity is not a party to the resulting security-based swap. 
Although this alternative would lead to greater conformity with the 
full set of security-based swap dealer requirements, the provisions in 
question may require knowledge that may not be readily available to the 
registered entity when it engages in limited arranging, negotiating, 
and executing activity in connection with the security-based swaps 
addressed by the proposed exception. These operational difficulties may 
prevent the registered entity from complying with the provisions or may 
require the registered entity to incur costs to ensure compliance. The 
Commission estimates that, if included as part of the conditions of the 
exception, the ECP verification and know your counterparty requirements 
would impose initial costs of approximately $2,919 per registered 
entity,\431\ or $70,056 in aggregate,\432\ and ongoing costs of 
approximately $91,770 per registered entity,\433\ or $2,202,480 in 
aggregate.\434\ Further, the non-U.S. counterparties transacting with 
the non-U.S. persons making use of the proposed exception that are not 
also participating in swap markets and relying on industry established 
verification of status protocol may incur initial costs associated with 
the verification of status requirement and related adherence 
letters.\435\ The Commission estimates these aggregate initial costs at 
approximately $460,152.\436\ All non-U.S. counterparties (or their 
agents) transacting with the non-U.S. persons making use of the 
proposed exception would also be required to collect and provide 
essential facts to the registered entities to comply with the ``know 
your counterparty'' obligations for an aggregate initial cost of 
approximately $6,439,860.\437\ To the extent that the knowledge needed 
to comply with these requirements may not be readily available to the 
registered entity and the registered entity has to expend additional 
resources to obtain that knowledge, the actual costs incurred by the 
registered entity to comply with these requirements may be higher. The 
Commission acknowledges that a non-U.S. person making use of the 
proposed exception potentially could mitigate the compliance costs of 
the registered entity by transacting only with non-U.S. counterparties 
that are known ECPs to the registered entity. By doing so, the 
registered entity could avoid expending additional resources to learn 
about the non-U.S. counterparties' ECP status. However, as a result of 
this approach, the non-U.S. person may have to forgo transacting with 
new non-U.S. counterparties whose ECP status is not known to the 
registered entity. The non-U.S. person would thus have to balance the 
cost savings associated with transacting only with a set of known non-
U.S. counterparties against the revenues that may be forgone by not 
transacting with new non-U.S. counterparties whose ECP status is 
unknown to the registered entity.
---------------------------------------------------------------------------

    \431\ These estimates incorporate quantifiable initial costs 
presented in the Business Conduct Adopting Release, 81 FR at 30090-
30092, 30110 adjusted for CPI inflation using data from the Bureau 
of Labor Statistics between 2016 and 2018. Specifically, per entity 
initial costs are estimated in 2016 dollars as $880 (ECP 
verification) + $1,900 (know your counterparty) = $2,780, and 
adjusted by 1.05 to $2,919 in current dollars.
    \432\ Aggregate initial costs = Per entity initial costs of 
$2,919 x 24 entities = $70,056.
    \433\ These estimates incorporate quantifiable initial costs 
presented in the Business Conduct Adopting Release, 81 FR at 30090-
30092, 30110 adjusted for CPI inflation using data from the Bureau 
of Labor Statistics between 2016 and 2018. Specifically, per entity 
ongoing costs are estimated in 2016 dollars as $87,400, and adjusted 
by 1.05 to $91,770 in current dollars.
    \434\ Aggregate initial costs = Per entity initial costs of 
$91,770 x 24 entities = $2,202,480.
    \435\ In the Business Conduct Adopting Release, the Commission 
assumed that counterparties that are swap market participants likely 
already adhere to the relevant protocol and would not have any 
start-up or ongoing burdens with respect to verification. See 81 FR 
at 30091. The Commission continues to believe that this assumption 
is valid and thus, for purposes of this alternative, the Commission 
believes that only non-U.S. counterparties that are not swap market 
participants will incur verification-related costs. As discussed in 
part VII.A.7 supra, the Commission preliminarily estimates that up 
to 24 persons likely may use the proposed exception, and that their 
registered entity affiliates may arrange, negotiate, or execute 
transactions with up to 1,614 non-U.S. counterparties, of which 498 
do not participate in swap markets.
    \436\ This estimate incorporates quantifiable initial costs 
presented in the Business Conduct Adopting Release, 81 FR at 30090-
30092, 30110 adjusted for CPI inflation using data from the Bureau 
of Labor Statistics between 2016 and 2018. Per counterparty initial 
costs are estimated in 2016 dollars as $500 (initial costs of 
disclosure of essential facts) + $380 (initial costs of adherence 
letters) = $880, and adjusted by 1.05 to $924 in current dollars. 
Aggregate initial costs = Per entity initial costs of $924 x 498 
counterparties = $460,152.
    \437\ This estimate incorporates quantifiable initial costs 
presented in the Business Conduct Adopting Release, 81 FR at 30090-
30092, 30110 adjusted for CPI inflation using data from the Bureau 
of Labor Statistics between 2016 and 2018. Per counterparty initial 
costs are estimated in 2016 dollars as (In-house attorney at $380 
per hour) x 10 hours = $3,800, and adjusted by 1.05 to $3,990 in 
current dollars. Aggregate initial costs = Per entity initial costs 
of $3,990 x 1,614 counterparties = $6,439,860.
---------------------------------------------------------------------------

    As another alternative, the Commission considered requiring 
compliance with the ECP verification and ``know your counterparty'' 
requirements with a one-time carve out when the non-U.S. counterparty 
is unknown to the registered entity and there is no basis to believe 
that the registered entity would have further interactions with that 
non-U.S. counterparty. Although such a carve out may reduce compliance 
costs by excluding transactions that likely would pose the greatest 
operational difficulties in terms of obtaining knowledge needed for 
complying with the ECP verification and know your counterparty 
requirements, the Commission is also cognizant that the carve out may 
create new costs associated with assessing when the carve out would 
apply. The Commission is concerned that these new assessment costs may 
impose an additional burden on the registered entity and may offset any 
reduction in compliance costs associated with a one-time carve out. As 
with the previous alternative, a non-U.S. person making use of the 
proposed exception potentially could mitigate the

[[Page 24264]]

compliance costs of the registered entity by transacting only with non-
U.S. counterparties that are ECPs known to the registered entity. As 
discussed above, the non-U.S. person would thus have to balance the 
cost savings associated with this approach against the revenues that 
may be forgone by not transacting with new non-U.S. counterparties 
whose ECP status is unknown to the registered entity.
    In light of these compliance challenges and the fact that the 
proposed amendment does include conditions designed to impose a minimum 
standard of conduct upon security-based swap dealers in connection with 
their transaction-related activities, the Commission preliminarily 
believes that the proposed approach is preferable to these 
alternatives.
b. Requiring the Registered Entity To Comply With Daily Mark Disclosure
    The Commission also considered requiring the registered entity to 
comply with daily mark disclosure, along with other security-based swap 
dealer requirements, even if the registered entity is not a party to 
the resulting security-based swap. Similar to the discussion of ECP 
verification and know your counterparty requirements above, this 
alternative would lead to greater conformity with the full set of 
security-based swap dealer requirements, but may require knowledge that 
may not be readily available to the registered entity when it engages 
in limited arranging, negotiating, and executing activity in connection 
with the security-based swaps addressed by the proposed exception. 
Further, the daily mark disclosure is predicated on the existence of an 
ongoing relationship between the security-based swap dealer and the 
counterparty that may not be present in connection with the 
transactions at issue, and would be linked to risk management functions 
that are likely to be associated with the entity in which the resulting 
security-based swap position is located.\438\ These operational 
difficulties may prevent the registered entity from complying with the 
daily mark disclosure requirement or may require the registered entity 
to incur an unreasonably high cost to ensure compliance. In light of 
these compliance challenges and the fact that the proposed amendment 
does include conditions designed to impose a minimum standard of 
conduct upon security-based swap dealers in connection with their 
transaction-related activities, the Commission preliminarily believes 
that the proposed approach is preferable to this alternative.
---------------------------------------------------------------------------

    \438\ See part III.B.2.a, supra.
---------------------------------------------------------------------------

c. Requiring a Limited Disclosure of Incentives and Conflicts
    As an alternative to the disclosure requirements set forth under 
proposed Rule 3a71-3(d)(1)(ii)(B)(1), the Commission considered 
requiring the registered entity to disclose its own material incentives 
and conflicts of interest, but not requiring the registered entity to 
disclose the incentives and conflicts of interest of its non-U.S. 
affiliate. While this alternative might help to mitigate the costs 
associated with disclosing the incentives and conflicts of interest of 
the non-U.S. affiliate,\439\ the benefits associated with such 
disclosures \440\ may also decrease because non-U.S. counterparties 
would not know about the incentives and conflicts of interest of the 
non-U.S. affiliate prior to entering into security-based swaps with the 
non-U.S. affiliate. In light of this concern, the Commission 
preliminarily believes that the proposed approach is preferable to this 
alternative.
---------------------------------------------------------------------------

    \439\ See Business Conduct Adopting Release, 81 FR at 30112.
    \440\ See Business Conduct Adopting Release, 81 FR at 30111-12.
---------------------------------------------------------------------------

d. Requiring the Non-U.S. Person To Be Domiciled in a G-20 Jurisdiction 
or in a Jurisdiction Where the Non-U.S. Person Would Be Subject to 
Basel Capital Requirements
    As alternatives to proposed paragraph (d)(1)(v), the Commission 
considered proposing a requirement that the non-U.S. person be 
domiciled in a G-20 jurisdiction or in a jurisdiction where the non-
U.S. person would be subject to Basel capital requirements as 
commenters have suggested. While the Commission acknowledges that these 
alternatives are clearly defined and would provide certainty to market 
participants, the Commission preliminarily believes these alternatives 
potentially could create opportunities for regulatory arbitrage whereby 
a non-U.S. person may relocate its operations to a jurisdiction that 
imposes lower financial responsibility standards. The non-U.S. person 
may thus enjoy a cost advantage relative to other dealers that operate 
under higher regulatory burdens, while not being subject to equally 
rigorous financial responsibility standards. Further, as discussed 
earlier,\441\ the fact that a jurisdiction is a member of the G-20 or 
subscribes to Basel standards does not by itself provide assurance that 
the jurisdiction has implemented appropriate financial responsibility 
standards.
---------------------------------------------------------------------------

    \441\ See part III.B.5, supra.
---------------------------------------------------------------------------

e. Not Requiring Notification to Counterparties of the Non-U.S. Person
    In proposing the conditions that would apply to the non-U.S. person 
under Alternative 1 and Alternative 2, the Commission considered 
omitting the condition that non-U.S. counterparties of the non-U.S. 
person relying on the exception be notified contemporaneously by the 
registered entity that the non-U.S. person is not registered as a 
security-based swap dealer, and that certain Exchange Act provisions or 
rules addressing the regulation of security-based swaps would not be 
applicable in connection with the transaction. The omission of this 
notification condition may reduce cost and thus regulatory burden for 
the non-U.S. persons that rely on the exception.
    However, the absence of this notification condition potentially 
could reinforce the competitive disparity between the non-U.S. persons 
that make use of the exception and registered security-based swap 
dealers that comply with the full set of Title VII security-based swap 
dealer requirements. As discussed above,\442\ non-U.S. persons that 
avail themselves of the exception could bear lower costs compared to 
registered security-based swap dealers that have to comply with the 
full set of security-based swap dealer requirements.
---------------------------------------------------------------------------

    \442\ See part VII.B.2, supra.
---------------------------------------------------------------------------

    To the extent that non-U.S. counterparties prefer to trade with 
dealers that are subject to the full set of Title VII security-based 
swap dealer requirements and the associated safeguards, in the absence 
of the notification condition, non-U.S. persons that rely on the 
exception could bear lower regulatory costs than registered security-
based swap dealers but may nevertheless be regarded by non-U.S. 
counterparties to be no different than registered security-based swap 
dealers, at least with respect to Title VII safeguards. As a result, 
these non-U.S. persons potentially could capture the business of non-
U.S. counterparties from registered security-based swap dealers that 
they otherwise might not have captured if the notification condition 
had been part of the exception. In light of this concern, the 
Commission preliminarily believes that requiring such notification to 
non-U.S. counterparties is preferable to this alternative.

[[Page 24265]]

f. ``No Management of Relationship'' Condition
    When identifying the conditions of the proposed exception, the 
Commission considered making the exception unavailable where U.S. 
personnel manage the relationship with the non-U.S. counterparty to the 
security-based swap. Such a condition might help address concerns that 
U.S.-based dealers could use the proposed exception to rebook 
transactions, which are managed by U.S. personnel, to a non-U.S. 
affiliate to avoid triggering security-based swap dealer registration. 
However, the Commission recognizes that there may be challenges in 
articulating objective criteria to identify when the proposed exception 
would or would not be available under this type of approach. Even if 
objective criteria could be articulated, non-U.S. persons seeking to 
use the proposed exception may have to incur costs to satisfy these 
criteria on an ongoing basis. In light of these concerns, the 
Commission preliminarily believes that the proposed approach is 
preferable to this alternative.
g. Rule 10b-10 in Lieu of Trade Acknowledgement and Verification 
Requirement
    In specifying the requirements that are applicable to the 
registered entity under Alternative 2, the Commission considered 
requiring the registered entity to comply with Rule 10b-10 in lieu of 
the security-based swap dealer trade acknowledgement and verification 
requirement (Rules 15Fi-1 and 15Fi-2), if the registered entity is a 
registered broker-dealer that is not also a security-based swap dealer. 
As discussed earlier,\443\ if a non-U.S. person chooses to use a 
registered broker-dealer under Alternative 2, the non-U.S. person could 
incur costs associated with the registered broker status, including the 
cost of complying with Rule 10b-10. Additionally, the non-U.S. person 
would incur the cost of complying with certain security-based swap 
dealer requirements, including the trade acknowledgement and 
verification requirement. The alternative approach could reduce the 
regulatory burden on the non-U.S. person by obviating the need for its 
registered broker-dealer affiliate to comply with the trade 
acknowledgement and verification requirement. However, the Commission 
preliminarily believes that compliance with the trade acknowledgement 
and verification requirement may better support the regulation of the 
security-based swap market. First, the Rule 15Fi-2 requirement that a 
trade acknowledgement ``must disclose all of the terms of the security-
based swap transaction'' \444\ is tailored to the security-based swap 
market and is more likely to effectively communicate the relevant terms 
of the transaction to the counterparty. A more effective communication 
of transaction terms could facilitate timely and accurate confirmations 
and in turn reduce the likelihood of a confirmation backlog and 
associated market, credit, settlement, and financial stability 
risks.\445\ Second, while Rule 10b-10 requires only the registered 
broker-dealer to provide a trade confirmation to a customer, Rule 15Fi-
2 requires a security-based swap dealer or major security-based swap 
participant to provide a trade acknowledgement to, as well as obtain a 
verification of that acknowledgement from, the counterparty. As 
discussed elsewhere,\446\ unlike most other securities transactions, a 
security-based swap gives rise to ongoing obligations between 
transaction counterparties during the life of the transaction, 
including payments contingent on specific events, such as a corporate 
default. Consequently, the acknowledgement and verification of the 
terms of a security-based swap transaction help ensure that security-
based swap market participants effectively measure and manage market 
and credit risk. Third, the trade acknowledgement and verification 
requirement would better promote a uniform regulatory framework for 
security-based swap transactions because the requirement would apply to 
all security-based swap transactions that are arranged, negotiated, or 
executed in the United States. In light of the foregoing, the 
Commission preliminarily believes that the proposed approach is 
preferable to this alternative.
---------------------------------------------------------------------------

    \443\ See part VII.B.1, supra.
    \444\ See Exchange Act Rule 15Fi-2(c).
    \445\ See Trade Acknowledgement and Verification Adopting 
Release part VII.C.
    \446\ See id., 81 FR at 39833.
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C. Proposed Guidance Regarding the Scope of the ``Arranged, Negotiated, 
or Executed'' Test

    As discussed in part II supra, the Commission is proposing guidance 
regarding the scope of the ``arranged, negotiated, or executed'' test. 
This guidance could have economic effects to the extent that, in the 
absence of such guidance, some market participants may have understood 
the scope of the test differently.
    As discussed in part VII.A.8 above, the Commission preliminarily 
believes that up to 49 non-U.S. persons could be affected by the 
proposed guidance. To the extent that some of these non-U.S. persons 
currently understand the scope of the ``arranged, negotiated, or 
executed'' test to be different from the scope of the test set forth in 
the proposed guidance, there might be certain potential economic 
effects associated with (1) counting toward the de minimis threshold 
for security-based dealer registration,\447\ (2) cross-border 
application of security-based swap dealer business conduct provisions, 
and (3) cross-border application of Regulation SBSR's regulatory 
reporting and public dissemination provisions. The Commission discusses 
these potential economic effects below.
---------------------------------------------------------------------------

    \447\ See note 90, supra.
---------------------------------------------------------------------------

    Under rules adopted in the Cross-Border Adopting Release, a non-
U.S. person is permitted to exclude from the de minimis analysis 
certain dealing transactions conducted through a foreign branch of a 
counterparty that is a U.S. bank. For this exclusion to be effective, 
persons located within the United States cannot be involved in 
arranging, negotiating, or executing the transaction. Moreover, the 
counterparty U.S. bank must be registered as a security-based swap 
dealer,\448\ unless the transaction occurs prior to 60 days following 
the effective date of final rules providing for the registration of 
security-based swap dealers.\449\ Under rules adopted in the ANE 
Adopting Release, a non-U.S. person has to count toward its de minimis 
threshold, transactions with a non-U.S. counterparty that are arranged, 
negotiated, or executed by U.S. personnel. The Commission preliminarily 
believes that the proposed guidance might have certain economic effects 
in connection with the application of the ``arranged, negotiated, or 
executed'' test to the de minimis threshold.
---------------------------------------------------------------------------

    \448\ See Exchange Act Rule 3a71-3(b)(1)(iii)(A)(1).
    \449\ See Exchange Act Rule 3a71-3(b)(1)(iii)(A)(2).
---------------------------------------------------------------------------

    First, the proposed guidance may cause a change in behavior of 
those non-U.S. persons, if any, who currently interpret the scope of 
the ``arranged, negotiated, or executed'' test to be different from the 
proposed guidance. To the extent that the proposed guidance reduces the 
likelihood of non-U.S. persons mistakenly believing they have exceeded 
the de minimis threshold, it would potentially eliminate costs that 
non-U.S. persons may otherwise incur related to security-based swap 
dealer registration and compliance. Specifically, the proposed guidance 
potentially could reduce the

[[Page 24266]]

compliance burden of those non-U.S. persons that employ U.S. personnel 
to provide market color to non-U.S. counterparties or foreign branches 
of U.S. persons, and understood the provision of market color to fall 
within the scope of the ``arranged, negotiated, or executed'' test. In 
the absence of the proposed guidance, such a non-U.S. person could 
incur the cost of registering as a security-based swap dealer if it 
counts transactions involving the provision of market color by U.S. 
personnel toward the de minimis threshold, and as a consequence of this 
treatment, its market-facing activity exceeds the de minimis threshold. 
The non-U.S. person accordingly would incur the cost necessary for 
compliance with the full set of security-based swap dealer requirements 
by one or more registered security-based swap dealers. These burdens 
are in addition to the assessment costs that the non-U.S. person would 
incur to identify and count relevant market-facing activity toward the 
de minimis threshold.
    To the extent that the proposed guidance reduces the likelihood of 
restructuring due to perceived regulatory burdens, it would potentially 
eliminate costs that non-U.S. persons may otherwise incur. In the 
absence of the proposed guidance, non-U.S. persons that employ U.S. 
personnel to provide market color to non-U.S. counterparties or foreign 
branches of U.S. persons, and understand the provision of market color 
to fall within the scope of the ``arranged, negotiated, or executed'' 
test, may choose to avoid security-based swap dealer registration by 
relocating those U.S. personnel (or the activities performed by those 
U.S. personnel) to locations outside the United States or by 
restructuring operations to use non-U.S. personnel to provide market 
color to non-U.S. counterparties or foreign branches of U.S. persons. 
These forms of restructuring would impose costs on these non-U.S. 
persons associated with moving personnel outside the United States or 
forgoing the market knowledge and expertise of the U.S. personnel that 
provide market color. The proposed guidance, by clarifying that 
transactions involving the provision of market color by U.S. personnel 
would not fall within the scope of the arranged, negotiated, or 
executed counting test, may obviate the need for these forms of 
restructuring and potentially limit the associated costs for these non-
U.S. persons.
    The proposed guidance may affect the approach to assessment chosen 
by different market participants. In the ANE Adopting Release, the 
Commission noted that non-U.S. persons likely would consider three 
possible approaches to determine which transactions must be counted 
toward the de minimis threshold.\450\ The Commission also discussed 
potential costs associated with each approach. The proposed guidance 
might affect such assessment costs to the extent that non-U.S. persons 
that employ U.S. personnel to provide market color to non-U.S. 
counterparties would have, in the absence of the proposed guidance, 
interpreted the provision of market color to fall within the scope of 
the ``arranged, negotiated, or executed'' test, and further to the 
extent that such persons would change their approach to assessment in 
light of the proposed guidance. The Commission preliminarily believes 
that a non-U.S. person may choose to make such a change if the 
associated benefits outweigh the associated costs.
---------------------------------------------------------------------------

    \450\ See ANE Adopting Release, 81 FR at 8627-28.
---------------------------------------------------------------------------

    In light of the proposed guidance, a non-U.S. person who has opted 
to perform assessments on a per-transaction basis \451\ may modify its 
information system \452\ to track transactions involving only the 
provision of market color by U.S. personnel, if the system does not 
already possess this capability. The potential benefit of such 
modifications would be to allow the non-U.S. person to avoid security-
based swap dealer registration and the associated regulatory burdens by 
excluding transactions involving only the provision of market color by 
U.S. personnel from being counted toward the de minimis threshold. 
These costs likely would not be incurred to the extent that the non-
U.S. person already employs an information system that can track 
transactions involving only the provision of market color by U.S. 
personnel.
---------------------------------------------------------------------------

    \451\ See id. at 8627.
    \452\ In the ANE Adopting Release, the Commission estimated the 
costs associated with developing and modifying information 
technology systems to track the location of persons with dealing 
activity. The Commission preliminarily believes that this approach 
also would be appropriate for estimating the costs incurred by the 
non-U.S. person to modify its information system in light of the 
proposed guidance. The Commission estimates that the average non-
U.S. person will incur start-up costs of $410,000 to modify its 
information system to track transactions involving only the 
provision of market color by U.S. personnel. Further, the Commission 
preliminarily believes that non-U.S. persons would incur the cost of 
$6,500 per location per year on an ongoing basis for training, 
compliance, and verification costs (calculated as Internal Cost, 90 
hours x $50 per hour = $4,500 plus Consulting Costs, 10 hours x $200 
per hour = $2,000, for a total cost of $6,500). See ANE Adopting 
Release, 81 FR at 8627.
---------------------------------------------------------------------------

    Instead of performing assessments on a per-transaction basis, a 
non-U.S. person might: (1) Restrict its U.S. personnel from arranging, 
negotiating, or executing security-based swaps with non-U.S. 
counterparties,\453\ or (2) count transactions with other non-U.S. 
persons toward its de minimis threshold, regardless of whether counting 
them is required, to avoid the cost of assessing the locations of 
personnel involved with each transaction.\454\ In light of the proposed 
guidance, a non-U.S. person that intends to take either approach likely 
would continue to use such approach to the extent that the costs 
associated with assessments on a per-transaction basis outweigh any 
potential cost savings from excluding transactions involving only the 
provision of market color by U.S. personnel from the de minimis 
threshold, and consequently avoiding having to register as a security-
based swap dealer.
---------------------------------------------------------------------------

    \453\ See ANE Adopting Release, 81 FR at 8627-28.
    \454\ See ANE Adopting Release, 81 FR at 8628.
---------------------------------------------------------------------------

    Under rules adopted in the Business Conduct Adopting Release, a 
non-U.S. security-based swap dealer has to comply with transaction-
level business conduct requirements for transactions between the non-
U.S. security-based swap dealer and non-U.S. counterparties that are 
arranged, negotiated, or executed by personnel of the non-U.S. 
security-based swap dealer located in a U.S. branch or office, or by 
personnel of its agent located in a U.S. branch or office.\455\
---------------------------------------------------------------------------

    \455\ See Business Conduct Adopting Release, 81 FR at 30065; 
Exchange Act Rules 3a71-3(c) and 3a71-3(a)(8)(i).
---------------------------------------------------------------------------

    To the extent that the proposed guidance reduces the likelihood of 
non-U.S. security-based swap dealers mistakenly believing they will 
enter into security-based swaps that fall within the scope of the 
``arranged, negotiated, or executed'' test in connection with 
transaction-level business conduct requirements, it would potentially 
eliminate costs that non-U.S. security-based swap dealers may otherwise 
incur. Specifically, the proposed guidance potentially could reduce the 
compliance burden of those non-U.S. security-based swap dealers that 
employ U.S. personnel to provide market color to non-U.S. 
counterparties, and that previously understood the provision of market 
color to fall within the scope of the ``arranged, negotiated, or 
executed'' test. In the absence of the proposed guidance, such a non-
U.S. security-based swap dealer could incur the cost of complying with 
transaction-level business conduct requirements (e.g., disclosure of 
material risks and characteristics) if it considers

[[Page 24267]]

transactions involving the provision of market color by U.S. personnel 
to fall within the scope of the test. These burdens are in addition to 
the assessment costs that the non-U.S. security-based swap dealers 
would incur to identify transactions that fall within the scope of the 
test.\456\
---------------------------------------------------------------------------

    \456\ See Business Conduct Adopting Release, 81 FR at 30135.
---------------------------------------------------------------------------

    Under Regulation SBSR, a security-based swap transaction between 
two non-U.S. persons that is arranged, negotiated, or executed using 
U.S. personnel may be subject to regulatory reporting and public 
dissemination. Rule 908(b)(2) of Regulation SBSR provides that a 
registered security-based swap dealer or major security-based swap 
participant will incur reporting obligations.\457\ This rule covers 
both U.S. and non-U.S. registered entities. Rule 908(b)(5) imposes 
reporting obligations on a non-U.S. person that, in connection with the 
person's security-based swap dealing activity, arranged, negotiated, or 
executed the security-based swap using its personnel located in a U.S. 
branch or office, or using personnel of an agent located in a U.S. 
branch or office.\458\ Rule 908(a)(1)(v) \459\ provides that a 
security-based swap transaction shall be subject to regulatory 
reporting and public dissemination if the transaction is arranged, 
negotiated, or executed by personnel of such non-U.S. person located in 
a U.S. branch or office, or by personnel of an agent of such non-U.S. 
person located in a U.S. branch or office. Rule 901(a)(2)(ii) assigns 
reporting duties for various types of uncleared security-based swap 
transactions including, but not limited to, transactions in which (a) 
one or both sides include a registered security-based swap dealer and 
(b) both sides include unregistered non-U.S. persons and at least one 
side includes a non-U.S. person that falls within Rule 908(b)(5).
---------------------------------------------------------------------------

    \457\ See Exchange Act Rule 908(b)(2).
    \458\ See Exchange Act Rule 908(b)(5).
    \459\ See Exchange Act Rule 908(a)(1)(v).
---------------------------------------------------------------------------

    To the extent that the proposed guidance reduces the likelihood of 
non-U.S. persons (i.e., non-U.S. security-based swap dealers and 
unregistered non-U.S. dealing entities) mistakenly believing they have 
entered into security-based swaps that fall within the scope of the 
``arranged, negotiated, or executed'' test in connection with 
Regulation SBSR regulatory reporting requirements, it would potentially 
eliminate costs that non-U.S. persons may otherwise incur. 
Specifically, the proposed guidance potentially could reduce the 
compliance burden of those non-U.S. persons that employ U.S. personnel 
to provide market color to non-U.S. counterparties and that previously 
understood the provision of market color to fall within the scope of 
the ``arranged, negotiated, or executed'' test. In the absence of the 
proposed guidance, such a non-U.S. person could incur the cost of 
complying with reporting requirements (e.g., reporting of an initial 
security-based swap transaction to a registered security-based swap 
data repository) if it considers transactions involving the provision 
of market color by U.S. personnel to fall within the scope of the test. 
These burdens are in addition to the assessment costs that unregistered 
non-U.S. dealing entities would incur to identify transactions that 
fall within the scope of the test and to determine if they will incur 
reporting duties under Rule 901(a)(2)(ii)(E).\460\
---------------------------------------------------------------------------

    \460\ See Regulation SBSR Amendments Adopting Release, 81 FR 156 
at 53638.
---------------------------------------------------------------------------

    The proposed guidance may affect the incentives of those non-U.S. 
persons, if any, who currently interpret the scope of the ``arranged, 
negotiated, or executed'' test to be different from the proposed 
guidance, to request substituted compliance determinations for business 
conduct requirements and regulatory reporting and public dissemination 
requirements.\461\ In the absence of the proposed guidance, a non-U.S. 
person could incur the cost of applying for a substituted compliance 
determination if it considers transactions involving the provision of 
market color by U.S. personnel to fall within the scope of the test and 
believes that the cost savings from complying with comparable foreign 
requirements for these transactions outweigh the costs of applying for 
a substituted compliance determination and complying with any 
conditions that the Commission may attach to the substituted compliance 
determination. To the extent that the proposed guidance reduces the 
likelihood of non-U.S. persons mistakenly believing that transactions 
involving the provision of market color by U.S. personnel fall within 
the scope of the test, it may reduce the incentive of non-U.S. persons 
to apply for substituted compliance determinations and the associated 
costs.
---------------------------------------------------------------------------

    \461\ See Exchange Act Rule 3a71-6(d) (addressing substituted 
compliance for business conduct requirements) and Regulation SBSR 
Rule 908(c) (addressing substituted compliance for regulatory 
reporting and public dissemination requirements).
---------------------------------------------------------------------------

    As discussed above, the proposed guidance could reduce the 
regulatory burden (including substituted compliance application costs, 
if any) of those non-U.S. persons that employ U.S. personnel to provide 
market color to non-U.S. counterparties, and who would otherwise have 
interpreted the provision of market color to fall within the scope of 
the ``arranged, negotiated, or executed'' test. Additionally, the 
proposed guidance may obviate the need for restructuring and 
potentially limit the associated costs for such non-U.S. persons that 
employ U.S. personnel to provide market color to non-U.S. 
counterparties. To the extent that the regulatory cost burden and 
restructuring costs for such non-U.S. persons are reduced as a result 
of the proposed guidance, resources could be freed up for investing in 
profitable projects, which would promote investment efficiency and 
capital formation. The non-U.S. persons alternatively could pass on the 
reductions in regulatory cost burden and restructuring costs to their 
counterparties in the form of a lower price for liquidity provision 
(e.g., through posting narrower bid-ask spreads), thereby allowing the 
non-U.S. persons to compete more effectively in providing liquidity to 
market participants. Such actions in turn may increase competition in 
the market for liquidity provision if they prompt other liquidity 
providers to lower their prices for liquidity provision.

D. Proposed Amendment to Rule of Practice 194(c)(2)

    Several key economic effects and tradeoffs inform the Commission's 
analysis of proposed Rule of Practice 194(c)(2).\462\
---------------------------------------------------------------------------

    \462\ See Rule of Practice 194 Adopting Release, 84 FR at 4922-
43.
---------------------------------------------------------------------------

    First, as the Commission discussed in the Rule of Practice 194 
Adopting Release,\463\ increasing the ability of statutorily 
disqualified persons to effect or be involved in effecting security-
based swaps on behalf of SBS Entities may give rise to higher 
compliance and counterparty risks, increase costs of adverse selection, 
decrease market participation, and reduce competition among higher 
quality associated persons and SBS Entities.
---------------------------------------------------------------------------

    \463\ See id.
---------------------------------------------------------------------------

    Second, at the same time, the scope of conduct that gives rise to 
disqualification is broad and includes conduct that may not pose 
ongoing risks to counterparties.\464\ In addition, as

[[Page 24268]]

discussed in the Rule of Practice 194 Adopting Release and in greater 
detail below, strong disqualification standards can also reduce 
competition and the volume of service provision.
---------------------------------------------------------------------------

    \464\ As discussed in Section V.A. of the Rule of Practice 194 
Adopting Release, the definition of disqualified persons, as applied 
in the statutory prohibition in Exchange Act Section 15F(b)(6), is 
broad. That definition disqualifies associated persons due to 
violations of the securities laws, but also for felonies and 
misdemeanors not related to the securities laws and/or financial 
markets, and certain foreign sanctions. See Rule of Practice 194 
Adopting Release, 84 FR at 4922, 4929.
---------------------------------------------------------------------------

    Third, public information about misconduct can give rise to capital 
market participants voting with their feet (reputational costs), and 
labor markets frequently penalize misconduct through firing or worse 
career outcomes in other settings, as discussed in the Rule of Practice 
194 Adopting Release. If counterparties perceive the risks related to 
disqualified associated persons to be high, counterparties may choose 
to perform more in-depth due diligence related to their SBS Entity 
counterparties or to transact with SBS Entities without disqualified 
associated persons.
    Fourth, an overwhelming majority of dealers and most counterparties 
transact across both swap and security-based swap markets, including in 
financial products that are similar or identical in their payoff 
profiles and risks. Differential regulatory treatment of 
disqualification in swap and security-based swap markets may disrupt 
existing counterparty relationships and may increase costs of 
intermediating transactions for some SBS Entities, which may be passed 
along to certain counterparties in the form of higher transaction 
costs.
    Fifth, as discussed in the Rule of Practice 194 Adopting Release, 
market participants may value bilateral relationships with SBS 
Entities, including with SBS Entities dually-registered as Swap 
Entities, and searching for and initiating bilateral relationships with 
new SBS Entities may involve costs for counterparties. For example, 
security-based swaps are long-term contracts that are often 
renegotiated, and disruptions to existing counterparty relationships 
can reduce the potential future ability to modify a contract, which may 
be priced in widening spreads.\465\
---------------------------------------------------------------------------

    \465\ See Rule of Practice 194 Adopting Release, 84 FR at 4922.
---------------------------------------------------------------------------

1. Costs and Benefits of the Proposed Amendment
    Once compliance with SBS Entity registration rules is required, 
registered SBS Entities will be unable to utilize any statutorily 
disqualified associated natural person, including natural persons with 
potentially valuable capabilities, skills, or expertise, to effect or 
be involved in effecting security-based swaps, absent exemptive relief, 
including an order under Rule of Practice 194. This restriction would 
apply to all associated natural persons of all registered SBS Entities, 
with respect to all counterparties, and regardless of the nature of the 
conduct giving rise to disqualification. SBS Entities are, under the 
baseline regulatory regime, unable to rely on disqualified associated 
persons even if such persons are non-U.S. persons transacting 
exclusively with non-U.S. counterparties. However, absent the proposed 
Rule, SBS Entities would still be able to apply to the Commission for 
relief, and the Commission would still be able to grant relief, 
including under Rule of Practice 194.
    Under the proposed Rule, unless a limitation applies, SBS Entities 
will be able to allow disqualified associated persons that are not U.S. 
persons to effect or be involved in effecting security-based swap 
transactions with non-U.S. counterparties and foreign branches of U.S. 
counterparties. The Commission preliminarily believes that the proposed 
Rule involves three groups of benefits.
    First, SBS Entities may benefit from greater flexibility in hiring 
and managing non-U.S. employees transacting with foreign counterparties 
and foreign branches of U.S. counterparties. To the degree that such 
employees may have valuable skills, expertise, or counterparty 
relationships that are difficult to replace and outweigh the 
reputational and compliance costs of continued association, SBS 
Entities would be able to continue employing them without being 
required to apply for relief with the Commission. In addition, cross-
registered SBS Entities would experience economies of scope in 
employing non-U.S. natural persons in their swap and security-based 
swap businesses. Specifically, SBS Entities will be able to rely on the 
same non-U.S. natural persons in transactions with the same 
counterparties across integrated swap and security-based swap markets. 
In addition, SBS Entities will no longer be required to apply for 
relief under Rule of Practice 194 with respect to non-U.S. persons 
transacting with foreign counterparties and foreign branches of U.S. 
counterparties.\466\
---------------------------------------------------------------------------

    \466\ As discussed in the economic baseline, we preliminarily 
believe that the proposed exclusion may reduce the number of 
applications by between zero and two applications, resulting in 
potential cost savings of between zero and $24,540 (=2 x 30 hours x 
Attorney at $409 per hour). The hourly cost figure is based on data 
from SIFMA's Management & Professional Earnings in the Securities 
Industry 2013 (modified by the Commission staff to adjust for 
inflation and to account for an 1,800-hour work-year and multiplied 
by 5.35 to account for bonuses, firm size, employee benefits, and 
overhead). See Rule of Practice 194 Adopting Release, 84 FR at 4922.
---------------------------------------------------------------------------

    Second, to the degree that SBS Entities currently pass along costs 
to counterparties in the form of, for example, higher transaction 
costs, the proposed amendment may benefit non-U.S. counterparties and 
foreign branches of U.S. counterparties through lower prices of 
available security-based swaps. In addition, such counterparties of SBS 
Entities would be able to continue transacting with the same non-U.S. 
associated persons of the same SBS Entities across interconnected 
markets without delays related to Commission review under Rule of 
Practice 194. The Commission notes that both the returns and the risks 
from security-based swap transactions by foreign branches of U.S. 
persons may flow to the U.S. business of U.S. persons, contributing to 
profits and losses of U.S. persons.
    Third, the proposed amendment may benefit disqualified non-U.S. 
natural persons seeking to engage in security-based swap activity. 
Under the proposal, an SBS Entity would no longer be required to incur 
costs related to applying for exemptive relief under Rule of Practice 
194 in order to allow a disqualified non-U.S. natural person to 
transact with foreign counterparties and foreign branches of U.S. 
counterparties. The proposal may reduce direct costs to SBS Entities of 
hiring and retaining disqualified non-U.S. employees. This may improve 
employment opportunities for disqualified non-U.S. natural persons in 
the security-based swap industry. However, research in other contexts 
points to large reputational costs from misconduct, and some papers 
show that employers may often fire and replace employees engaging in 
misconduct to manage these reputational costs, as discussed in the Rule 
of Practice 194 Adopting Release.\467\
---------------------------------------------------------------------------

    \467\ See Rule of Practice 194 Adopting Release, 84 FR at 4932.
---------------------------------------------------------------------------

    The proposed Rule would result in SBS Entities being less 
constrained by the general statutory prohibition in their security-
based swap activity with foreign counterparties and foreign branches of 
U.S. counterparties. The Commission continues to recognize that 
associating with statutorily disqualified natural persons effecting or 
involved in effecting security-based swaps on behalf of SBS Entities 
may give rise to counterparty and compliance risks. For example, as the 
Commission discussed elsewhere, in other settings, individuals engaged 
in misconduct are significantly more likely to engage in repeated

[[Page 24269]]

misconduct.\468\ Data in the Rule of Practice 194 Adopting Release 
suggests that, in parallel disqualification review processes in swap 
and broker-dealer settings, the application rate is low, but there are 
incidences of repeated misconduct.\469\ The Commission also continues 
to recognize that statutory disqualification and an inability to 
continue associating with SBS Entities creates disincentives against 
underlying misconduct for associated persons and that there may be 
spillover effects on other associated persons within the same SBS 
Entity.\470\ Further, the Commission recognizes that, under the 
proposed amendment, the Commission would be unable to make an 
individualized determination about whether permitting a given non-U.S. 
associated natural person to effect or be involved in effecting 
security-based swaps on behalf of an SBS Entity is consistent with the 
public interest.
---------------------------------------------------------------------------

    \468\ For a more detailed discussion, see Rule of Practice 194 
Adopting Release, 84 FR at 4932.
    \469\ See Rule of Practice 194 Adopting Release, 84 FR at 4928.
    \470\ For example, as discussed in the Rule of Practice Adopting 
Release, Dimmock, Gerken, and Graham (2018) examine customer 
complaints against FINRA-registered representatives in 1999 through 
2011, and argue that misconduct of individuals influences the 
misconduct of their coworkers. Using mergers of firms as a quasi-
exogenous shock, the paper examines changes in an adviser's 
misconduct around changes to an employee's coworkers due to a 
merger. The paper estimates that an employee is 37% more likely to 
commit misconduct if her new coworkers encountered in the merger 
have a history of misconduct. The paper contributes to broader 
evidence on peer effects, connectedness, and commonality of 
misconduct, and can help explain the distributional properties in 
the prevalence of misconduct across firms documented in Egan, 
Matvos, and Seru (2017). See Stephen G. Dimmock, William C. Gerken, 
& Nathaniel P. Graham, ``Is Fraud Contagious? Coworker Influence on 
Misconduct by Financial Advisors,'' 73 J. Fin. 1417 (2018); see also 
Mark Egan, Gregor Matvos, & Amit Seru, ``The Market for Financial 
Adviser Misconduct,'' 127 J. Pol. Econ. 233 (2019), available at 
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2739170.
---------------------------------------------------------------------------

    The Commission also notes that the proposed amendment would allow 
SBS Entities to rely on disqualified non-U.S. personnel in their 
transactions with both foreign counterparties and foreign branches of 
U.S. counterparties. To the degree that statutory disqualification may 
increase risks to counterparties, to the degree that SBS Entities may 
choose to rely on disqualified foreign personnel despite reputational 
and compliance costs of association, and to the extent that such 
counterparties do not move their business to other personnel or SBS 
Entity, this may increase risks to foreign branches of U.S. 
counterparties. Depending on the consolidation and ownership structure 
of counterparties, some of the returns as well as losses in foreign 
branches may flow through to some U.S. parent firms. However, the 
proposed approach provides for identical treatment of foreign 
counterparties and foreign branches of U.S. counterparties, reducing 
potential competitive disparities between them in security-based swap 
markets.
    The Commission notes that, importantly, the proposed exclusion 
would more closely harmonize the Commission's approach with the 
approach already being followed with respect to foreign personnel of 
Swap Entities. As such, the Commission's assessment of the benefits and 
potential counterparty risks of the proposed relief discussed above is 
informed by experience and data with respect to CFTC/NFA statutory 
disqualification review in swap markets, including, among others: (i) 
The low incidence of statutory disqualification of associated persons; 
(ii) the majority of applications arising out of non-investment related 
conduct by associated persons; (iii) absence of additional statutory 
disqualification forms filed by swap dealers to request NFA 
determination with respect to a new statutory disqualification for any 
of the individuals.\471\ The Commission also notes that parallel swap 
markets remain large, with multi-name credit default swaps representing 
an increasing share of credit-default swap notional outstanding, and 
highly liquid.\472\
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    \471\ See Rule of Practice Adopting Release, 84 FR at 4931.
    \472\ See, e.g., Inaki Aldasoro & Torsten Ehlers, ``The Credit 
Default Swap Market: What a Difference a Decade Makes,'' BIS 
Quarterly Review, June 2018, at 3 (Graph 1), available at https://www.bis.org/publ/qtrpdf/r_qt1806b.pdf, last accessed March 26, 2019; 
see also Richard Haynes & Lihong McPhail, ``The Liquidity of Credit 
Default Index Swap Networks'' (Working Paper, 2017).
---------------------------------------------------------------------------

    Three factors may reduce the magnitude of the above economic costs 
and benefits. First, the Commission will continue to be able, in 
appropriate cases, to institute proceedings under Exchange Act Section 
15F(l)(3) to determine whether the Commission should censure, place 
limitations on the activities or functions of such person, suspend for 
a period not exceeding 12 months, or bar such person from being 
associated with an SBS Entity.\473\
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    \473\ See 15 U.S.C. 78o-10(l)(3).
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    Second, the security-based swap market is an institutional one, 
with investment advisers, banks, pension funds, insurance companies, 
and ISDA-recognized dealers accounting for 99.8% of transaction 
activity.\474\ While security-based swaps may be more opaque than 
equity and bonds and may give rise to greater information asymmetries 
between dealers and non-dealer counterparties, institutional 
counterparties may be more informed and sophisticated compared to 
retail clients. However, given limited data availability on the 
domiciles of non-dealer counterparties, the Commission is unable to 
quantify how many non-institutional foreign counterparties may be 
affected by the proposed Rule.
---------------------------------------------------------------------------

    \474\ See Rule of Practice 194 Adopting Release, Table 1 of the 
economic baseline.
---------------------------------------------------------------------------

    Importantly, the concentrated nature of security-based swap market-
facing activity may reduce the ability of counterparties to choose to 
transact with SBS Entities that do not rely on disqualified personnel. 
As the Commission estimated elsewhere, the top five dealer accounts 
intermediated approximately 55% of all SBS Entity transactions by gross 
notional, and the median counterparty transacted with 2 dealers in 
2017.\475\ While reputational incentives may flow from a customer's 
willingness to deal with an SBS Entity, the fact that the customer may 
not have many dealers to choose from weakens those incentives. However, 
the Commission also notes that market concentration is itself 
endogenous to market participants' counterparty selection. That is, 
counterparties trade off the potentially higher counterparty risk of 
transacting with SBS Entities that rely on disqualified associated 
persons against the attractiveness of security-based swaps (price and 
non-price terms) that they may offer. If a large number of 
counterparties choose to move their business to SBS Entities that do 
not rely on disqualified associated persons (including those SBS 
Entities that may currently have lower market share), market 
concentration itself can decrease.
---------------------------------------------------------------------------

    \475\ See Rule of Practice 194 Adopting Release, 84 FR at 4925.
---------------------------------------------------------------------------

    Third, as discussed above, the exclusion will not be available with 
respect to an associated person if that associated person is currently 
subject to an order described in subparagraphs (A) and (B) of Section 
3(a)(39) of the Exchange Act, with the limitation that an order by a 
foreign financial regulatory authority described in subparagraphs 
(B)(i) and (B)(iii) of Section 3(a)(39) shall only apply to orders by a 
foreign financial regulatory authority in the jurisdiction where the 
associated person is employed or located. In such circumstances, 
affected SBS Entities will be required to apply for relief under Rule 
of Practice 194 and will be unable to allow their disqualified 
associated person entities to effect or be involved in effecting

[[Page 24270]]

security-based swaps on their behalf, pending review by the Commission.
2. Effects on Efficiency, Competition, and Capital Formation
    The Commission has assessed the effects of the proposed amendment 
on efficiency, competition, and capital formation. As noted above, 
limiting the ability of statutorily disqualified persons to effect or 
be involved in effecting security-based swaps on behalf of SBS Entities 
may reduce compliance and counterparty risks and may facilitate 
competition among higher quality associated persons and SBS Entities, 
thereby enhancing integrity of security-based swap markets. At the same 
time, limits on the participation of disqualified employees in 
security-based swap markets may result in costs related to replacing or 
reassigning an employee to SBS Entities or applying to the Commission 
for relief. This may disrupt existing counterparty relationships across 
closely linked swap and security-based swap markets and increase 
transaction costs borne by counterparties, adversely effecting 
efficiency and capital formation in swap and security-based swap 
markets.
    In addition, if more SBS Entities seek to avail themselves of the 
exclusion and retain, hire, or increase their reliance on disqualified 
foreign personnel in their transactions with foreign counterparties, a 
greater number of disqualified persons may seek employment and business 
opportunities in security-based swap markets. As discussed in the Rule 
of Practice 194 Adopting Release,\476\ there is a dearth of economic 
research on these issues in derivatives markets, and the research in 
other settings cuts both ways. On the one hand, a greater number of 
disqualified persons active in security-based swaps could increase the 
``lemons'' problem and related costs of adverse selection,\477\ since 
market participants may demand a discount from counterparties if they 
expect a greater chance that counterparties have employed disqualified 
persons that are involved in arranging transactions. This effect could 
lead to a reduction in informational efficiency and capital formation. 
On the other hand, more flexibility in employing disqualified persons 
may also increase competition and consumer surplus.\478\
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    \476\ See Rule of Practice 194 Adopting Release, 84 FR at 4923.
    \477\ See, e.g., George A. Akerlof, ``The Market for ``Lemons'': 
Quality Uncertainty and the Market Mechanism,'' 84 Q. J. Econ. 488 
(1970). Informational asymmetry about quality can negatively affect 
market participation and decrease the amount of trading--a problem 
commonly known as adverse selection. When information about 
counterparty quality is scarce, market participants may be less 
willing to enter into transactions, and the overall level of trading 
may fall.
    \478\ See Jonathan Berk & Jules H. van Binsbergen, ``Regulation 
of Charlatans in High-Skill Professions'' (Stanford University 
Graduate School of Business, Research Paper No. 17-43, 2017), 
available at https://ssrn.com/abstract=2979134. The paper models the 
costs and benefits of both disclosure and standards regulation of 
``charlatans'' (professionals who sell a service they do not 
deliver) in high skill professions. When there is a mismatch between 
high demand for a skill and short supply of the skill, the presence 
of charlatans in a profession is an equilibrium outcome. 
Importantly, reducing the number of charlatans by regulation 
decreases consumer surplus in their model. Both standards and 
disclosure regulations drive charlatans out of the market, but the 
resulting reduction in competition amongst producers actually 
reduces consumer surplus. In turn, producers strictly benefit from 
such regulation.
---------------------------------------------------------------------------

    The proposed amendment would preserve an equal competitive standing 
of U.S. and non-U.S. SBS Entities with disqualified foreign personnel 
as they compete for business with foreign counterparties and foreign 
branches of U.S. counterparties. Importantly, under the baseline, both 
U.S. and non-U.S. Swap Entities are able to transact with foreign 
counterparties relying on their foreign disqualified personnel without 
applying to the CFTC for relief from the statutory prohibition. As 
discussed in the economic baseline, the Commission expects extensive 
cross-registration of dealers across the two markets. As a result, 
dually registered U.S. SBS Entities would be able to rely on the same 
disqualified foreign personnel in transacting with the same 
counterparties in both swap (e.g., index CDS) and security-based swap 
(e.g., single-name CDS) markets.
    The proposed amendment may create incentives for SBS Entities to 
relocate their personnel (or the activities performed by U.S. 
personnel) outside the U.S. to be able to avail themselves of the 
proposed exclusion and avoid being bound by the statutory prohibition. 
The cost of relocation will depend on many factors, such as the number 
of positions being relocated, the location of new operations, the costs 
of operating at the new location, and other factors. These factors 
will, in turn, depend on the relative volumes of market-facing activity 
that a firm carries out on different underliers and with counterparties 
in different jurisdictions. As a result of these dependencies, the 
Commission cannot reliably quantify the costs of these alternative 
approaches to compliance. However, the Commission believes that firms 
would seek to relocate their personnel (or the activities performed by 
U.S. personnel) only if they expect the relocations to be profitable.
    Further, the proposed amendment may improve the employment and 
career outcomes of disqualified foreign personnel relative to 
disqualified U.S. personnel. As a result, disqualified personnel may 
seek to relocate outside the U.S. and seek employment by SBS Entities 
in their foreign business. To the degree that such relocation occurs, 
it may reduce the effective scope of application of the statutory 
prohibition. This may also lead to a separating equilibrium: It may 
decrease counterparty risks and adverse selection costs of security-
based swaps in SBS Entities and in transactions with U.S. 
counterparties, and increase counterparty risks and adverse selection 
costs in transactions with foreign counterparties and foreign branches 
of U.S. counterparties.
3. Alternatives Considered
    The Commission has considered several alternatives to the proposed 
amendment to Rule of Practice 194(c)(2).
a. Relief for All SBS Entities With Respect to Non-U.S. Personnel 
Transacting With Non-U.S. Counterparties But Not With Foreign Branches 
of U.S. Counterparties
    The Commission could have proposed an exclusion for all SBS 
Entities with respect to foreign personnel transacting with foreign 
counterparties, without making the exclusion available to foreign 
personnel transacting with foreign branches of U.S. counterparties. As 
discussed above, a history of statutorily disqualifying conduct may 
signal higher ongoing risks to counterparties. SBS Entities may choose 
to replace disqualified foreign personnel due to reputational and 
compliance costs. In addition, the security-based swap market is 
institutional in nature, and better informed institutional 
counterparties may choose to move their business to another employee or 
another SBS Entity without disqualified personnel. To the degree that 
SBS Entities do not replace disqualified personnel and counterparties 
do not move their business, the alternative may decrease risks to 
foreign branches of U.S. counterparties relative to the proposed 
approach. Since both potential returns and potential risks of foreign 
branches may flow through to some U.S. parents (depending on the 
counterparty's ownership and organizational structure), the alternative 
could reduce the returns and risks of such U.S. counterparties' 
parents.
    At the same time, the alternative approach would involve unequal 
effects on foreign counterparties and foreign

[[Page 24271]]

branches of U.S. counterparties. Specifically, under the alternative, 
foreign counterparties would be able to choose between transacting with 
those SBS Entities that employ statutorily disqualified personnel and 
those that do not, whereas foreign branches of U.S. counterparties 
would only be able to transact with SBS Entities that do not employ 
statutorily disqualified personnel. If SBS Entities with disqualified 
personnel compensate for potentially higher counterparty risks with, 
for example, more attractive terms of security-based swaps, the 
alternative may introduce disparities in access and cost of security-
based swaps available to foreign counterparties as compared to those 
available to foreign branches of U.S. counterparties.
b. Relief for Non-U.S. Person SBS Entities With Respect to Non-U.S. 
Personnel Transacting With Non-U.S. Counterparties and Foreign Branches 
of U.S. Counterparties
    The Commission has considered a narrower alternative exclusion 
limited to non-U.S. person SBS Entities relying on non-U.S. personnel 
in their transactions with foreign counterparties and foreign branches 
of U.S. counterparties. The alternative exclusion would be subject to 
the same limitation as the proposal, discussed above: An SBS Entity 
would not be able to rely on the exclusion with respect to an 
associated person currently subject to an order that prohibits such 
person from participating in the U.S. financial markets, including the 
securities or swap market, or foreign financial markets.
    Relative to the proposed amendment, this alternative would broaden 
the effective scope of application of the statutory prohibition and 
might reduce ongoing compliance and counterparty risks for foreign 
counterparties and foreign branches of U.S. counterparties. Under the 
alternative, disqualified foreign personnel of U.S. SBS Entities would 
be unable to transact without the costs and delays related to 
applications for relief. This might decrease the number of disqualified 
foreign personnel transacting in security-based swap markets and 
seeking to associate with U.S. SBS Entities. Lower market participation 
of disqualified personnel on behalf of U.S. SBS Entities in their 
foreign transactions may reduce the costs of adverse selection and 
increase foreign counterparty willingness to transact with U.S. SBS 
Entities in security-based swaps.
    At the same time, it would result in a disparate competitive 
standing between U.S. SBS Entities and non-U.S. person SBS Entities as 
they are competing for business with foreign counterparties and foreign 
branches of U.S. counterparties. This alternative would allow non-U.S. 
SBS Entities to enjoy flexibility in hiring, retaining, and replacing 
non-U.S. personnel and in staffing foreign offices with personnel 
engaged in transactions with foreign counterparties. However, U.S. SBS 
Entities would be unable to rely on the exclusion and would have to 
either replace an employee or apply under Rule of Practice 194, 
incurring related costs and delays. To the degree that SBS Entities 
pass along costs to their counterparties, relative to the proposed 
exclusion, this narrower alternative may result in somewhat lower 
availability or worse terms of security-based swaps and may somewhat 
reduce the choice of dealers for foreign counterparties and foreign 
branches of U.S. counterparties. Finally, this approach would be 
inconsistent with the CFTC's relief for Swap Entities. Given expected 
extensive cross-registration and active cross-market participation by 
counterparties, a lack of comparable treatment of disqualification 
across swaps and security-based swaps would make it harder for the same 
U.S. SBS Entities to transact relying on the same foreign personnel 
with the same foreign counterparties in related markets.
    Further, under the alternative, foreign personnel of U.S. SBS 
Entities would not have the same competitive standing as foreign 
personnel of non-U.S. SBS Entities when engaging in business with the 
same foreign counterparties. The Commission also notes that the 
definition of a U.S. person is based on a natural person's residency in 
the United States. As discussed above, excluding foreign personnel of 
foreign SBS Entities creates incentives for all disqualified U.S. 
personnel employed by foreign SBS Entities to be transferred to a 
foreign office in order to legally become non-U.S. personnel eligible 
for the alternative exclusion. Of course, the choice made by a non-U.S. 
SBS Entity to transfer disqualified U.S. personnel abroad will reflect 
the value of an employee's skills and expertise, costs to reputation 
with counterparties, the number of positions being moved, and internal 
organizational structures of a non-U.S. SBS Entity. However, SBS 
Entities are commonly part of large financial groups with many domestic 
and foreign regional offices. Therefore many non-U.S. SBS Entities may 
be able to relocate statutorily disqualified U.S. personnel to foreign 
offices and rely on the exclusion.
    Under this alternative, however, disqualified personnel of U.S. SBS 
Entities would be unable to relocate to a foreign office and rely on 
the exclusion, adding to the competitive disparities between 
disqualified personnel of U.S. and foreign SBS Entities transacting 
with the same foreign counterparties. As a result, under the 
alternative, statutorily disqualified personnel of U.S. SBS Entities 
may seek employment with foreign SBS Entities and continue to transact 
with the same foreign counterparties on behalf of non-U.S. SBS 
Entities.
    The Commission continues to recognize that, due to adverse 
selection costs and compliance risks related to hiring and retaining 
disqualified persons, many SBS Entities may choose not to hire or may 
fire and replace statutorily disqualified employees. However, this 
incentive may be weaker with respect to personnel whose conduct giving 
rise to disqualification occurred in jurisdictions where statutory 
disqualification is not public information.
c. Relief for Non-U.S. SBS Entities With Respect to Both U.S. and Non-
U.S. Personnel Transacting With Foreign Counterparties and Foreign 
Branches of U.S. Counterparties
    The Commission has considered excluding from the statutory 
prohibition both U.S. and foreign disqualified personnel, but limiting 
the relief to non-U.S. person SBS Entities transacting exclusively with 
foreign counterparties or foreign branches of U.S. counterparties. The 
alternative exclusion would be subject to the same limitation as the 
proposal, discussed above: An SBS Entity would not be able to rely on 
the exclusion with respect to an associated person currently subject to 
an order that prohibits such person from participating in the U.S. 
financial markets, including the securities or swap market, or foreign 
financial markets.
    Under the alternative, non-U.S. SBS Entities would enjoy full 
flexibility in hiring, retaining, and replacing personnel and in 
staffing both U.S. and non-U.S. offices with personnel engaged in 
transactions with foreign counterparties. To the degree that non-U.S. 
SBS Entities pass along costs to their counterparties, this may result 
in somewhat higher availability or improved terms of security-based 
swaps for foreign counterparties. Further, under the alternative, 
disqualified U.S. personnel would have the same competitive standing as 
disqualified foreign personnel with similar skills and expertise 
transacting on behalf of non-U.S. SBS Entities with the same foreign

[[Page 24272]]

counterparties. For example, disqualified U.S. personnel transacting 
with foreign counterparties and foreign branches of U.S. counterparties 
would not need to relocate to a foreign office of a foreign SBS Entity 
to avail themselves of the exclusion.
    Relative to the proposed Rule, this alternative would increase the 
competitive gap between U.S. and non-U.S. SBS Entities in their ability 
to hire, retain, and locate disqualified personnel as they compete for 
business with foreign counterparties. To the degree that U.S. SBS 
Entities may wish to begin or continue to associate with disqualified 
personnel despite potential reputation costs, U.S. SBS Entities would 
be required to apply with the Commission and disallow disqualified 
personnel from effecting security-based swaps pending Commission 
action. At the same time, foreign SBS Entities would be able to freely 
hire and retain disqualified personnel in the U.S. and allow them to 
engage in security-based swap transactions with foreign counterparties 
and foreign branches of U.S. counterparties.
    As noted in the economic baseline, this alternative approach is 
inconsistent with the relief from the CFTC's requirements that is 
available to both U.S. and non-U.S. SBS Entities with respect to only 
foreign personnel. Given expected extensive cross-registration and 
active cross-market participation by counterparties, differential 
treatment of disqualification may disrupt counterparty relationships 
between the same dually registered SBS Entities transacting with the 
same foreign counterparties in related markets.
    Under the alternative and relative to the proposed amendment, 
disqualified U.S. personnel of non-U.S. SBS Entities may enjoy better 
employment and career outcomes, which may increase the number of 
disqualified personnel transacting in security-based swap markets and 
seeking to associate with SBS Entities. Greater market participation of 
disqualified personnel on behalf of non-U.S. SBS Entities, particularly 
in jurisdictions where conduct giving rise to disqualification is not 
public or easily accessible information, may increase the costs of 
adverse selection and decrease counterparty willingness to transact 
with non-U.S. SBS Entities in security-based swaps. As a result, some 
foreign counterparties may choose to move their transaction activity 
from non-U.S. to U.S. SBS Entities.
    The magnitude of the above economic effects of the alternative 
approach may be limited by three factors. First, many non-U.S. SBS 
Entities may choose to locate personnel transacting with foreign 
counterparties in foreign offices if most of their business is in 
foreign underliers trading in foreign jurisdictions.\479\ As a result, 
some non-U.S. SBS Entities may already locate personnel, including 
statutorily disqualified personnel, dedicated to transacting with 
foreign counterparties outside the United States.
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    \479\ As discussed in part VII.A.2.c, supra, we understand that 
many market participants engaged in market-facing activity prefer to 
use traders and manage risk for security-based swaps in the 
jurisdiction where the underlier is traded.
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    Second, due to reputational and adverse selection costs and 
compliance risks related to hiring and retaining disqualified persons, 
many SBS Entities may choose not to hire, or may fire and replace 
disqualified employees. The incentive to disassociate is strongest in 
jurisdictions in which conduct giving rise to statutory 
disqualification is public information (as in the U.S). As a result, it 
is not clear how often non-U.S. SBS Entities would choose to hire or 
continue to employ disqualified U.S. personnel even if they were able 
to rely on an exclusion and avoid applying for relief under Rule of 
Practice 194.
    Third, the Commission notes that the primary difference between the 
proposed approach and the alternative is in the treatment of U.S. SBS 
Entity personnel. Specifically, under the proposal, U.S. SBS Entities 
may permit non-U.S. personnel to transact with foreign counterparties 
and foreign branches of U.S. counterparties, whereas under the 
alternative they may not. With respect to non-U.S. SBS Entities, the 
proposal provides relief for foreign personnel only; the alternative 
provides relief with respect to both U.S. and foreign personnel. As 
discussed above, the definition of a U.S. person in Rule 3a71-
3(a)(4)(i)(A) under the Exchange Act with respect to a natural person 
is based on residency in the United States. Under the proposal, non-
U.S. SBS Entities may be able to simply transfer statutorily 
disqualified U.S. personnel transacting with foreign counterparties to 
a foreign office in order to become eligible for the proposed 
exclusion. Of course, each non-U.S. SBS Entity's choice to continue to 
employ disqualified U.S. personnel and relocate them abroad would 
likely reflect the value of an employee's skills and expertise, 
reputational costs of continued association, the number of positions 
being moved, and internal organizational structures of each entity, 
among others. However, non-U.S. SBS Entities are commonly members of 
large financial groups with many domestic and foreign regional offices, 
and such relocation is likely to be feasible for some non-U.S. SBS 
Entities. As a result, depending on the ease and costs of such 
relocation and the value of disqualified personnel to the non-U.S. SBS 
Entity, the scope of this alternative with respect to non-U.S. SBS 
Entities may be similar to the effective scope of the proposed 
exclusion with respect to non-U.S. SBS Entities.
d. Relief for All SBS Entities With Respect to All Personnel 
Transacting With Non-U.S. Counterparties and Foreign Branches of U.S. 
Counterparties
    The Commission has considered an exclusion for both U.S. and 
foreign SBS Entities with respect to all personnel transacting with 
foreign counterparties and foreign branches of U.S. counterparties. The 
alternative exclusion would be subject to the same limitation as the 
proposal, discussed above: An SBS Entity would not be able to rely on 
the exclusion with respect to an associated person currently subject to 
an order that prohibits such person from participating in the U.S. 
financial markets, including the securities or swap market, or foreign 
financial markets.
    This alternative would allow both non-U.S. and U.S. SBS Entities to 
enjoy full flexibility in hiring, retaining, and replacing personnel, 
and in staffing both U.S. and non-U.S. offices with personnel engaged 
in transacting with foreign counterparties and foreign branches of U.S. 
counterparties. To the degree that SBS Entities currently pass along 
costs to their counterparties or to the degree disqualified personnel 
may have superior skills or expertise, this may benefit the terms of 
security-based swaps and choice of dealers available to foreign 
counterparties. Further, disqualified U.S. personnel would have the 
same competitive standing as disqualified foreign personnel with 
similar skills and expertise transacting on behalf of SBS Entities with 
the same foreign counterparties.
    Relative to the proposed exclusion, this alternative provides more 
relief from the statutory prohibition and may, thus, increase ongoing 
compliance and counterparty risks for foreign counterparties and 
foreign branches of U.S counterparties. Since all disqualified 
personnel of all SBS Entities transacting with foreign counterparties 
and foreign branches of U.S. counterparties would be excluded from the 
statutory prohibition, more disqualified personnel may seek to 
associate with both U.S. and foreign SBS Entities and to transact with 
foreign counterparties and foreign branches of

[[Page 24273]]

U.S. counterparties. However, as discussed elsewhere in this release 
and in the Rule of Practice 194 Adopting Release, one of the key 
disincentives against continued association with disqualified personnel 
may be reputational. To the degree that information about the 
disqualifying conduct by U.S. personnel may be public and institutional 
customers perceive disqualification as increasing counterparty risk, 
counterparties may move their business, and SBS Entities may simply 
replace disqualified U.S. personnel. As a result, it is not clear that 
SBS Entities would significantly increase their reliance on 
disqualified personnel in transactions with foreign counterparties and 
foreign branches of U.S. counterparties relative to the baseline or the 
proposed approach. Nevertheless, to the degree that they may do so, 
greater market participation of disqualified personnel may increase 
adverse selection costs and decrease such counterparties' willingness 
to participate in security-based swap markets.
    As noted above, a natural person's residency in the United States 
is endogenous. As a result, any exclusion for foreign personnel, but 
not U.S. personnel, transacting with foreign counterparties may result 
in SBS Entities simply transferring disqualified U.S. personnel to a 
foreign office. As the Commission recognized above, this decision by an 
SBS Entity will reflect the uniqueness and value of an employee's 
skills, expertise, and client relationships relative to the 
reputational costs and compliance risks of continuing to employ 
disqualified personnel and directs costs of personnel transfers. 
However, SBS Entities that belong to large global financial groups are 
less likely to be constrained by the location of disqualified personnel 
that they prefer to retain. As a result, the economic effects of this 
alternative may be similar to those of the proposed approach.
e. Relief for All SBS Entities With Respect to Non-U.S. Personnel 
Effecting and Involved in Effecting Security-Based Swaps With U.S. and 
Non-U.S. Counterparties
    The Commission has also considered alternatives excluding from the 
statutory prohibition non-U.S. associated persons involved in effecting 
security-based swaps with both U.S. and non-U.S. counterparties in 
general, or under certain circumstances. For example, the Commission 
has considered excluding from the statutory prohibition non-U.S. 
associated persons involved in effecting security-based swaps with U.S. 
counterparties, if such activity is limited in level or scope (e.g., 
collateral management).
    As discussed in the economic baseline, security-based swap markets 
are global and many SBS Entities actively participate across U.S. and 
non-U.S. markets. Due to economies of scale and scope, some SBS 
Entities may choose not to separate customer facing and/or operational 
activities, such as collateral management and clearing, related to 
security-based swaps with U.S. and non-U.S. counterparties. To the 
degree that some SBS Entities rely on the same personnel across their 
U.S. and non-U.S. business, they are currently unable to hire and 
retain statutorily disqualified personnel absent exemptive relief by 
the Commission. As discussed above, SBS Entities may face reputational 
costs from retaining disqualified employees. To the degree that SBS 
Entities would prefer to hire and retain certain disqualified employees 
due to their superior expertise, skills, and abilities, and despite 
such reputational costs, the alternative would provide beneficial 
flexibility in personnel decisions without necessitating an SBS Entity 
to completely separate the operational side of their U.S and non-U.S. 
businesses (and more flexibility relative to the proposal). Some of 
these benefits may flow through to counterparties in the form of more 
efficient execution of security-based swaps and related services, or 
better price and non-price terms.
    To the degree that statutory disqualification of associated persons 
may increase compliance and counterparty risks, the alternative may 
involve greater risks to U.S. counterparties of SBS Entities relative 
to the proposal. The Commission continues to note that the scope of 
conduct that gives rise to statutory disqualification is broad and 
includes conduct that is not related to investments or financial 
markets. Moreover, the security-based swap market is an institutional 
one, and conduct that gives rise to statutory disqualification in the 
U.S. is generally public. U.S. counterparties that believe statutory 
disqualification is a meaningful signal of quality may vote with their 
feet and choose to transact with non-disqualified personnel or SBS 
Entities that do not rely on disqualified personnel.
    The Commission notes that the alternative would provide broader 
relief compared to CFTC's requirements in swap markets and would not 
result in a harmonized regulatory regime with respect to statutory 
disqualification. Importantly, the full costs and benefits of an 
alternative that provides broader relief from the statutory prohibition 
in security-based swaps compared to the relief available in swap 
markets may not be realized. Specifically, to the degree that market 
participants transact across swap and security-based swap markets with 
the same SBS Entity counterparties, SBS Entities may continue to rely 
on the same personnel who are allowed to effect or be involved in both 
swaps and security-based swap transactions.

E. Certification, Opinion of Counsel, and Employee Questionnaires

    In addition, the Commission is proposing certain guidance on 
requirements regarding the certification and opinion of counsel under 
Rule 15Fb2-4, amendments to registration Rule 15Fb2-1, and 
modifications to the requirement to obtain employee questionnaires 
under proposed Rules 18a-5(a)(10) and (b)(8).
1. Guidance Regarding Rule 15Fb2-4 and Proposed Amendments to Rule 
15Fb2-1
a. Background
    The Commission's proposal retains the adopted certification and 
opinion of counsel requirements, but proposes additional guidance 
regarding the scope of the requirements. Specifically, the guidance 
would clarify that the requirement applies only with respect to the 
foreign laws of the jurisdiction or jurisdictions in which the 
nonresident SBS Entity maintains the covered books and records and that 
covered records include only records that relate to the ``U.S. 
business'' of the nonresident SBS Entity and financial records 
necessary for the Commission to assess compliance with its capital and 
margin rules (if applicable). In addition, the proposed guidance would 
clarify that the certification and opinion of counsel can be predicated 
on the consent of persons whose information is or will be included in 
the books and records, and can consider, under certain circumstances, 
whether the relevant regulatory authority in the foreign jurisdiction 
has previously approved or consented to the Commission requesting and 
obtaining documents from, and conducting on-site inspections or 
examinations at office of, nonresident SBS Entities located in the 
jurisdiction. Finally, the proposed guidance would clarify that the 
certification and opinion of counsel requirements would not need to 
address open contracts predating the filing of the registration 
application. In addition, the proposal would amend

[[Page 24274]]

Rule 15Fb2-1 and establish a conditional registration regime discussed 
in Section IV.A.5 above.
b. Costs, Benefits, and Effects on Efficiency, Competition, and Capital 
Formation
(1) Proposed Guidance
    As the Commission stated in the Registration Adopting Release, the 
Commission's access to books and records and the ability to inspect and 
examine registered SBS Entities facilitates Commission oversight of 
security-based swap markets.\480\ To the degree that the certification 
and opinion of counsel requirements provide assurances regarding the 
Commission's ability to oversee and inspect and examine nonresident SBS 
Entities, the baseline rules may reduce counterparty and compliance 
risks and adverse selection. However, certain nonresident entities may 
lack clarity concerning the certification and opinion of counsel 
requirements.
---------------------------------------------------------------------------

    \480\ See 80 FR at 48972.
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    The recent passage of the EU General Data Protection Regulation 
(GDPR), as well as the potential exit of the United Kingdom from the 
European Union may create significant uncertainty for market 
participants currently intermediating large volumes of security-based 
swaps regarding their ability to comply with the certification and 
opinion of counsel requirements, as well as the background check 
recordkeeping requirements discussed below. In addition, since the 
adoption of SBS Entity registration rules, the Commission has received 
questions regarding specific aspects of the certification and opinion 
of counsel requirements and is aware of concerns about the ability of 
some nonresident market participants to comply with these 
requirements.\481\
---------------------------------------------------------------------------

    \481\ See, e.g., IIB/SIFMA 8/26/2016 Letter; see also IIB 11/16/
2016 Email; Memo to File dated July 24, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-4107153-170272.pdf; Memo to 
File dated June 5, 2018, available at https://www.sec.gov/comments/s7-08-12/s70812-3785770-162712.pdf; Memo to File dated April 30, 
2018, available at https://www.sec.gov/comments/s7-05-14/s70514-4042895-168865.pdf; Memo to File dated April 30, 2018, available at 
https://www.sec.gov/comments/s7-05-14/s70514-4042895-168865.pdf; 
Memo to file dated April 11, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-4035093-168391.pdf; Memo to file dated 
April 4, 2018, available at https://www.sec.gov/comments/s7-05-14/s70514-3405597-162172.pdf; Memo to file dated April 3, 2018, 
available at https://www.sec.gov/comments/s7-05-14/s70514-3405388-162169.pdf.
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    The Commission estimates that nonresident SBS Entities currently 
intermediating approximately 59.8% of all security-based swap notional 
are subject to foreign privacy and secrecy laws, blocking statutes, and 
other legal barriers that may make it difficult or create uncertainty 
about their ability to provide certification and opinion of counsel 
and/or to be subject to inspections and examinations by the 
Commission.\482\ To that extent, such nonresident SBS entities may be 
less likely to apply or become unable to register as SBS Entities when 
compliance with SBS Entity registration rules is required. As a result, 
some nonresident SBS Entities currently intermediating large volumes of 
security-based swap transactions may cease transaction activity or be 
forced to relocate certain operations, books, and records. This may 
result in disruptions to valuable counterparty relationships or 
increased costs to counterparties (to the degree that nonresident SBS 
Entities may pass along the costs of such restructuring in the form of 
higher transaction costs or less attractive security-based swaps). In 
addition, depending on whether and which SBS Entities step in to 
intermediate the newly available market share, there may be significant 
competitive effects.
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    \482\ Since we expect a large number of U.S. SBS Entities will 
have dually registered as Swap Entities, to inform our analysis we 
considered foreign jurisdictions where CFTC staff previously 
provided no-action relief for trade repository reporting 
requirements as they apply to swap dealers (available at https://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/15-01.pdf). This estimate was also informed by a legal analysis of the 
EU General Data Protection Regulation, foreign blocking statutes, 
bank secrecy and employment laws, jurisdiction specific privacy 
laws, and other legal barriers that may inhibit compliance with 
regulatory requirements. These jurisdictions were matched to the 
domicile classifications of TIW accounts likely to trigger 
requirements to register with the Commission as SBS Entities when 
compliance with registration requirements becomes effective, using 
2017 DTCC-TIW data. If foreign jurisdictions amend their data 
privacy and blocking laws, provide guidance, or enter into 
international agreements that would facilitate compliance with 
Commission SBS Entity registration requirements before compliance 
with SBS Entity registration rules becomes effective, or if SBS 
Entities choose to restructure their operations and/or relocate 
their books and records to other jurisdictions (for example, in 
response to the potential exit of the U.K. from the E.U. or GDPR 
restrictions), this figure may over- or under-estimate the security-
based swap market share impacted by the proposed guidance.
---------------------------------------------------------------------------

    The proposed approach could benefit some nonresident entities 
currently intermediating security-based swap markets by reducing 
uncertainty, allowing them to more easily comply with the certification 
and opinion of counsel requirements, and register with the Commission 
while avoiding disruptions to counterparty relationships and potential 
competitive effects to security-based swap markets. For example, based 
on an analysis of foreign privacy and secrecy laws, blocking statutes, 
and other legal barriers and information from market participants, the 
proposed guidance regarding consent may help SBS Entities currently 
intermediating approximately 47.2% of all security-based swap notional 
intermediated by SBS Entities to comply with the certification and 
opinion of counsel requirements, to the extent that those entities 
would otherwise have understood that the certification and opinion of 
counsel cannot be predicated on customer consent.\483\
---------------------------------------------------------------------------

    \483\ This estimate is based on an analysis of 2017 DTCC TIW 
account-level data on the transaction activity of entities likely to 
trigger requirements to register with the Commission as SBS Entities 
when compliance with registration requirements becomes effective. We 
note that customer consent may serve as a part of a broader legal 
basis for the opinion of counsel, and the proposed guidance may help 
those nonresident SBS Entities that are subject to foreign privacy, 
but not necessarily foreign secrecy laws, to comply with the 
certification and opinion of counsel requirements. If foreign 
jurisdictions amend their data privacy and blocking laws, provide 
guidance, or enter into international agreements that would 
facilitate compliance with the opinion of counsel requirement before 
compliance with SBS Entity registration rules become effective, or 
if SBS Entities choose to restructure their operations and/or 
relocate their books and records to other jurisdictions (for 
example, in response to the potential exit of the U.K. from the E.U. 
or GDPR restrictions), this figure may over- or under-estimate the 
security-based swap market share impacted by the proposed guidance.
---------------------------------------------------------------------------

    To the extent that aspects of the proposed guidance may reduce the 
scope of the certification and opinion of counsel by nonresident SBS 
Entities relative to their baseline understanding of Rule 15Fb2-4, the 
proposed guidance may decrease the burden on nonresident SBS Entities 
and the assurances that the Commission will be able to effectively and 
efficiently oversee, inspect, and examine nonresident SBS Entities. 
However, as discussed above, the proposed amendment to Rule 15Fb2-1 
regarding the certification and opinion of counsel requirements would 
not reduce or eliminate independent ongoing obligations of nonresident 
SBS Entities to provide the Commission with direct access to their 
books and records and to permit onsite inspections and examinations.
    Importantly, the Commission recognizes that the magnitude of the 
economic effects of the proposed guidance is influenced by how market 
participants currently understand the scope of the certification and 
opinion of counsel requirements. Specifically, the proposed guidance 
will only have the economic effects discussed below, to the extent that 
SBS Entities and their counterparties have a broader baseline 
understanding of the scope of existing rules. If market participants 
are

[[Page 24275]]

currently interpreting the scope of the certification and opinion of 
counsel requirements in a manner similar to that provided by the 
proposed guidance, the economic effects of the proposed guidance may be 
de minimis.
(2) Proposed Conditional Registration
    The proposal would also amend Exchange Act Rule 15Fb2-1 to allow 
applicants unable to provide the certification and opinion of counsel 
to become conditionally registered for up to 24 months after the 
compliance date for registration rules. Under the proposal, if an 
entity fails to provide the requisite certification and opinion of 
counsel within 24 months, the Commission may institute proceedings to 
determine whether ongoing registration should be denied.
    The Commission is cognizant of the fact that SBS Entity 
Registration rules and other elements of the Title VII regime will 
apply to an active market. As analyzed in the economic baseline, the 
Commission recognizes that security-based swap markets involve 
extensive cross-border activity, and nonresident SBS Entities 
intermediate a large percentage of security-based swaps. The Commission 
preliminarily believes that the nonresident SBS entities that may face 
uncertainty about their ability to comply with certification and 
opinion of counsel requirements, and are likely to utilize conditional 
registration, are those SBS Entities located in jurisdictions with 
foreign privacy and secrecy laws, blocking statutes, and other legal 
barriers described above.
    The conditional registration element of the proposal may provide 
SBS Entities currently active in security-based swap markets with 
beneficial flexibility and time to relocate some of their operations 
and/or books and records around the constraints of foreign privacy and 
secrecy laws, blocking statutes, and other legal barriers, without 
disrupting ongoing counterparty relationships and market activity. In 
addition, the proposal may facilitate smooth functioning of active 
security-based swap markets as compliance with the Commission's Title 
VII rules becomes required, may benefit both SBS Entities and 
counterparties by preserving SBS Entity--counterparty relationships, 
and may enhance efficiency and capital formation in security-based 
swaps.
    However, conditional registration may reduce the assurances of the 
certification and opinion of counsel regarding the Commission's ability 
to inspect and examine some SBS Entities during the 24-month period. In 
addition, 24 months may not be sufficient for the more complex SBS 
Entities to relocate and restructure their security-based swap market 
activity outside the reach of foreign privacy and secrecy laws, 
blocking statutes, and other legal barriers, particularly as foreign 
laws, statutes and legal barriers evolve. Thus, under the proposal 
there may still be a risk of disruptions to counterparty relationships 
and market activity if conditionally registered SBS Entities having 
large market shares, and transacting with hundreds and thousands of 
counterparties, are unable to meet the certification and opinion of 
counsel requirements within the 24-month period. Moreover, 
counterparties that may rely on the Commission's ability to inspect and 
examine a registered SBS Entity as a signal of higher quality may 
reduce their participation in security-based swap markets, which may 
increase adverse selection. Alternatively, they may vote with their 
feet and shift business from conditionally registered SBS Entities to 
non-conditionally registered SBS Entities. This may enhance competition 
between conditionally registered and non-conditionally registered SBS 
Entities and may create a market incentive for conditionally registered 
SBS Entities to provide the certification and opinion of counsel.
c. Alternatives Considered
    The Commission considered alternative approaches to the proposed 
guidance and amendments regarding the certification and opinion of 
counsel requirements. Specifically, the Commission considered proposing 
some, but not other, aspects of the above relief. For example, the 
Commission considered proposing only elements of the guidance 
concerning covered foreign laws and covered records. The Commission has 
also considered proposing guidance about covered foreign laws and 
covered records, as well as open contracts and timing of certification, 
but not aspects of the relief allowing certification and opinion of 
counsel to be predicated on customer consent or arrangements with 
foreign regulators. The Commission has also considered shortening the 
conditional registration period (e.g., to 12 or 18 months). Relative to 
the proposal, these alternatives would provide less relief and greater 
uncertainty to nonresident entities that may seek to register with the 
Commission as an SBS Entity, which may increase the likelihood of 
disruptions of counterparty relationships and risks of adverse effects 
on market activity in security-based swaps. At the same time, these 
alternatives may increase the scope, strength, and/or timeliness of the 
certification and opinion of counsel requirement, which may give the 
Commission further assurances regarding its ability to oversee 
security-based swap activity of nonresident entities applying for 
registration. Importantly, regardless of the certification and opinion 
of counsel requirement, all nonresident SBS Entities would continue to 
have independent ongoing obligations to provide the Commission with 
access to their books and records and to permit on-site inspections and 
examinations.
    The Commission has considered an alternative under which all 
conditionally registered SBS Entities would be required to provide 
disclosures to U.S. counterparties or to all counterparties regarding 
their conditional registration. Such disclosures may help inform 
counterparties regarding the conditional registration status of SBS 
Entities with which they may wish to transact. To the degree that 
counterparties may consider conditional registration as a signal of 
lower quality or may seek to build long-term relationships with non-
conditionally registered SBS Entity counterparties, and to the degree 
such counterparties are otherwise uninformed about SBS Entities' 
registration status, this alternative may facilitate more efficient 
counterparty selection. The alternative may also create reputational 
incentives for conditionally registered SBS Entities to provide the 
requisite certification and opinion of counsel to the Commission, to 
the degree that some counterparties may interpret conditional 
registration as a signal of reduced quality.
    However, such disclosure requirements would involve burdens on SBS 
Entities related to the preparation and production of such disclosures. 
Related costs may be partly or fully passed along to SBS Entities' 
counterparties in the form of more expensive security-based swaps. As 
noted above, the Commission preliminarily believes that nonresident SBS 
Entities most likely to utilize conditional registration are those SBS 
Entities that face uncertainty regarding their ability to comply with 
certification and opinion of counsel requirements due to privacy and 
secrecy laws, blocking statutes, and other legal barriers in their 
foreign jurisdictions. Based on the analysis of 2017 TIW data, the 
Commission estimates that there are approximately 9,611 unique 
relationships (pairs of counterparties and accounts likely to trigger 
SBS Entity registration requirements with

[[Page 24276]]

registered office locations in jurisdictions with foreign privacy and 
secrecy laws, blocking statutes, and other legal barriers) or 
approximately 72.6% of all unique dealer-counterparty pairs active in 
security-based swap market that may become subject to the disclosure 
requirement.\484\ Limiting such disclosure requirements to 
relationships between dealer accounts in jurisdictions with foreign 
privacy and secrecy laws, blocking statutes, and other legal barriers 
and U.S. non-dealer counterparties may affect 4,322 unique dealer-U.S. 
counterparty relationships. Since many of the dealer accounts belong to 
large financial groups, the Commission can also use the domicile of the 
parent organization to categorize dealers at the level of the financial 
group (at the firm-level) instead of at the level of the dealer (at the 
account-level). Using this more conservative approach, there may be 779 
unique dealer-counterparty ties (or 25.7% of all ties) that may be 
affected by foreign privacy and secrecy laws, blocking statutes, and 
other legal barriers and the alternative disclosure requirement. The 
Commission also notes that, as a baseline matter, SBS Entity 
registration forms are public and the Commission may, in the course of 
Commission business, publish a list of registered SBS Entities and note 
the conditional registration status of such entities on the 
Commission's public website.
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    \484\ This estimate includes unique dealer-counterparty pairs 
where the counterparty is another dealer. Excluding dealer-dealer 
pairs reduces the estimate by 279, with an estimate of 9,332 unique 
pairs between non-dealer counterparties and dealer accounts with 
registered office locations in jurisdictions with foreign privacy 
and secrecy laws, blocking statutes, and other legal barriers (or 
approximately 70.5% of all unique dealer-counterparty pairs).
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    As an alternative, the Commission has also considered lengthening 
the conditional registration period (to, e.g., 5 or 10 years) or 
eliminating the certification and opinion of counsel requirements. As 
discussed in prior sections, the Commission continues to believe that 
access to books and records and the ability to inspect and examine 
registered SBS Entities facilitates Commission oversight of security-
based swap markets. These alternatives may limit the scope of 
assurances provided to the Commission by SBS Entity applicants 
regarding the Commission's ability to inspect and examine SBS Entities. 
To the degree that some nonresident SBS Entities may be unable to 
provide certification or opinion of counsel due to their inability to 
become subject to Commission inspections and examinations (as a result 
of, for example, foreign privacy and secrecy laws, blocking statutes, 
and other legal barriers), these alternatives may reduce the extent of 
Commission inspections and examinations. However, these alternatives 
would reduce or eliminate certification and opinion of counsel burdens, 
related uncertainty, and liability risk. Importantly, under these 
alternatives, all nonresident SBS Entities would continue to have 
independent ongoing obligations to provide the Commission with access 
to their books and records and to permit onsite inspections and 
examinations. The Commission preliminarily believes that the proposed 
approach better balances these competing considerations and that 24 
months is sufficient time for nonresident SBS Entities to comply with 
the certification and opinion of counsel requirements (and relocate 
their books, records, and other operations, if needed).
2. Proposed Modifications to Proposed Rules 18a-5(a)(10) and (b)(8)
a. Background
    As discussed in the economic baseline, in the Recordkeeping and 
Reporting Proposing Release, the Commission proposed a background 
questionnaire recordkeeping requirement for stand-alone and bank SBS 
Entities that parallels similar broker-dealer recordkeeping 
requirements. The Commission is proposing modifications to the proposed 
questionnaire recordkeeping requirement, which would modify proposed 
Rules 18a-5(a)(10) and 18a-5(b)(8). The proposed modifications would 
tailor the proposed questionnaire requirement in two ways. First, under 
the proposed modifications, an SBS Entity would not be required to make 
and keep current questionnaires if the SBS Entity is excluded from the 
statutory prohibition in Section 15F(b)(6) with respect to the 
associated person. Second, the questionnaire or application for 
employment executed by an associated person who is not a U.S. person 
need not include certain information if the law of the jurisdiction 
where the associated person is located or employed prohibits the 
receipt of that information or the creation or maintenance of records 
reflecting that information.
b. Costs, Benefits, and Effects on Efficiency, Competition, and Capital 
Formation
    The proposed questionnaire recordkeeping requirements are intended 
to support Commission oversight and entity compliance with the 
substantive requirements of Rule 15Fb6 regarding statutory 
disqualification. The proposed modifications to proposed Rule 18a-5 
eliminate the questionnaire requirement with respect to associated 
persons excluded from the statutory prohibition. These modifications 
are unlikely to adversely affect Commission oversight of SBS Entity 
compliance with the statutory prohibition since those associated 
persons are already excluded from the statutory prohibition. At the 
same time, the proposed modifications may involve modest reductions to 
corresponding paperwork burdens. To the degree that SBS Entities may 
pass along these burdens to counterparties, the proposed modifications 
may also result in some benefits to counterparties of these SBS 
Entities.
    As discussed in section VIII.B, the Commission estimates that the 
addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) to proposed 
Rule 18a-5 would reduce initial costs associated with proposed rule 
18a-5 by $51,943 and ongoing costs by $64,622.\485\ Therefore, the cost 
savings to SBS Entities and counterparties from this proposed 
modification are likely to be modest.
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    \485\ Initial cost reduction for all stand-alone and bank SBS 
Entities reduction: (127 x Attorney at $409 per hour) = $51,943. 
Ongoing cost reduction for all stand-alone and bank SBS Entities 
reduction: (158 x Attorney at $409 per hour) = $64,622.
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    In addition, as discussed above, the Commission is proposing to 
modify, by adding paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B), the 
questionnaire requirement with respect to non-U.S. associated persons 
of SBS Entities if the receipt of that information, or the creation or 
maintenance of records reflecting that information, would result in a 
violation of applicable law in the jurisdiction in which the associated 
person is employed or located. The primary intended benefit of this 
proposed modification is to enable certain nonresident SBS Entities to 
continue intermediating transactions with their counterparties. 
Specifically, due to the existence of foreign privacy and secrecy laws, 
blocking statutes, and other legal barriers, the proposed tailoring of 
the questionnaire requirement can enable more nonresident market 
participants to register as SBS Entities without a potentially costly 
relocation or business restructuring of certain operations and records 
to jurisdictions outside the reach of such laws. This may also reduce 
costs for counterparties (as nonresident SBS Entities may pass along 
related costs to counterparties in the form of more expensive security-

[[Page 24277]]

based swaps) and may preserve valuable counterparty relationships.
    In addition, this proposed modification may also involve some 
modest burden reductions. As discussed in section VIII.B, the proposed 
modification to add paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to 
proposed Rule 18a-5 is expected to decrease the initial costs 
associated with proposed rule 18a-5 by $25,767 and ongoing costs by 
$32,311.\486\ In aggregate, as estimated in section VIII.B, under both 
of the proposed modifications, initial and ongoing costs of all stand-
alone and bank SBS Entities related to complying with proposed Rule 
18a-5 are estimated at $233,130 and $291,617 respectively.\487\
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    \486\ Initial cost reduction for all stand-alone and bank SBS 
Entities reduction: (63 x Attorney at $409 per hour) = $25,767. 
Ongoing cost reduction for all stand-alone and bank SBS Entities 
reduction: (79 x Attorney at $409 per hour) = $32,311.
    \487\ Initial costs for all stand-alone and bank SBS Entities 
reduction under the proposed modifications to proposed Rule 18a-
5(a)(10) and (b)(8): ((760-127-63) x Attorney at $409 per hour) = 
$233,130. Ongoing costs for all stand-alone and bank SBS Entities 
reduction: ((950-158-79) x Attorney at $409 per hour) = $291,617.
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    The Commission continues to recognize that certain recordkeeping 
requirements may facilitate compliance and Commission oversight of SBS 
Entities. In proposing a tailored questionnaire requirement with 
respect to non-U.S. associated persons, the Commission has considered 
the value of such recordkeeping for compliance with Rule 15Fb6-2 and 
related oversight, as well as the costs and potential disruptions to 
counterparty relationships and market activity that may result when 
foreign jurisdictions do not allow nonresident SBS Entities to receive, 
create, or maintain such records. Importantly, as discussed above, the 
Commission continues to note that the proposed tailoring of the 
requirement in (a)(10)(iii)(B) and (b)(8)(iii)(B) does not eliminate or 
affect the scope of all SBS Entities' ongoing obligations to comply 
with Section 15F(b)(6) of the Exchange Act and Rule 15Fb6-2, with 
respect to every associated person that effects or is involved in 
effecting security-based swaps and is not subject to an exclusion from 
the statutory disqualification prohibition in Section 15F(b)(6) of the 
Exchange Act.
    Finally, the proposed approach involves a disparate treatment of 
broker-dealer SBS Entities and stand-alone and bank SBS Entities. Based 
on an analysis of 2017 TIW data and filings with the Commission, out of 
50 participants likely to register with the Commission as security-
based swap dealers, the Commission estimates that 16 market 
participants have already registered with the Commission as broker-
dealers; 9 market participants will be stand-alone security-based swap 
dealers, and up to 25 participants will be bank security-based swap 
dealers.\488\
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    \488\ We note that these figures are based on current market 
activity in security-based swaps. We are unable to quantify the 
number of market participants currently expected to register as 
broker-dealer, bank, or stand-alone security-based swap dealers that 
may choose to restructure their U.S. security-based swap market 
participation in response to the pending substantive requirements of 
Title VII, such as capital and margin requirements.
---------------------------------------------------------------------------

    Under the proposal, SBS Entities that are not stand-alone or bank 
SBS Entities would be required to make and keep current a questionnaire 
or application for employment for associated persons with respect to 
whom the broker-dealer SBS Entity is excluded from the prohibition in 
Exchange Act 15F(b)(6), incurring corresponding compliance burdens, 
albeit modest, estimated above. In addition, to the extent that some 
SBS Entities that are not stand-alone or bank SBS Entities are heavily 
reliant on employees in jurisdictions with foreign privacy and secrecy 
laws, blocking statutes, and other legal barriers in their security-
based swap business, they may be unable to comply with the employee 
questionnaire requirement and register with the Commission. These SBS 
Entities would be unable to register without a relocation or 
restructuring of various records and or operations, involving costs for 
such SBS Entities--costs that may be passed along to counterparties or 
disrupt existing counterparty relationships. This may reduce the 
competitive standing of SBS Entities cross-registered as broker-dealers 
and their employees in certain foreign jurisdictions and improve the 
competitive standing of stand-alone and bank SBS Entities and their 
employees in foreign data privacy jurisdictions.
    The Commission notes that broker-dealer SBS Entities are already 
subject to a questionnaire requirement under Rule 17a-3(a)(12). The 
Commission preliminarily believes that such entities are making and 
keeping current employment questionnaires and applications for all of 
their associated persons in their normal course of business. In 
addition, the Commission preliminarily believes that such SBS Entities 
have already structured their security-based swap business in a manner 
that would enable them to comply with this requirement without 
disrupting transaction activity or ongoing counterparty relationships. 
The sunk cost nature of such structuring of broker-dealers' security-
based swap business may partly mitigate the above competitive effects.
c. Alternatives Considered
    The Commission has considered an alternative approach, which would 
provide the same relief (by also amending Rule 17a-3(a)(12) and 
providing the same relief to broker-dealer SBS Entities) with respect 
to: (i) Exemption based on the non-U.S. associated SBS Entity's 
exclusion from the prohibition under Section 15F(b); and (ii) exemption 
based on local law.
    The alternative would benefit a greater number of SBS Entities and 
counterparties by extending the proposed relief (with its benefits 
discussed above) to all SBS Entities in their security-based swap 
business. Moreover, the alternative would eliminate the competitive 
disparities between broker-dealer and stand-alone and bank SBS Entities 
discussed above.
    However, the Commission continues to recognize that recordkeeping 
requirements are essential to the inspection and examination process 
and facilitate effective oversight of the markets the Commission 
regulates. Importantly, as discussed above, broker-dealer SBS Entities 
are already subject to a questionnaire requirement under Rule 17a-
3(a)(12). The Commission preliminarily believes that broker-dealer SBS 
Entities have already located and structured their security-based swap 
business in a way that would allow them to comply with the 
questionnaire requirement. At the same time, the Commission understands 
that stand-alone and bank SBS Entities active in security-based swap 
markets are not currently subject to similar recordkeeping requirements 
and that the questionnaire requirement, as proposed, may require these 
entities to relocate their security-based swap business and staff to 
other jurisdictions. This may disrupt counterparty relationships and 
ongoing business transactions between stand-alone and bank SBS Entities 
and their customers.
    The Commission also understands that broker-dealer SBS Entities are 
routinely making and keeping current employment questionnaires and 
applications for all of their associated persons, which may reduce the 
benefits of the above alternative. However, if such baseline behavior 
of broker-dealer SBS Entities is a result of Rule 17a-3 currently in 
effect and not of compliance practices optimal for each broker-dealer 
SBS Entity, the alternative

[[Page 24278]]

may reduce burdens \489\ and provide beneficial flexibility in 
recordkeeping practices for broker-dealer SBS Entities with respect to 
associated persons excluded from the statutory prohibition. The 
Commission continues to note that the proposed recordkeeping 
requirement in Rule 18a-5 is intended to support substantive 
obligations with respect to statutory disqualification and that such 
substantive obligations would no longer exist with respect to 
associated persons of broker-dealer SBS Entities effecting or involved 
in effecting security-based swaps and exempt from the statutory 
prohibition under, for instance, proposed Rule of Practice 194(c)(2).
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    \489\ As acknowledged above, the overall burdens of compliance 
with proposed Rule 18a-5 are relatively modest; however, fixed costs 
may be more significant for smaller entities.
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F. Request for Comment

    The Commission requests comment on all aspects of the economic 
analysis of the proposed amendment to Rule 3a71-3. To the extent 
possible, the Commission requests that commenters provide supporting 
data and analysis with respect to the benefits, costs, and effects on 
competition, efficiency, and capital formation of adopting the proposed 
amendment or any reasonable alternatives. In particular, the Commission 
asks commenters to consider the following questions:

    1. Are there costs and benefits associated with the proposed 
amendment that the Commission has not identified? If so, please 
identify them and if possible, offer ways of estimating these costs 
and benefits.
    2. In the commenter's view, what are the costs and benefits 
associated with Alternative 1, and what are the costs and benefits 
associated with Alternative 2?
    3. Are there effects on efficiency, competition, and capital 
formation stemming from the proposed amendment that the Commission 
has not identified? If so, please identify them and explain how the 
identified effects result from the proposed amendment.
    4. Are there data sources or data sets that can help the 
Commission refine its estimates of the costs and benefits associated 
with the proposed amendment? If so, please identify them.
    5. Are there alternatives to the proposed amendment that the 
Commission has not considered? If so, please identify and describe 
them.
    6. In the commenter's view, is the estimation of the initial 
costs of current Exchange Act Rules 17a-3 and 17a-4, including the 
assumptions used, appropriate? If not, please explain how the 
estimation can be improved.
    7. In the commenter's view, is the estimation of the ongoing 
costs of meeting registration requirements as a broker-dealer,\490\ 
including the assumption used, appropriate? If not, please explain 
how the estimation can be improved.
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    \490\ See part VII.B.1.a, supra.

    The Commission also requests comment on all aspects of the economic 
analysis of the proposed guidance regarding the scope of the 
``arranged, negotiated, or executed'' test. To the extent possible, the 
Commission requests that commenters provide supporting data and 
analysis with respect to the benefits, costs, and effects on 
competition, efficiency, and capital formation of adopting the proposed 
guidance. In addition, the Commission asks commenters to consider the 
---------------------------------------------------------------------------
following questions:

    8. Are there costs and benefits associated with the proposed 
guidance that the Commission has not identified? If so, please 
identify them and if possible, offer ways of estimating these costs 
and benefits.
    9. Are there effects on efficiency, competition, and capital 
formation stemming from the proposed guidance that the Commission 
has not identified? If so, please identify them and explain how the 
identified effects result from the proposed amendment.
    10. Are there data sources or data sets that can help the 
Commission refine its estimates of the costs and benefits associated 
with the proposed guidance? If so, please identify them.
    11. Are there alternatives to the proposed guidance that the 
Commission has not considered? If so, please identify and describe 
them.

    The Commission also requests comment on all aspects of the economic 
analysis of the proposed amendment to Rule of Practice 194. To the 
extent possible, the Commission requests that commenters provide 
supporting data and analysis with respect to the benefits, costs, and 
effects on competition, efficiency, and capital formation of adopting 
the proposed amendment or any reasonable alternatives. In addition, the 
Commission asks commenters to consider the following questions:

    12. What additional qualitative or quantitative information 
should the Commission consider as part of the baseline for its 
economic analysis of the proposed Rule of Practice 194(c)(2)? To 
what extent do entities likely to register with the Commission as 
SBS Entities rely on non-U.S. personnel dealing with U.S. versus 
non-U.S. counterparties?
    13. Has the Commission accurately characterized the costs and 
benefits of proposed Rule of Practice 194(c)(2)? If not, why not? 
Should any of the costs or benefits be modified? What, if any, other 
costs or benefits should the Commission take into account? Would 
entities likely to register with the Commission as SBS Entities 
choose not to register or deregister if Rule of Practice 194(c)(2) 
is not adopted? If possible, please offer ways of estimating these 
costs and benefits. What additional considerations can the 
Commission use to estimate the costs and benefits of the proposed 
amendment?
    14. Has the Commission accurately characterized the effects on 
competition, efficiency, and capital formation arising from proposed 
Rule of Practice 194(c)(2)? If not, why not?
    15. Has the Commission accurately characterized the costs, 
benefits, and effects on competition, efficiency, and capital 
formation of the above alternatives to the proposed Rule of Practice 
194(c)(2)? If not, why not? Should any of the costs or benefits be 
modified? What, if any, other costs or benefits should the 
Commission take into account?
    16. Are there other reasonable alternatives to the proposed Rule 
of Practice 194(c)(2) that the Commission should consider? What are 
the costs, benefits, and effects on competition, efficiency, and 
capital formation of any other alternatives?

    The Commission also requests comment on all aspects of the economic 
analysis of the proposed guidance and amendments related to 
certification and opinion of counsel, conditional registration, and the 
employee questionnaire requirements. To the extent possible, the 
Commission requests that commenters provide supporting data and 
analysis with respect to the benefits, costs, and effects on 
competition, efficiency, and capital formation of adopting the proposed 
amendment or any reasonable alternatives. In addition, the Commission 
asks commenters to consider the following questions:

    17. What additional qualitative or quantitative information 
should the Commission consider as part of the baseline for its 
economic analysis of these amendments? Which jurisdictions and 
security-based swap market participants are affected by foreign 
privacy and secrecy laws, blocking statutes, and other legal 
barriers? To what extent do entities likely to register with the 
Commission as bank, stand-alone, or broker-dealer SBS Entities rely 
on nonresident personnel located or employed in jurisdictions with 
foreign privacy and secrecy laws, blocking statutes, and other legal 
barriers? To what extent do such personnel transact across reference 
security and security-based swap markets, and with institutional 
versus retail clientele?
    18. Has the Commission accurately characterized the costs and 
benefits of the proposed conditional registration in Rule 15Fb2-1 
and guidance regarding the certification and opinion of counsel 
requirements in Rule 15Fb2-4? Has the Commission accurately 
characterized the costs and benefits of the proposed modifications 
to the questionnaire recordkeeping requirement in Rule 18a-5(a)(10) 
and Rule 18a-5(b)(8)? If not, why not? Should any of the costs or 
benefits be modified? What, if any, other costs or benefits should 
the Commission take into account? Would entities likely to register 
with the Commission as SBS Entities choose

[[Page 24279]]

not to register or deregister without the proposed conditional 
registration in Rule 15Fb2-1 or guidance regarding Rule 15Fb2-4? If 
possible, please offer ways of estimating these costs and benefits. 
What additional considerations can the Commission use to estimate 
the costs and benefits of the proposed guidance?
    19. Has the Commission accurately characterized the effects on 
competition, efficiency, and capital formation arising from proposed 
guidance, amendments, and modifications regarding Rules 15Fb2-1 and 
15Fb2-4, and proposed Rule 18a-5? If not, in what way?
    20. Has the Commission accurately characterized the costs, 
benefits, and effects on competition, efficiency, and capital 
formation of the above alternatives to the proposed guidance and 
amendments regarding conditional registration, certification and 
opinion of counsel, and employee questionnaires? If not, why not? 
Should any of the costs or benefits be modified? What, if any, other 
costs or benefits should the Commission take into account?
    21. Has the Commission accurately characterized the costs, 
benefits, and effects on competition, efficiency, and capital 
formation of alternatives to the proposed guidance, amendments, and 
modifications regarding conditional registration, certification and 
opinion of counsel, and employee questionnaires? Are there other 
reasonable alternatives the Commission should consider? What are the 
costs, benefits, and effects on competition, efficiency, and capital 
formation of any other alternatives?

VIII. Paperwork Reduction Act

    Certain provisions of the proposed amendments and modifications to 
Exchange Act Rules 3a71-3 and 18a-5 contain ``collection of 
information'' \491\ requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA''), and the Commission is submitting the 
proposed collections of information to the Office of Management and 
Budget (``OMB'') for review in accordance with 44 U.S.C. 3507 and 5 CFR 
1320.11. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.
---------------------------------------------------------------------------

    \491\ 44 U.S.C. 3502(3).
---------------------------------------------------------------------------

    The title of the new collection of information associated with the 
proposed changes to Rule 3a71-3 is ``Rule 3a71-3(d)--Conditional 
Exception from De Minimis Counting Requirement in Connection with 
Certain Transactions Arranged, Negotiated or Executed in the United 
States.'' \492\ OMB has not yet assigned a control number to this new 
collection of information.
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    \492\ This new collection of information is distinct from an 
existing collection of information related to Exchange Act Rule 
3a71-3(c), which provides an exception from the application of 
certain business conduct requirements in connection with a security-
based swap dealer's ``foreign business.'' See generally Business 
Conduct Adopting Release, 81 FR at 30082.
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    The title and OMB control number for the collection of information 
the Commission is proposing to modify is Rule 18a-5--Records to be made 
by certain security-based swap dealers and major security-based swap 
participants, OMB Control Number 3235-0745. The Commission's earlier 
PRA assessments have been revised to reflect the modifications to 
proposed Rule 18a-5 from those that were proposed in the Recordkeeping 
and Reporting Proposing Release.

A. Proposed Amendment to Rule 3a71-3

1. Summary of the Collection of Information \493\
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    \493\ Because the proposed amendment to Rule 3a71-3 would 
require the use of a registered security-based swap dealer or a 
registered broker in connection with the transactions at issue, the 
proposed amendment also would implicate collections of information 
associated with security-based swap dealer or broker status (apart 
from the collections associated with the specific conditions of the 
exception). Separate collections of information address the 
registration of security-based swap dealers and brokers, as well as 
the requirements associated with those registered entities as a 
matter of course, including recordkeeping requirements applicable to 
such registered entities. The separate collections of information 
associated with requirements of general applicability for registered 
security-based swap dealers and brokers are not addressed as part of 
this rulemaking, and instead are addressed by the collections of 
information associated with those separate requirements.
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a. Disclosure of Limited Title VII Applicability
    Both alternatives to the proposed exception to Rule 3a71-3 would be 
conditioned in part on the registered entity engaged in arranging, 
negotiating or executing activity in the United States notifying the 
counterparties of the non-U.S. person relying on the exception, 
contemporaneously with and in the same manner as the conduct at issue, 
that the non-U.S. person is not registered with the Commission as a 
security-based swap dealer, and that certain Exchange Act provisions or 
rules addressing the regulation of security-based swaps would not be 
applicable in connection with the transaction. This disclosure would be 
required only so long as the identity of the counterparty is known to 
that registered entity at a reasonably sufficient time prior to the 
execution of the transaction to permit the disclosure.\494\
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    \494\ See Alternatives 1 and 2--proposed paragraph (d)(1)(iv) of 
Rule 3a71-3.
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b. Business Conduct Condition
    Alternative 1 would be conditioned in part on the registered 
security-based swap dealer that engages in arranging, negotiating or 
executing activity in the United States in connection with the 
transactions at issue complying with certain security-based swap dealer 
business conduct requirements--related to: Disclosure of material 
risks, characteristics, incentives and conflicts of interest; 
suitability of recommendations; and fair and balanced communications--
``as if'' the counterparty to the non-U.S. person relying on the 
exception also were a counterparty to that registered security-based 
swap dealer.\495\ Each of those underlying business conduct 
requirements itself is associated with a collection of 
information.\496\
---------------------------------------------------------------------------

    \495\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(1)-(3) 
of Rule 3a71-3.
    \496\ See Business Conduct Adopting Release, 81 FR at 30083-85 
(discussing collections of information regarding security-based swap 
dealer requirement for disclosure of information regarding material 
risks, characteristics, incentives and conflicts of interest, 
suitability of recommendations, and fair and balanced 
communications).
---------------------------------------------------------------------------

    Alternative 2 would be conditioned in part on the registered broker 
or a registered security-based swap dealer that engages in such 
activity in the United States in connection with the transaction at 
issue complying with those same business conduct requirements, ``as 
if'' the counterparty to the non-U.S. person relying on the exception 
also were a counterparty to that registered entity.\497\
---------------------------------------------------------------------------

    \497\ See Alternative 2--proposed paragraph (d)(1)(ii)(B)(1)-(3) 
of Rule 3a71-3.
---------------------------------------------------------------------------

c. Trade Acknowledgment and Verification Condition
    Alternative 1 would be conditioned in part on the registered 
security-based swap dealer that engages in arranging, negotiating or 
executing activity in the United States in connection with the 
transactions at issue complying with trade acknowledgment and 
verification requirements--which themselves are associated with 
collections of information \498\--``as if'' the counterparty to the 
non-U.S. person relying on the exception also were a counterparty to 
that registered security-based swap dealer.\499\
---------------------------------------------------------------------------

    \498\ See Business Conduct Adopting Release, 81 FR at 30083-85 
(discussing collections of information regarding security-based swap 
dealer requirement for disclosure of information regarding material 
risks, characteristics, incentives and conflicts of interest, 
disclosure of information regarding clearing rights, suitability of 
recommendations, and fair and balanced communications).
    \499\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(4) of 
Rule 3a71-3.

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[[Page 24280]]

    Alternative 2 would be conditioned in part on the registered broker 
or security-based swap dealer that engages in such activity in the 
United States in connection with the transactions at issue complying 
with those trade acknowledgment and verification requirements ``as if'' 
the counterparty to the non-U.S. person relying on the exception also 
were a counterparty to that registered entity.\500\
---------------------------------------------------------------------------

    \500\ See Alternative 2--proposed paragraph (d)(1)(ii)(B)(4) of 
Rule 3a71-3.
---------------------------------------------------------------------------

d. Portfolio Reconciliation Condition
    Alternative 1 would be conditioned in part on the registered 
security-based swap dealer that engages in arranging, negotiating or 
executing activity in the United States in connection with the 
transactions at issue complying with proposed portfolio reconciliation 
requirements, but only with respect to the initial portfolio 
reconciliation required by the rule, ``as if'' the counterparty to the 
non-U.S. person relying on the exception also is a counterparty to that 
registered security-based swap dealer.\501\ That underlying proposed 
portfolio reconciliation requirement itself is associated with a 
collection of information.\502\
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    \501\ See Alternative 1--proposed paragraph (d)(1)(ii)(B)(5) of 
Rule 3a71-3.
    \502\ See Risk Mitigation Proposing Release, 83 FR at 4640 
(discussing collection of information regarding proposed security-
based swap dealer portfolio reconciliation requirement).
---------------------------------------------------------------------------

    Alternative 2 for the exception would be conditioned in part on the 
registered broker or security-based swap dealer that engages in such 
activity in the United States in connection with the transactions at 
issue complying with the proposed portfolio reconciliation requirement 
with regard to the initial reconciliation ``as if'' that registered 
entity is a counterparty to the non-U.S. person's counterparty (and 
``as if'' that entity is registered as a security-based swap dealer if 
it is not so registered).\503\
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    \503\ See Alternative 2--proposed paragraph (d)(1)(ii)(B)(5) of 
Rule 3a71-3.
---------------------------------------------------------------------------

e. Recordkeeping Condition
    Both proposed alternatives would be conditioned in part on the 
registered entity engaged in arranging, negotiating or executing 
activity in the United States obtaining from the non-U.S. person 
relying on the exception, and maintaining, trading relationship 
documentation involving the counterparty to the transaction.\504\
---------------------------------------------------------------------------

    \504\ See Alternatives 1 and 2--proposed paragraph 
(d)(1)(iii)(B)(2) of Rule 3a71-3.
    The proposed exception also would be conditioned in part on the 
registered entity engaged in market facing activity in the United 
States creating and maintaining books and records relating to the 
transactions subject to this exception that are required, as 
applicable, by Rule 17a-3 and 17a-4, or Rule 18a-5 and 18a-6, 
including books and records relating to: Disclosure of risks, 
characteristics, incentives and conflicts; suitability; fair and 
balanced communications; trade acknowledgment and verification; and 
portfolio reconciliation. See Alternatives 1 and 2--proposed 
paragraph (d)(1)(iii)(B) of Rule 3a71-3 (requiring creation and 
maintenance of books and records relating to the requirements 
specified in proposed paragraph (d)(1)(ii)(B).
    Because that part of the condition subsumes the collection of 
information that the Commission would expect to be associated with 
the final rules adopting those security-based swap dealer books and 
records requirements, it does not constitute a separate collection 
of information attributable to this proposed exception. See note 
493, supra.
---------------------------------------------------------------------------

f. Consent to Service Condition
    Both proposed alternatives for the exception to Rule 3a71-3 would 
be conditioned in part on the registered entity engaged in arranging, 
negotiating or executing activity in the United States obtaining from 
the non-U.S. person relying on the exception written consent to service 
of process for any civil action brought by or proceeding before the 
Commission, providing that process may be served on the non-U.S. person 
by service on the registered entity in the manner set forth in the 
registered entity's current Form BD, SBSE, SBSE-A or SBSE-BD, as 
applicable.\505\
---------------------------------------------------------------------------

    \505\ See Alternatives 1 and 2--proposed paragraph 
(d)(1)(iii)(B)(3) of Rule 3a71-3.
---------------------------------------------------------------------------

g. ``Listed Jurisdiction'' Condition
    Both proposed alternatives for the exception to Rule 3a71-3 would 
be conditioned in part on the non-U.S. person relying on the exception 
being subject to the margin and capital requirements of a ``listed 
jurisdiction.'' \506\ The proposal specifies that applications for 
orders requesting listed jurisdiction status may be made by persons 
that may rely on the exception, or by foreign financial authorities, or 
made on the Commission's own initiative, and must be filed pursuant to 
the procedures set forth in Exchange Act Rule 0-13.\507\
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    \506\ See Alternatives 1 and 2--proposed paragraph (d)(1)(v) of 
Rule 3a71-3.
    \507\ See Alternatives 1 and 2--proposed paragraph (d)(2)(i) of 
Rule 3a71-3.
---------------------------------------------------------------------------

2. Use of Information
a. Disclosure of Limited Title VII Applicability
    The proposed disclosure condition is intended to help guard against 
counterparties reasonably presuming that the involvement of U.S. 
personnel in an arranging, negotiating or executing capacity as part of 
the transaction would be accompanied by the safeguards associated with 
Title VII security-based swap dealer regulation applying to the non-
U.S. person.
b. Business Conduct Condition
    The use of the information associated with the business conduct 
condition would be the same as the use of information associated with 
the currently extant security-based swap dealer business conduct 
requirements, given that the relevant condition simply would expand the 
existing requirements to apply to transactions where they currently do 
not apply. Accordingly, the condition requiring the registered entity 
to comply with requirements for the disclosure of risks, 
characteristics, incentives and conflicts, particularly would assist 
the counterparty in assessing the transaction by providing it with a 
better understanding of the expected performance of the security-based 
swap, and provide additional transparency and insight into 
pricing.\508\ The condition requiring the registered entity to comply 
with requirements regarding the suitability of recommendations would 
assist the registered entity in making appropriate 
recommendations.\509\ The condition requiring the registered entity to 
comply with fair and balanced communication requirements in part would 
better equip the counterparty to make more informed investment 
decisions.\510\
---------------------------------------------------------------------------

    \508\ See Business Conduct Adopting Release, 81 FR at 30088.
    \509\ See id.
    \510\ See id.
---------------------------------------------------------------------------

c. Trade Acknowledgment and Verification Condition
    The use of the information associated with the trade 
acknowledgement and verification condition would be the same as the use 
of information associated with the currently extant security-based swap 
dealer trade acknowledgment and verification requirements, given that 
the relevant condition simply would expand the existing requirements to 
apply to transactions where they currently do not apply. In general, 
the trade acknowledgment would serve as a written record by which the 
counterparties to the transaction may memorialize the terms of a 
transaction, and the verification requirements are intended to ensure 
that the written record of the transaction accurately reflects the 
terms of the transaction as understood by the respective 
counterparties.\511\
---------------------------------------------------------------------------

    \511\ See Trade Acknowledgement Adopting Release, 81 FR at 
39830.

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[[Page 24281]]

d. Portfolio Reconciliation Condition
    The use of the information associated with the portfolio 
reconciliation condition would be the same as the use of information 
associated with the proposed security-based swap dealer portfolio 
reconciliation requirement. In general, that proposed requirement is 
intended to help ensure the accuracy of the data reported to SDRs, and 
to help facilitate the ability of registered security-based swap data 
repositories to comply with requirements that they verify the 
information they receive.\512\
---------------------------------------------------------------------------

    \512\ See Risk Mitigation Proposing Release, 83 FR at 4641.
---------------------------------------------------------------------------

e. Recordkeeping Condition
    The proposed condition requiring the registered entity to obtain 
and maintain trading relationship documentation involving the non-U.S. 
person relying on the exception and its counterparty is intended to 
help the Commission obtain a full view of the dealing activities 
connected with transactions relying on the proposed exception, 
including such activities that occur in the non-U.S. person taking 
advantage of the exception. Absent such access, the Commission may be 
impeded in identifying fraud and abuse in connection with transactions 
that have been arranged, negotiated or executed in the United States, 
where such fraud or abuse may be apparent only in light of relevant 
information obtained from the non-U.S. person relying on the exception 
or its associated persons.
f. Consent to Service Condition
    The proposed use of the consent to service condition is to 
facilitate the Commission's ability to serve process on the non-U.S. 
person relying on the exception, to assist the Commission in 
efficiently taking action to address potential violations of the 
federal securities laws in connection with the transactions at issue.
g. ``Listed Jurisdiction'' Condition
    The proposed use of information provided by applicants in 
connection with ``listed jurisdiction'' applications is to assist the 
Commission in evaluating the effectiveness of the financial 
responsibility requirements of jurisdictions regulating non-U.S. 
persons taking advantage of the exception. This is intended to help 
avoid creating an incentive for persons engaged in a security-based 
swap dealing business in the United States to book their transactions 
into entities that solely are subject to the regulation of 
jurisdictions that do not effectively require security-based swap 
dealers or comparable entities to meet certain financial responsibility 
standards. That should help avoid providing an unwarranted competitive 
advantage to non-U.S. persons that conduct security-based swap dealing 
activity in the United States without being subject to strong financial 
responsibility standards. The condition also is consistent with the 
view that applying financial responsibility requirements to such 
transactions between two non-U.S. persons can help mitigate the 
potential for financial contagion to spread to U.S. market participants 
and to the U.S. financial system more generally.
3. Respondents
    As discussed above, the Commission preliminarily estimates that up 
to 24 entities that engage in security-based swap dealing activity may 
rely on the proposed conditional exception from having to count dealing 
transactions with non-U.S. counterparties against the de minimis 
thresholds.\513\ To satisfy the proposed exception, each of those up to 
24 entities would make use of an affiliated registered security-based 
swap dealer and/or registered broker that would be required to comply 
with--and incur collections of information in connection with--
conditions related to compliance with relevant Title VII security-based 
swap dealer requirements related to business conduct, trade 
acknowledgment and verification, and portfolio reconciliation. Each of 
those up to 24 registered entities also would have to provide 
disclosures to counterparties of the non-U.S. persons relying on the 
exception, to obtain and maintain trading relationship documentation 
involving the non-U.S. persons relying on the proposed exception and 
their counterparties, and to comply with the condition that the 
registered entity obtain from the non-U.S. person a consent to service 
of process.
---------------------------------------------------------------------------

    \513\ This estimate is based on data (see part VII.A.7, supra) 
indicating that: (1) Six U.S. entities are engaged in security-based 
swap dealing activity above the de minimis thresholds may have the 
incentive to book future security-based swaps with non-U.S. 
counterparties into U.S. affiliates to make use of the proposed 
exception in connection with those transactions. (2) One non-U.S. 
entity would fall below the $3 billion de minimis threshold if its 
transactions with non-U.S. counterparties were not counted. (3) The 
``arranged, negotiated, or executed'' counting standard would result 
in five additional non-U.S. entities incurring assessment costs in 
connection with the de minimis exception.
    The analysis has doubled those numbers--to up to twelve U.S. 
persons that may change its booking practices involving security-
based swaps to make use of the exception, plus up to twelve 
additional non-U.S. persons--to address potential growth of the 
security-based swap market and to account for uncertainty associated 
with the availability of data, leading to the final estimate of 24 
entities. See id.
---------------------------------------------------------------------------

    Applications for listed jurisdiction determinations may be 
submitted by the up to 24 non-U.S. persons that would rely on the 
proposed exception. In practice the Commission expects that the greater 
portion of such listed jurisdiction applications will be submitted by 
foreign financial authorities, given their expertise in connection with 
the relevant financial responsibility requirements and information 
access provisions, and in connection with their supervisory and 
enforcement oversight with regard to the financial responsibility 
requirements.\514\
---------------------------------------------------------------------------

    \514\ As discussed below, the Commission estimates that three 
non-U.S. persons will submit listed jurisdiction applications.
---------------------------------------------------------------------------

4. Total Annual Reporting and Recordkeeping Burdens (Summarized in 
Table 3)
a. Disclosure of Limited Title VII Applicability
    The Commission preliminarily estimates that the up to 12 U.S. 
entities that may book transactions into their non-U.S. affiliates to 
make use of the proposed conditional exception in the aggregate would 
annually engage in nearly 76,000 security-based swap dealing 
transactions with non-U.S. counterparties.\515\ Here--and in connection 
with the other two groups addressed below--the analysis doubles that 
amount to estimate the number of total disclosures, recognizing that 
there will be situations in which the registered entity engaged in 
arranging, negotiating or executing activity in the United States makes 
the required disclosures but a transaction does not result.\516\
---------------------------------------------------------------------------

    \515\ Available data indicates that the six U.S. entities that 
are engaged in security-based swap dealing activity above the de 
minimis thresholds in the aggregate annually engage in 37,827 
transactions with non-U.S. counterparties. To address potential 
growth in the market and data-related uncertainty, the analysis 
doubles that estimate to 75,654 transactions annually (and, as noted 
above, have doubled the estimated number of entities).
    \516\ This produces an estimate of 151,308 (75,654 x 2) annual 
disclosures pursuant to the proposed condition.
---------------------------------------------------------------------------

    The Commission also preliminary estimates that the two non-U.S. 
persons that may fall below the de minimis thresholds due to the 
proposed conditional exception in the aggregate would annually engage 
approximately 20,000 security-based swap dealing transactions with non-
U.S. counterparties,\517\ doubled here to

[[Page 24282]]

account for disclosures that are not followed by a transaction.\518\
---------------------------------------------------------------------------

    \517\ Available data indicates that the one non-U.S. entity that 
would fall below the de minimis thresholds due to the exception 
annually engages in 10,064 transactions with non-U.S. 
counterparties. To address potential growth in the market and data-
related uncertainty, the analysis doubles that estimate to 20,128 
transactions annually (and, as noted above, have doubled the 
estimated number of entities).
    \518\ This produces an estimate of 40,256 (20,128 x 2) annual 
disclosures pursuant to the proposed condition.
---------------------------------------------------------------------------

    The Commission further preliminarily estimates that the additional 
ten non-U.S. entities that may rely on the proposed conditional 
exception in the aggregate would annually engage in approximately 2,100 
security-based swap dealing transactions, with non-U.S. persons, that 
may be subject to the proposed exception,\519\ doubled here to account 
for disclosures that are not followed by a transaction.\520\
---------------------------------------------------------------------------

    \519\ Available data indicates that would result in five 
additional non-U.S. persons that would be expected to incur 
assessment costs due to the ``arranged, negotiated, or executed'' 
counting standard engage in a total of 1,056 annual security-based 
swap transactions with non-U.S. counterparties. To address potential 
growth in the market and data-related uncertainty, the analysis 
doubles that estimate to 2,112 transactions annually (and have 
doubled the estimated number of entities).
    \520\ This produces an estimate of 4,224 (2,112 x 2) annual 
disclosures pursuant to the proposed condition.
---------------------------------------------------------------------------

    In light of the limited contents of those contemporaneous 
disclosures, the Commission preliminarily believes that each such 
disclosure on average would be expected to take no more than five 
minutes.\521\ Accordingly, the Commission preliminarily estimates that 
the 12 U.S. entities that may book transactions into their non-U.S. 
affiliates to make use of the proposed conditional exception in the 
aggregate will annually spend a total of approximately 12,609 hours to 
provide the disclosures required by the conditions.\522\ The Commission 
further preliminarily estimates that the two non-U.S. entities that may 
fall below the de minimis thresholds due to the exception in the 
aggregate will annually spend a total of approximately 3,355 hours to 
provide the disclosures required by the conditions,\523\ while the 
other ten non-U.S. entities that may rely on the proposed conditional 
exception in the aggregate will annually spend a total of approximately 
352 hours to provide the disclosures required by the conditions.\524\
---------------------------------------------------------------------------

    \521\ Given that the disclosure must be provided 
contemporaneously with the market-facing activity by the registered 
entity engaged in market-facing activity in the United States, the 
disclosure could not reasonably be provided via inclusion in 
standard trading documentation and would require the creation of 
specific disclosure documentation.
    \522\ 151,308 aggregate annual disclosures x 5 minutes per 
transaction. This averages to approximately 1,050.75 hours for each 
of those 12 firms.
    \523\ 40,256 aggregate annual disclosures x 5 minutes per 
transaction. This averages to approximately 1,677 hours for each of 
those two firms.
    \524\ 4,224 aggregate annual disclosures x 5 minutes per 
transaction. This averages to 35.2 hours for each of those ten 
firms.
---------------------------------------------------------------------------

    The Commission also preliminarily believes that each of those 24 
total entities would initially spend 100 hours and incur approximate 
costs of $29,715 to develop policies and procedures to help ensure that 
appropriate disclosures are provided.\525\
---------------------------------------------------------------------------

    \525\ Applied to the estimated 24 entities at issue here, this 
would amount to 2,400 hours and $713,160.
    These estimates are based on prior estimates, made in connection 
with the adoption of the ``arranged, negotiated, or executed'' 
counting standard, that non-U.S. persons would incur 100 hours and 
$28,300 to establish policies and procedures to restrict 
communications with U.S. personnel in connection with the non-U.S. 
persons' dealing activity. See ANE Adopting Release, 81 FR at 8628. 
That $28,300 estimate has been adjusted to $29,715 in current 
dollars (28,300 x 1.05).
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b. Business Conduct Condition
    The Commission estimated the reporting and recordkeeping burdens 
associated with the relevant security-based swap dealer business 
conduct requirements under Title VII when it adopted those 
requirements. The Commission believes that those estimates are 
instructive for calculating the per-entity reporting and recordkeeping 
burdens associated with the proposed business conduct condition, given 
that the condition in effect would require compliance with those 
business conduct requirements.
     Disclosures of material risks, characteristics, and 
conflicts and incentives. When the Commission earlier considered the 
compliance burdens associated with those disclosure requirements (along 
with clearing rights and daily mark disclosure requirements not 
applicable under this proposal),\526\ the Commission estimated that 
implementation of those requirements: (i) Initially would require three 
persons from trading and structuring, three persons from legal, two 
persons from operations and four persons from compliance, for 100 hours 
each; \527\ (ii) half of those persons would be required to spend 20 
hours annually to re-evaluate and modify disclosures and systems 
requirements; \528\ and (iii) those entities would require eight full-
time persons for six months of systems development, programming and 
testing,\529\ along with two full-time persons annually for maintenance 
of this system.\530\
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    \526\ See Business Conduct Adopting Release, 81 FR at 30091-92. 
In connection with those prior estimates, the Commission noted that 
entities that are dually registered with the CFTC already provide 
their counterparties with similar disclosures.
    \527\ Applied to the 24 entities at issue here, this would 
amount to an aggregate initial burden of 28,800 hours (24 entities x 
12 persons x 100 hours).
    \528\ Applied to the 24 entities at issue here, this would 
amount to an aggregate annual burden of 2,880 hours (24 entities x 6 
persons x 20 hours).
    \529\ Applied to the 24 entities at issue here, this would 
amount to an aggregate initial burden of 192,000 hours (24 entities 
x 8 persons x 1,000 hours).
    \530\ Applied to the 24 entities at issue here, this would 
amount to an aggregate annual burden of 96,000 hours (24 entities x 
2 persons x 2,000 hours).
    In adopting those disclosure requirements, the Commission also 
incorporated an estimate of one hour per security-based swap for an 
entity to evaluate whether more particularized disclosures are 
necessary and to develop additional disclosures. See Business 
Conduct Adopting Release, 81 FR at 30092. The Commission does not 
believe that particular category of costs would be applicable in the 
context of the transactions at issue here.
    Under the proposed exception, the disclosure condition extends 
not only to incentives and conflicts of the registered entity, but 
also disclosures and conflicts of its non-U.S. affiliate. The 
Commission believes, however, that the existing burden estimates are 
sufficient to account for this aspect of the disclosure, given that 
the two entities' affiliation should facilitate the transfer of any 
relevant incentive and conflict information for the registered 
entity to convey.
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     Suitability of recommendations. When the Commission 
previously analyzed the burdens associated with the security-based swap 
dealer recommendation suitability requirement, it estimated that most 
security-based swap dealers would obtain representations from 
counterparties to comply with the institutional suitability provisions 
of the requirement.\531\ The Commission further particularly estimated: 
(i) That for security-based swap market participants that also are swap 
market participants, most of the requisite representations have been 
drafted for the swaps context, and that to the extent that any 
modifications are necessary to adapt those representations to the 
security-based swap context, each market participant would require two 
hours to assess the need for modifications and make any required 
modifications; \532\

[[Page 24283]]

and (ii) other market participants (apart from special entities not 
relevant here) would require five hours for each market participant to 
review and agree to the relevant representations.\533\
---------------------------------------------------------------------------

    \531\ See id. at 30092-93.
    \532\ Analysis of current data indicates that the six U.S. 
entities engaged in security-based swap dealing activity above the 
de minimis thresholds in the aggregate have 161 unique non-U.S. 
counterparties that are swap market participants, and 70 unique non-
U.S. counterparties that are not swap market participants. The one 
non-U.S. entity that may fall below the de minimis threshold due to 
the exception has 391 unique non-U.S. counterparties that are swap 
market participants, and 178 unique non-U.S. counterparties that are 
not swap market participants. The five additional non-U.S. persons 
that would be expected to incur assessment costs in connection with 
the ``arranged, negotiated, or executed'' counting standard in the 
aggregate have six unique non-U.S. counterparties that are swap 
market participants, and one unique non-U.S. counterparty that are 
not swap market participants. Adding together those estimates and 
then doubling them (in light of the uncertainty associated with the 
estimate and to account for potential growth of the security-based 
swap market) produces a total estimate of 1,116 unique non-U.S 
counterparties that are swap market participants, and 498 that are 
not. Only non-U.S. counterparties are relevant for purposes of this 
analysis because the proposed exception does not address security-
based swap transactions involving U.S. person counterparties.
    Consistent with these assumptions, the potential burden 
associated with such modifications in connection with the proposed 
condition would amount to 2,232 hours (1,116 non-U.S. security-based 
swap market participants that also are swap market participants x 
two hours).
    \533\ Consistent with the above assumptions, the potential 
burden associated with such modifications in connection with the 
proposed condition would amount to 2,490 hours (498 non-U.S. 
security-based swap market participants that are not also swap 
market participants x five hours).
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     Fair and balanced communications. The Commission's earlier 
analysis of the burdens associated with the fair and balanced 
communications requirement \534\ took the view that each registered 
entity would incur: (i) $6,000 in initial legal costs to draft or 
review statements of potential opportunities and corresponding risks in 
marketing materials; \535\ (ii) an additional initial six hours for 
internal review of other communications such as emails and Bloomberg 
messages; \536\ and (iii) $8,400 in initial legal costs associated with 
marketing materials for more bespoke transactions.\537\
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    \534\ See Business Conduct Adopting Release, 81 FR at 30093.
    \535\ In connection with the proposed exception, the potential 
burden associated with such drafting or review would amount to 
$151,200 (24 entities x $6,000 x 1.05 adjustment to current 
dollars).
    \536\ In connection with the proposed exception, the potential 
burden associated with such internal review would amount to 144 
hours (24 entities x 6 hours).
    \537\ In connection with the proposed exception, the potential 
burden associated with such drafting or review would amount to 
$211,680 (24 entities x $8,400 x 1.05 adjustment to current 
dollars).
     In adopting the fair and balanced communication requirement, 
the Commission also incorporated an estimate of ongoing compliance 
costs (associated with review of email communications sent to 
counterparties) over the term of the security-based swap. See 
Business Conduct Adopting Release, 81 FR at 30093. Those costs are 
not incorporated into this estimate because the registered entity 
that engaged in market-facing activity in the United States in 
connection with the transactions at issue here would not be expected 
to have ongoing communications with the counterparty to the 
security-based swap.
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c. Trade Acknowledgment and Verification Condition
    The Commission estimated the reporting and recordkeeping burdens 
associated with the trade acknowledgment and verification requirements 
under Title VII when it adopted those requirements.\538\ The Commission 
believes that those estimates are instructive for calculating the per-
entity reporting and recordkeeping burdens associated with the proposed 
trade acknowledgment and verification condition, given that the 
condition in effect would require compliance with that trade 
acknowledgment and verification requirement by additional persons and/
or in additional circumstances.
---------------------------------------------------------------------------

    \538\ See id. at 39830-31.
---------------------------------------------------------------------------

    When the Commission earlier considered the compliance burdens 
associated with the trade acknowledgement and verification 
requirements, the Commission estimated that each applicable entity 
would incur: (i) 355 hours initially to develop an internal order and 
trade management system; \539\ (ii) 436 hours annually for day-to-day 
technical support, as well as amortized annual burden associated with 
system or platform upgrades and updates; \540\ (iii) 80 hours initially 
for the preparation of written policies and procedures to obtain 
verification of transaction terms; \541\ and (iv) 40 hours annually to 
maintain those policies and procedures.\542\
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    \539\ In connection with the proposed exception, the potential 
burden associated with such system development would amount to 8,520 
hours (24 entities x 355 hours).
    \540\ In connection with the proposed exception, the potential 
annual burden associated with such support and updates would amount 
to 10,464 hours (24 entities x 436 hours).
    \541\ In connection with the proposed exception, the potential 
burden associated with such preparation would amount to 1,920 hours 
(24 entities x 80 hours).
    \542\ In connection with the proposed exception, the potential 
annual burden associated with such policies and procedures would 
amount to 960 hours (24 entities x 40 hours).
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d. Portfolio Reconciliation Condition
    The Commission estimated the recordkeeping burdens associated with 
the portfolio reconciliation requirements under Title VII when it 
proposed those requirements.\543\ The Commission believes that those 
estimates are instructive for calculating the per-entity recordkeeping 
burdens associated with the proposed portfolio reconciliation 
condition, given that the condition in effect would require compliance 
with that portfolio reconciliation requirement by additional persons 
and/or in additional circumstances.
---------------------------------------------------------------------------

    \543\ See Risk Mitigation Proposing Release, 84 FR at 4642-43.
---------------------------------------------------------------------------

    When the Commission considered the recordkeeping burden associated 
with the portfolio reconciliation requirement, it estimated that each 
respondent on average would incur an annual burden of 190 hours in 
connection with proposed Rule 15Fi-3(a), which addresses portfolio 
reconciliation obligations in connection with transactions where the 
counterparty to the registered entity is a security-based swap dealer 
and major security-based swap participant.\544\ The Commission further 
estimated that each respondent on average would incur an annual burden 
of 227.5 hours in connection with proposed Rule 15Fi-3(b), which 
addresses portfolio reconciliation obligations in connection with 
transactions where the counterparty to the registered entity is not a 
security-based swap dealer and major security-based swap 
participant,\545\ for a total of 417.5 hours.
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    \544\ See Risk Mitigation Proposing Release, 84 FR at 4642. That 
was based on estimates regarding the time to perform each 
reconciliation, and the number of counterparties associated with 
each required frequency of portfolio reconciliation (i.e., daily 
reconciliations for portfolios with more than 500 security-based 
swaps, weekly reconciliations for portfolios with more than 50 but 
fewer than 500 security-based swaps, and quarterly reconciliations 
for portfolios with no more than 50 security-based swaps).
    \545\ See id. at 4642-43. That was based on estimates regarding 
the time to perform each reconciliation, and the number of 
counterparties associated with each required frequency of portfolio 
reconciliation (i.e., quarterly reconciliations for portfolios with 
more than 100 security-based swaps, and annual reconciliations for 
portfolios with no more than 100 security-based swaps).
---------------------------------------------------------------------------

    While recognizing that the proposed condition requires only the 
initial reconciliation of any particular instrument, the Commission 
nonetheless believes that these estimates provide a useful upper bound 
for the per-entity burden associated with this condition.\546\
---------------------------------------------------------------------------

    \546\ In connection with the proposed exception, the estimated 
aggregate annual burden associated with this condition would be 
10,020 hours (24 entities x 417.5 hours).
    The Commission believes that the above estimate of 10,020 
appropriately reflects the burden associated with the portfolio 
reconciliation condition. At the same time, the Commission 
recognizes that, depending on the applicable facts and 
circumstances, the registered entity engaged in arranging, 
negotiating or executing conduct in the United States may need to 
obtain, from the non-U.S. affiliate relying on the transaction, 
information needed to perform the initial portfolio reconciliation. 
The Commission typically would not expect such transfers of 
information to constitute an independent collection of information, 
because the registered entity generally would be expected to possess 
that information to comply with regulatory reporting obligations 
pursuant to Regulation SBSR (leading any resulting burdens to be 
subsumed within the collection of information associated with 
Regulation SBSR).
    Nonetheless, in the event that the registered entity is not 
otherwise subject to regulatory reporting obligations pursuant to 
Regulation SBSR, such transfers of information from the non-U.S. 
affiliate to the registered entity may constitute an independent 
collection of information. In those circumstances, and consistent 
with the Paperwork Reduction Act analysis associated with Regulation 
SBSR, the Commission anticipates that the upper bound on the initial 
burden for each non-U.S. affiliate to construct an infrastructure to 
provide for the transfer of this information would amount to 1,394 
hours (see Exchange Act Release No. 74244 (Feb. 11, 2015), 80 FR 
14564, 14676 (Mar. 19, 2015)), or 33,456 hours in the aggregate (24 
non-U.S. entities x 1,394 hours). Also, based on prior estimates 
that it would take 0.005 hours to report each security-based swap 
transaction (see id.), and the estimate that this proposed exception 
in the aggregate would address 97,894 transactions annually (see 
notes 515, 517 and 519 supra), the Commission estimates that the 
upper bound on the aggregate annual burden associated with such 
transfers of information would amount to approximately 489 hours 
(97,894 transactions x 0.005 hours).
    Such burdens likely would be mitigated if, for example, the 
registered entity and its non-U.S. affiliate jointly make use of 
unified back-office systems, or if the counterparty relationship 
largely is managed by personnel of the registered entity, or if the 
non-U.S. entity independently is subject to Regulation SBSR or has 
developed similar types of systems to comply with foreign reporting 
requirements.

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[[Page 24284]]

e. Recordkeeping Condition
    To comply with the proposed condition that the affiliated 
registered entity obtain from the non-U.S. person, and maintain, copies 
of trading relationship documentation the registered entity and the 
non-U.S. person jointly would need to develop policies and procedures 
to provide for the identification of such records and for their 
transfer to the registered affiliate. For each use of the proposed 
exception, the Commission preliminarily estimates that such policies 
and procedures would impose require a one-time initial burden of 20 
hours.\547\
---------------------------------------------------------------------------

    \547\ Across the 24 potential uses of the proposed exception, 
this would amount to a total of 480 hours (24 entities x 20 hours).
---------------------------------------------------------------------------

    The Commission also preliminarily estimates that the non-U.S. 
person relying on this exception also would need to expend two hours 
per week to identify such records and to electronically convey the 
records to its registered affiliate.\548\ The Commission further 
preliminarily estimates that the registered affiliate would need to 
expend one hour per week in connection with the receipt and maintenance 
of those records.\549\
---------------------------------------------------------------------------

    \548\ Across the 24 potential uses of the proposed exception, 
this would amount to a total of 2,496 hours annually (24 entities x 
2 hours x 52 weeks).
    \549\ Across the 24 potential uses of the proposed exception, 
this would amount to a total of 1,248 hours annually (24 entities x 
1 hour x 52 weeks).
     The recordkeeping condition also specifies that, for the 
exception to be available, the registered entity must create and 
maintain books and records as required by applicable rules, 
including any books and records requirements relating to the 
provisions specified in paragraph (d)(1)(ii)(B) (i.e., relating to 
disclosure of risks, characteristics, incentives and conflicts; 
suitability; fair and balanced communications; trade acknowledgment 
and verification; and portfolio reconciliation). Because that part 
of the condition subsumes the collection of information that we 
would expect to be associated with the final rules adopting those 
security-based swap dealer books and records requirements, it does 
not constitute a separate collection of information. See note 493, 
supra.
---------------------------------------------------------------------------

f. Consent to Service Condition
    To comply with the proposed condition that the affiliated 
registered entity obtain from the non-U.S. person relying on the 
exception written consent to service of process for civil actions, one 
or the other of those parties would have to draft such a consent or use 
an industry-standard consent provision, and the registered entity must 
obtain that consent from the non-U.S. person. The Commission 
preliminarily estimates that the parties jointly must expend [two] 
hours in connection with this process.\550\
---------------------------------------------------------------------------

    \550\ Across the 24 expected uses of the proposed exception, 
this would amount to a total of 48 hours (24 entities x 2 hours).
---------------------------------------------------------------------------

g. ``Listed Jurisdiction'' Condition
    The Commission believes that burden estimates associated with 
applications for substituted compliance determinations are instructive 
with regard to the burdens that would be associated with applications 
by market participants in connection with ``listed jurisdiction'' 
status.\551\
---------------------------------------------------------------------------

    \551\ Notwithstanding the substantive differences between the 
standards associated with listed jurisdiction determinations and 
substituted compliance assessments, see part III.B.5, supra, the two 
sets of applications will be submitted pursuant to Rule 0-13 and may 
be expected to address certain analogous elements.
---------------------------------------------------------------------------

    When the Commission initially adopted Rules 0-13 and 3a71-6, 
providing for substituted compliance in connection with security-based 
swap dealer business conduct requirements, the Commission concluded 
that the ``great majority'' of substituted compliance applications 
would be submitted by foreign authorities, and that ``very few'' 
applications would be submitted by security-based swap dealers (or 
major security-based swap participants), and the Commission concluded 
that three such registered entities would submit substituted compliance 
applications.\552\ The Commission further estimated that the one-time 
paperwork burden associated with preparing and submitting all three 
substituted compliance requests in connection with those requirements 
would be approximately 240 hours, plus $240,000 for the services of 
outside professionals.\553\ The Commission subsequently relied on those 
estimates in connection with the paperwork burdens associated with 
amendments to Rule 3a71-6 related to trade acknowledgement and 
verification.\554\
---------------------------------------------------------------------------

    \552\ See Business Conduct Adopting Release, 81 FR at 30097.
    \553\ This was based on the estimate that each request would 
require approximately 80 hours of in-house counsel time, plus 
$80,000 for the services of outside professionals (based on 200 
hours of outside time x $400/hour). See id.
    \554\ See Trade Acknowledgement Adopting Release, 81 FR at 
39832.
---------------------------------------------------------------------------

    The Commission similarly believes that the majority of ``listed 
jurisdiction'' applications would be made by foreign authorities rather 
than by the up to 24 non-U.S. persons that potentially would rely on 
the exception. Consistent with the estimates in connection with the 
substituted compliance rule, moreover, the Commission estimates that 
three non-U.S. persons that seek to rely on the exception would file 
listed jurisdiction applications, and that in the aggregate those three 
persons would incur initial paperwork burdens, associated with 
preparing and submitting the requests, of approximately 240 hours, plus 
$252,000 for the services of outside professionals (incorporating a 
five percent addition to reflect current dollars).

               Table 3--Proposed Rule 3a71-3 Amendment--Summary of Paperwork Reduction Act Burdens
----------------------------------------------------------------------------------------------------------------
                                                  Initial burden                           Annual burden
           Burden type           -------------------------------------------------------------------------------
                                         Per-firm                Aggregate         Per-firm (hr)  Aggregate (hr)
----------------------------------------------------------------------------------------------------------------
Disclosure of limited Title VII
 applicability: *
    disclosure by 12 U.S.         ......................  ......................        1,050.75          12,609
     dealing entities (A).
    disclosure by 2 non-U.S.      ......................  ......................         1,677.3           3,355
     dealing entities (B).
    disclosure by other non-U.S.  ......................  ......................            35.2             352
     entities (C).
    related policies and          100 hr................  2,400 hr..............
     procedures (same).           $29,715...............  $713,160..............
Disclosure of risks,
 characteristics et al.:
    structuring, legal,           1,200 hr..............  28,800 hr.............
     operations, compliance.

[[Page 24285]]

 
    re-evaluation and             ......................  ......................             120           2,880
     modification.
    systems development,          8,000 hr..............  192,000 hr............
     programming, testing.
    system maintenance..........  ......................  ......................           4,000          96,000
Suitability:
    reps. by participants also    2 hr..................  2,232 hr..............
     in swap market.
    representations by other      5 hr..................  2,490 hr..............
     counterparties.
Fair and balanced
 communications:
    1statement drafting.........  $6,300................  $151,200..............
    additional internal review..  6 hr..................  144 hr................
    legal costs.................  $8,820................  $211,680..............
Trade acknowledgement and
 verification:
    internal order and trade      355 hr................  8,520 hr..............
     mgt. systems.
    daily tech. support/          ......................  ......................             436          10,464
     amortized upgrades.
    initial preparation of        80 hr.................  1,920 hr..............
     policies and procedures.
    maintenance of policies and   ......................  ......................              40             960
     procedures.
Portfolio reconciliation:
    initial reconciliation of     ......................  ......................           417.5          10,020
     transactions.
Copies of trading relationship
 documentation:
    joint development of          20 hr.................  480 hr................
     policies/procedures.
    non-US entity identification  ......................  ......................             104           2,496
     and conveyance.
    registered entity receipt     ......................  ......................           52 hr        1,248 hr
     and maintenance.
Consent to service of process:
    joint drafting/transfer to    2 hr..................  48 hr.................
     registered entity.
``Listed jurisdiction''
 applications:
    applications by non-          80 hr.................  240 hr................
     regulators.
    (same)......................  $84,000...............  $252,000
----------------------------------------------------------------------------------------------------------------
* (A) Twelve U.S. dealing entities may book future security-based swaps with non-U.S. counterparties into non-
  U.S. affiliates. (B) Two non-U.S. entities may fall below the de minimis threshold if ``arranged, negotiated,
  or executed'' transactions are not counted. (C) Ten additional non-U.S. entities may make use of the exception
  to avoid incurring assessment costs in connection with the ``arranged, negotiated, or executed'' de minimis
  test.

5. Collection of Information Is Mandatory
    The collections of information associated with the proposed 
amendments to Rule 3a71-3 are mandatory to the availability of the 
exception.
6. Confidentiality
    Any disclosures to be provided in connection with the arranging, 
negotiating or executing of a registered security-based swap dealer or 
of a registered broker (depending on the alternative adopted) in 
compliance with the requirements of the proposed exception would be 
provided to the non-U.S. counterparties of the non-U.S. person relying 
on this exception; therefore, the Commission would not typically 
receive confidential information as a result of this collection of 
information. To the extent that the Commission receives records related 
to such disclosures from a registered security-based swap dealer or 
registered broker through the Commission's examination and oversight 
program, or through an investigation, or some other means, such 
information would be kept confidential, subject to the provisions of 
applicable law.
    Any applications for listed jurisdiction status will be made 
public.
7. Retention Period of Recordkeeping Requirements
    By virtue of being registered as a security-based swap dealer and/
or as a broker (depending on the alternative), the entity-engaged in 
market facing conduct in the United States will be required to retain 
the records and information required under the proposed amendment to 
Rule 3a71-3 for the retention periods specified in Exchange Act Rules 
17a-4 and 18a-6, as applicable.\555\
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    \555\ The registered entity would have to create and/or maintain 
certain records in connection with the following proposed conditions 
(in conjunction with proposed Commission books and record rules and 
rule amendments related to Title VII): Disclosure of limited Title 
VII applicability; business conduct; trade acknowledgement and 
verification; portfolio reconciliation; obtaining and maintaining 
relationship documentation and questionnaires; consent to service of 
process.
     The proposed conditions do not require the non-U.S. person 
relying on the exception to make or retain any particular types of 
records (although that non-U.S. person will be required to convey 
existing trading relationship documentation to its registered 
affiliate).
---------------------------------------------------------------------------

B. Proposed Modifications to Proposed Rule 18a-5

1. Summary of Collections of Information To Be Modified
    The Commission is proposing to modify proposed Rule 18a-5--which is 
modeled on Exchange Act Rule 17a-3, as amended--with respect to the 
requirement that stand-alone and bank SBS Entities make and keep 
current certain records.\556\ The proposed modifications to proposed 
Rule 18a-5 would reduce the burden associated with Rule 18a-5, as 
originally proposed, by providing generally that a stand-alone or bank 
SBS Entity need not: (i) Make and keep current a questionnaire or 
application for employment for an associated person if the SBS Entity 
is excluded from the prohibition under Exchange Act Section 15F(b)(6) 
with respect to such associated person (e.g., the exclusion proposed in 
Rule of Practice 194(c)(2)), and (ii) include the information generally 
required to be included on the questionnaire or application for 
employment executed by an associated person if the associated person is 
not a U.S. person and the receipt of that information, or the creation 
or maintenance of records reflecting that information, would result in 
a violation of applicable law in the jurisdiction in which the 
associated person is employed or located.
---------------------------------------------------------------------------

    \556\ See proposed Rule 18a-5, Recordkeeping and Reporting 
Proposing Release.
---------------------------------------------------------------------------

2. Use of Information
    Proposed Rule 18a-5, as proposed to be modified, is designed, among 
other things, to promote the prudent operation of SBS Entities, and to 
assist the Commission, SROs, and state securities regulators in 
conducting

[[Page 24286]]

effective examinations.\557\ Thus, the collections of information under 
proposed Rule 18a-5 are expected to facilitate inspections and 
examinations of SBS Entities.
---------------------------------------------------------------------------

    \557\ As noted above, proposed Rule 18a-5 is patterned after 
Exchange Act Rule 17a-3, the recordkeeping rule for registered 
broker-dealers. See, e.g., Books and Records Requirements for 
Brokers and Dealers Under the Securities Exchange Act of 1934, 
Exchange Act Release No. 47910 (Oct. 26, 2001), 66 FR 55818 (Nov. 2, 
2001) (``The Commission has required that broker-dealers create and 
maintain certain records so that, among other things, the 
Commission, [SROs], and State Securities Regulators . . . may 
conduct effective examinations of broker-dealers'' (footnote 
omitted)).
---------------------------------------------------------------------------

3. Respondents
    The Commission estimated the number of respondents in the 
Recordkeeping and Reporting Proposing Release. The Commission received 
no comment on these estimates and continues to believe they are 
appropriate.
    Consistent with the Recordkeeping and Reporting Proposing Releases, 
based on available data regarding the single-name CDS market--which the 
Commission believes will comprise the majority of security-based 
swaps--the Commission estimates that the number of major security-based 
swap participants likely will be five or fewer and, in actuality, may 
be zero.\558\ Therefore, to capture the likely number of major 
security-based swap participants that may be subject to the collections 
of information for purposes of this PRA, the Commission estimates for 
purposes of this PRA that five entities will register with the 
Commission as major security-based swap participants. Also consistent 
with the Recordkeeping and Reporting Proposing Release, the Commission 
estimates that approximately four major security-based swap 
participants will be stand-alone entities.\559\
---------------------------------------------------------------------------

    \558\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25260; see also Registration Process for Security-Based Swap 
Dealers and Major Security-Based Swap Participants; Final Rule, 80 
FR at 48990; Further Definition of ``Swap Dealer,'' ``Security-Based 
Swap Dealer,'' ``Major Swap Participant,'' ``Major Security-Based 
Swap Participant'' and ``Eligible Contract Participant'' Exchange 
Act Release No. 66868 (Apr. 27, 2012), 77 FR 30596 at 30727 (May 23, 
2012).
    \559\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25260.
---------------------------------------------------------------------------

    Consistent with prior releases, the Commission estimates that 50 or 
fewer entities ultimately may be required to register with the 
Commission as security-based swap dealers, of which 16 are broker-
dealers that will likely seek to register as security-based swap-
dealers.^{560 561} The Commission continues to estimate that 
approximately 75% of the 34 non-broker-dealer security-based swap 
dealers (i.e., 25 firms) will register as bank security-based swap 
dealers, and the remaining 25% (i.e., 9 firms) will register as stand-
alone security-based swap dealers.\562\
---------------------------------------------------------------------------

    \560\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25260.
    \561\ See Registration Process for Security-Based Swap Dealers 
and Major Security-Based Swap Participants; Final Rule, 80 FR at 
79002.
    \562\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25261. The Commission does not anticipate that any firms will be 
dually registered as a broker-dealer and a bank.
---------------------------------------------------------------------------

    Further, the Commission continues to estimate that each security-
based swap dealer will employ approximately 420 associated persons that 
are natural persons and each major security-based swap participant will 
employ approximately 62 associated persons that are natural 
persons.\563\ The Commission has no data regarding how many associated 
persons of SBS Entities who are non-U.S. natural persons may: (a) Not 
effect or be involved in effecting security-based swap transactions 
with or for counterparties that are U.S. persons (other than a 
security-based swap transaction conducted through a foreign branch of a 
counterparty that is a U.S. person); (b) effect or be involved in 
effecting security-based swap transactions with or for counterparties 
that are U.S. persons, but who may be employed or located in 
jurisdictions where the receipt of information required by the 
questionnaire or employment application, or the creation or maintenance 
of records reflecting that information, would result in a violation of 
applicable law; or (c) effect or be involved in effecting security-
based swap transactions with or for counterparties that are U.S. 
persons, who are employed or located in jurisdictions where local law 
would not restrict the receipt, creation or maintenance of information 
required by the questionnaire or employment application. Given that, 
the Commission will estimate, for purposes of this Paperwork Reduction 
Act analysis, that non-U.S. associated persons are evenly split into 
each of these categories.
---------------------------------------------------------------------------

    \563\ Id.
    1 See Rule of Practice 194 Adopting Release, 84 FR at 4926. 
Commission staff also checked with the staff at the National Futures 
Association regarding an approximate number of associated persons 
employed by registered swap dealers. NFA staff provided anecdotal 
information indicating that the number of natural persons that are 
associated persons of swap dealers is substantially similar to 
Commission staff estimates. NFA staff further indicated that they 
believe about half of the total number of natural persons that are 
associated persons of swap dealers are located in the U.S. and the 
other half are located in foreign jurisdictions.
---------------------------------------------------------------------------

4. Total Initial and Annual Recordkeeping and Reporting Burden
    As indicated in the Recordkeeping and Reporting Proposing Release, 
proposed Rule 18a-5 will impose collection of information requirements 
that result in initial and annual burdens for SBS Entities. The 
proposed modifications to Rule 18a-5 will decrease these burdens for 
certain SBS Entities.
    In the Recordkeeping and Reporting Proposing Release, the 
Commission indicated that proposed Rule 18a-5 would require that stand-
alone SBS Entities make and keep current 13 types of records, including 
records on associated persons,\564\ and estimated that those 13 
paragraphs would impose on each firm an initial burden of 260 hours and 
an ongoing annual burden of 325 hours.\565\ In addition, the Commission 
indicated that proposed Rule 18a-5 would require that bank SBS Entities 
make and keep current 10 types of records, including records on 
associated persons,\566\ and estimated that these ten paragraphs will 
impose on each firm an initial burden of 200 hours per firm and an 
ongoing burden of 250 hours per firm.\567\ The Commission further 
stated that while proposed Rule 18a-5 would impose a burden to make and 
keep current these records, it would not require the firm to perform 
the underlying task.\568\
---------------------------------------------------------------------------

    \564\ See paragraph (a)(10) of proposed Rule 18a-5, 
Recordkeeping and Reporting Proposing Release, 79 FR at 25308.
    \565\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25264. Of these total initial and ongoing annual burdens for the 
13 types of records a firm would be required to make and keep 
current under paragraph (a)(10) of proposed Rule 18a-5, Commission 
staff believes that the burdens associated with making and keeping 
current questionnaires or applications for employment would be an 
initial burden of 20 hours (or 260/13) and an ongoing burden of 25 
hours (or 325/13).
    \566\ See paragraph (b)(8) of proposed Rule 18a-5; Recordkeeping 
and Reporting Proposing Release, 79 FR at 25309-10.
    \567\ See id. at 25264. Of these total initial and ongoing 
annual burdens for the 10 types of records a firm would be required 
to make and keep current under paragraph (b)(8) of proposed Rule 
18a-5, Commission staff believes that the burdens associated with 
making and keeping current questionnaires or applications for 
employment would be an initial burden of 20 hours (or 200/10) and an 
ongoing burden of 25 hours (or 250/10).
    \568\ In estimating the burden associated with Rule 18a-5, the 
Commission recognizes that entities that will register stand-alone 
SBS Entities likely make and keep current some records today as a 
matter of routine business practice, but the Commission does not 
have information about the records that such entities currently 
keep. Therefore, the Commission assumes that these entities 
currently keep no records when it estimates the PRA burden for these 
entities.
---------------------------------------------------------------------------

    The Commission received no comments regarding its hour and cost 
burden estimates for proposed Rule

[[Page 24287]]

18a-5 and continues to believe they are appropriate.
    The proposed modifications to paragraphs (a)(10) and (b)(8) of 
proposed Rule 18a-5 would (a) exempt stand-alone and bank SBS Entities 
from the requirement to make and keep current a questionnaire or 
application for employment for an associated person if the SBS Entity 
is excluded from the prohibition in section 15F(b)(6) of the Exchange 
Act with respect to the associated person (e.g., the exclusion proposed 
in Rule of Practice 194(c)(2)), and (b) allow SBS Entities to exclude 
certain information from their associated person records if receipt of 
that information or the creation or maintenance of records reflecting 
that information would result in a violation of applicable law in the 
jurisdiction where the associated person is employed or located.
Proposed Addition of Paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A)
    The Commission estimates that the proposed modification to add 
paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) to proposed Rule 18a-5 
would eliminate the paperwork burden for stand-alone and bank security-
based swap dealers and major security-based swap participants 
associated with making and keeping current questionnaires or 
applications for employment records, otherwise required by proposed 
Rule 18a-5, with respect to any associated person if the SBS Entity is 
excluded from the prohibition in Exchange Act Section 15F(b)(6), 
including the exclusion proposed in Rule of Practice 194(c)(2) with 
respect to a natural person who is (i) not a U.S. person and (ii) does 
not effect and is not involved in effecting security-based swap 
transactions with or for counterparties that are U.S. persons (other 
than a security-based swap transaction conducted through a foreign 
branch of a counterparty that is a U.S. person).
    As indicated above, the Commission estimates that there will be 
approximately 4 stand-alone major security-based swap participants, 9 
stand-alone security-based swap dealers and 25 bank security-based swap 
dealers. Further, as indicated above, each security-based swap dealer 
would have approximately 420 associated persons and half of those 
associated persons, or 210, would not be employed or located in the 
U.S. The Commission estimates that stand-alone and bank SBS dealers 
would not need to obtain the questionnaire or application for 
employment for one third of those associated persons, or 70, because 
proposed Rule of Practice 194(c)(2) would provide an exclusion from the 
prohibition in Section 15F(b)(6) of the Exchange Act with respect to 
associated persons who are not located in the U.S. and do not effect 
and are not involved in effecting security-based swap transactions with 
or for counterparties that are U.S. persons (other than a security-
based swap transaction conducted through a foreign branch of a 
counterparty that is a U.S. person).\569\ Similarly, as indicated 
above, each major security-based swap participant would have 
approximately 62 associated persons and half of those associated 
persons, or 31, would not be employed or located in the U.S. The 
Commission estimates that stand-alone and bank major security-based 
swap participants would not need to obtain the questionnaire or 
application for employment for one third of those associated persons, 
or 10, because proposed Rule of Practice 194(c)(2) would provide an 
exclusion from the prohibition in Section 15F(b)(6) of the Exchange Act 
with respect to those associated persons.\570\
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    \569\ 70 associated persons/420 associated persons per security-
based swap dealer = a reduction of approximately 16.7%. Security-
based swap dealers would be able to utilize this paragraph relative 
to other exclusions from the requirements of Exchange Act Section 
15F(b)(6) that the Commission may provide, however the analysis is 
focusing solely on the exclusion provided by proposed new paragraph 
(c)(2) to Rule of Practice 194 for purposes of the Paperwork 
Reduction Act estimate.
    \570\ 10 associated persons/62 associated persons per major 
security-based swap participant = a reduction of approximately 
16.1%. Major security-based swap participants would be able to 
utilize this paragraph relative to other exclusions from the 
requirements of Exchange Act Section 15F(b)(6) that the Commission 
may provide, however the analysis is focusing solely on the 
exclusion provided by proposed new paragraph (c)(2) to Rule of 
Practice 194 for purposes of this Paperwork Reduction Act estimate.
---------------------------------------------------------------------------

    Given this, the addition of paragraphs (a)(10)(iii)(A) and 
(b)(8)(iii)(A) to proposed Rule 18a-5 would reduce the initial burden 
associated with proposed Rule 18a-5 by 127 hours \571\ and it would 
reduce the ongoing burden associated with proposed Rule 18a-5 by 158 
hours.\572\
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    \571\ Initial burden hours associated with paragraphs (a)(10) 
and (b)(8) of proposed Rule 18a-5 for stand-alone and bank security-
based swap dealers and major security-based swap participants, as 
proposed--
    20 hours x [9 stand-alone security-based swap dealers + 25 bank 
security-based swap dealers] = 20 hours x 34 security-based swap 
dealers = 680 initial burden hours for security-based swap dealers.
    20 hours x 4 stand-alone major security-based swap participants 
= 80 initial burden hours for major security-based swap 
participants.
    Initial burden hour reduction:
    680 initial burden hours for security-based swap dealers x 16.7% 
(see supra note 569) = 114 hours. 80 initial burden hours for major 
security-based swap participants x 16.1% (see supra note 570) = 13 
hours. A 114 hour reduction in the initial burden for security-based 
swap dealers + a 13 hour reduction in the initial burden for major 
security-based swap participants = a 127 hour reduction in initial 
burden hours across all entities able to rely on paragraphs (a)(10) 
and (b)(8) of proposed Rule 18a-5.
    \572\ Ongoing burden hours associated with paragraph (a)(10) and 
(b)(8) of proposed Rule 18a-5 for stand-alone and bank security-
based swap dealers and major security-based swap participants, as 
proposed--
    25 hours x [9 stand-alone security-based swap dealers + 25 bank 
security-based swap dealers] = 20 hours x 34 security-based swap 
dealers = 850 ongoing burden hours for security-based swap dealers.
    25 hours x 4 stand-alone major security-based swap participants 
= 100 ongoing burden hours for major security-based swap 
participants.
    Ongoing burden hour reduction:
    850 ongoing burden hours for security-based swap dealers x 16.7% 
(see supra note 569) = 142 hours. 100 ongoing burden hours for major 
security-based swap participants x 16.1% (see supra note 570) = 16 
hours. A 142 hour reduction in the ongoing burden for security-based 
swap dealers + a 16 hour reduction in the ongoing burden for major 
security-based swap participants = a 158 hour reduction in ongoing 
burden hours across all entities able to rely on paragraphs (a)(10) 
and (b)(8) of proposed Rule 18a-5.
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Proposed Addition of Paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B)
    The Commission estimates that the proposed modification to add 
paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) to proposed Rule 18a-5 
would decrease the paperwork burden for stand-alone and bank SBS 
Entities by permitting the exclusion of certain information mandated by 
the questionnaire requirement with respect to associated natural 
persons who effect or are involved in effecting security-based swap 
transactions with U.S. counterparties where the receipt of that 
information, or the creation or maintenance of records reflecting such 
information, would result in a violation of applicable law in the 
jurisdiction where the associated person is employed or located.
    As indicated above, the Commission estimates that there will be 
approximately 4 stand-alone major security-based swap participants, 9 
stand-alone security-based swap dealers and 25 bank security-based swap 
dealers. Further, as indicated above, each security-based swap dealer 
would have approximately 420 associated persons and half of those 
associated persons, or 210, would not be employed or located in the 
U.S. The Commission estimates that these new paragraphs would permit 
stand-alone and bank security-based swap dealers to exclude certain 
information mandated by the questionnaire requirement for approximately 
one third of those

[[Page 24288]]

associated persons, or 70.\573\ Similarly, as indicated above, each 
major security-based swap participant would have approximately 62 
associated persons and half of those associated persons, or 31, would 
not be employed or located in the U.S. The Commission estimates that 
these new paragraphs would permit stand-alone and bank major security-
based swap participants to exclude certain information mandated by the 
questionnaire requirement for approximately one third of those 
associated persons, or 10.\574\
---------------------------------------------------------------------------

    \573\ See note 569, supra.
    \574\ See note 570, supra.
---------------------------------------------------------------------------

    The Commission estimates that this will reduce the burdens 
associated with obtaining the information specified in the 
questionnaire requirement by 50% for the affected associated persons. 
Given this, the addition of paragraphs (a)(10)(iii)(B) and 
(b)(8)(iii)(B) to proposed Rule 18a-5 would reduce the initial burden 
associated with proposed Rule 18a-5 by 63 hours \575\ and would reduce 
the ongoing burden associated with proposed Rule 18a-5 by 79 
hours.\576\
---------------------------------------------------------------------------

    \575\ Initial burden hours associated with paragraphs (a)(10) 
and (b)(8) of proposed Rule 18a-5 for stand-alone and bank security-
based swap dealers and major security-based swap participants, as 
proposed--
    20 hours x [9 stand-alone security-based swap dealers + 25 bank 
security-based swap dealers] = 20 hours x 34 security-based swap 
dealers = 680 initial burden hours for security-based swap dealers.
    20 hours x 4 stand-alone major security-based swap participants 
= 80 initial burden hours for major security-based swap 
participants.
    Initial burden hour reduction:
    [680 initial burden hours for security-based swap dealers x 
16.7% (see supra note 569 x 50%] = 57 hours. [80 initial burden 
hours for major security-based swap participants x 16.1% (see supra 
note 570) x 50%] = 6 hours. A 57 hour reduction in the initial 
burden for security-based swap dealers + a 6 hour reduction in the 
initial burden for major security-based swap participants = a 63 
hour reduction in initial burden hours across all entities able to 
rely on paragraphs (a)(10) and (b)(8) of proposed Rule 18a-5.
    \576\ Ongoing burden hours associated with paragraph (a)(10) and 
(b)(8) of proposed Rule 18a-5 for stand-alone and bank security-
based swap dealers and major security-based swap participants, as 
proposed--
    25 hours x [9 stand-alone security-based swap dealers + 25 bank 
security-based swap dealers] = 20 hours x 34 security-based swap 
dealers = 850 ongoing burden hours for security-based swap dealers.
    25 hours x 4 stand-alone major security-based swap participants 
= 100 ongoing burden hours for major security-based swap 
participants.
    Ongoing burden hour reduction:
    [850 ongoing burden hours for security-based swap dealers x 
16.7% (see supra note 569) x 50%] = 71 hours. [100 ongoing burden 
hours for major security-based swap participants x 16.1% (see supra 
note 570) x 50%] = 8 hours. A 71 hour reduction in the ongoing 
burden for security-based swap dealers + a 8 hour reduction in the 
ongoing burden for major security-based swap participants = a 79 
hour reduction in ongoing burden hours across all entities able to 
rely on paragraphs (a)(10) and (b)(8) of proposed Rule 18a-5.
---------------------------------------------------------------------------

    Thus, in total, the addition of both paragraphs (a)(10)(iii)(A) and 
(b)(8)(iii)(A) and paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) would 
reduce the initial burden associated with the questionnaire requirement 
in proposed Rule 18a-5 by 190 hours,\577\ and the ongoing burden 
associated with the questionnaire requirement in proposed Rule 18a-5 by 
237 hours.\578\
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    \577\ A 127 hour reduction in initial burden hours associated 
with the addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) 
and a 63 hour reduction in initial burden hours associated with the 
addition of paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) = a 190 
hour reduction in initial burden hours.
    \578\ A 158 hour reduction in ongoing burden hours associated 
with the addition of paragraphs (a)(10)(iii)(A) and (b)(8)(iii)(A) 
and a 79 hour reduction in ongoing burden hours associated with the 
addition of paragraphs (a)(10)(iii)(B) and (b)(8)(iii)(B) = a 237 
hour reduction in ongoing burden hours.
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5. Collection of Information Is Mandatory
    The collections of information pursuant to the proposed 
modifications to the proposed new rule would be mandatory, as 
applicable, for SBS Entities.
6. Confidentiality
    Information that an SBS Entity would be required to make and keep 
current under proposed Rule 18a-5 would be maintained by the firm. To 
the extent that the Commission collects such records during an 
inspection or examination of a registered SBS Entity, or through some 
other means, such records would generally be kept confidential, subject 
to the provisions of applicable law.\579\
---------------------------------------------------------------------------

    \579\ See, e.g., 5 U.S.C. 552 et seq.; 15 U.S.C. 78x (governing 
the public availability of information obtained by the Commission).
---------------------------------------------------------------------------

7. Retention Period for Recordkeeping Requirements
    Proposed Rule 18a-6 would establish the required retention periods 
for SBS Entities to maintain records collected in accorded with 
proposed Rule 18a-5.\580\ Under paragraph (d)(1) of proposed Rule 18a-
6, an SBS Entity would be required to maintain and preserve in an 
easily accessible place the records required under paragraphs (a)(10) 
and (b)(8) of proposed Rule 18a-5 until at least three years after the 
associated person's employment and any other connection with the SBS 
Entity has terminated.
---------------------------------------------------------------------------

    \580\ See proposed Rule 18a-6, Recordkeeping and Reporting 
Proposing Release.
---------------------------------------------------------------------------

C. Request for Comment

    Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits 
comment to:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the Commission's functions, 
including whether the information shall have practical utility;
     Evaluate the accuracy of the Commission's estimate of the 
burden of the proposed collection of information;
     Determine whether there are ways to enhance the quality, 
utility, and clarity of the information to be collected; and
     Evaluate whether there are ways to minimize the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology.
    In addition, the Commission requests comment, including empirical 
data in support of comments, in response to the following questions:
     Are the Commission's estimates regarding the numbers of 
respondents relative to the proposed modifications to proposed Rule 
18a-5 accurate? If so, please provide empirical support for the 
Commission's estimate. If not, please provide a suggested estimate and 
empirical support for it.
     Are the Commission's estimates regarding the amount of 
time it would take to make and keep current the questionnaire or 
application for employment or other related records accurate? If so, 
please provide empirical support for the Commission's estimate. If not, 
please provide a suggested estimate and empirical support for it.
     Do stand-alone SBS Entities already have established 
record making and record preservation systems? If so, please explain 
those systems so they can be taken into account in the Commission's 
burden estimates.
    Persons submitting comments on the collection of information 
requirements should direct them to the Office of Management and Budget, 
Attention: Desk Officer for the Securities and Exchange Commission, 
Office of Information and Regulatory Affairs, Washington, DC 20503, and 
should also send a copy of their comments to [ ], Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090, 
with reference to File Number [ ]. Requests for materials submitted to 
OMB by the Commission with regard to this collection of information 
should be in writing, with reference to File Number [ ] and be 
submitted to the Securities and Exchange Commission, Office of FOIA/PA 
Services, 100 F Street NE, Washington, DC 20549-2736. As OMB is 
required to make a decision concerning the collection of information

[[Page 24289]]

between 30 and 60 days after publication, a comment to OMB is best 
assured of having its full effect if OMB receives it within 30 days of 
publication.

IX. Consideration of Impact on the Economy

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA'') \581\ the Commission requests comment on the 
potential effect of this proposal on the United States economy on an 
annual basis. The Commission also requests comment on any potential 
increases in costs or prices for consumers or individual industries, 
and any potential effect on competition, investment, or innovation. 
Commenters are requested to provide empirical data and other factual 
support for their views to the extent possible.
---------------------------------------------------------------------------

    \581\ Public Law 104-121, Title II, 110 Stat. 857 (1996) 
(codified in various sections of 5 U.S.C., 15 U.S.C. and as a note 
to 5 U.S.C. 601).
---------------------------------------------------------------------------

X. Regulatory Flexibility Act Certification

    Section 3(a) of the Regulatory Flexibility Act of 1980 (``RFA'') 
\582\ requires the Commission to undertake an initial regulatory 
flexibility analysis of the impact of the proposed rule amendments on 
small entities unless the Commission certifies that the rule, if 
adopted, would not have a significant impact on a substantial number of 
``small entities.'' \583\
---------------------------------------------------------------------------

    \582\ 5 U.S.C. 603(a).
    \583\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

    For purposes of Commission rulemaking in connection with the 
RFA,\584\ a small entity includes: (1) When used with reference to an 
``issuer'' or a ``person,'' other than an investment company, an 
``issuer'' or ``person'' that, on the last day of its most recent 
fiscal year, had total assets of $5 million or less; \585\ or (2) a 
broker-dealer with total capital (net worth plus subordinated 
liabilities) of less than $500,000 on the date in the prior fiscal year 
as of which its audited financial statements were prepared pursuant to 
Rule 17a-5(d) under the Exchange Act,\586\ or, if not required to file 
such statements, a broker-dealer with total capital (net worth plus 
subordinated liabilities) of less than $500,000 on the last day of the 
preceding fiscal year (or in the time that it has been in business, if 
shorter); and is not affiliated with any person (other than a natural 
person) that is not a small business or small organization.\587\ Under 
the standards adopted by the Small Business Administration, small 
entities in the finance and insurance industry include the following: 
(i) For entities engaged in credit intermediation and related 
activities, entities with $175 million or less in assets; \588\ (ii) 
for entities engaged in non-depository credit intermediation and 
certain other activities, entities with $7 million or less in annual 
receipts;-\589\ (iii) for entities engaged in financial investments and 
related activities, entities with $7 million or less in annual 
receipts; \590\ (iv) for insurance carriers and entities engaged in 
related activities, entities with $7 million or less in annual 
receipts; \591\ and (v) for funds, trusts, and other financial 
vehicles, entities with $7 million or less in annual receipts.\592\
---------------------------------------------------------------------------

    \584\ Although Section 601(b) of the RFA defines the term 
``small entity,'' the statute permits agencies to formulate their 
own definitions. The Commission has adopted definitions for the term 
``small entity'' for the purposes of Commission rulemaking in 
accordance with the RFA. Those definitions, as relevant to this 
proposed rulemaking, are set forth in Rule 0-10 under the Exchange 
Act, 17 CFR 240.0-10. See Exchange Act Release No. 18451 (Jan. 28, 
1982), 47 FR 5215 (Feb. 4, 1982) (File No. AS-305).
    \585\ See 17 CFR 240.0-10(a).
    \586\ See 17 CFR 240.17a-5(d).
    \587\ See 17 CFR 240.0-10(c).
    \588\ See 13 CFR 121.201 (Subsector 522).
    \589\ See id. at Subsector 522.
    \590\ See id. at Subsector 523.
    \591\ See id. at Subsector 524.
    \592\ See id. at Subsector 525.
---------------------------------------------------------------------------

    For purposes of the proposed exception to Exchange Act rule 3a71-3, 
the Commission continues to believe that the types of entities that 
would engage in more than a de minimis amount of dealing activity 
involving security-based swaps would not be ``small entities'' for 
purposes of the RFA.\593\ Moreover, based on feedback from market 
participants and information about the security-based swap markets, the 
Commission expects that all of the firms that are likely to make use of 
the proposed exception to Rule 3a71-3--are part of large financial 
institutions that exceed the thresholds defining ``small entities'' as 
set forth above.\594\
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    \593\ See Cross-Border Adopting Release, 79 FR at 47368.
    \594\ See part VII.A.7, supra (discussing persons potentially 
likely to use the proposed exception to Rule 3a71-3); see also U.S. 
Activity Proposing Release, 80 FR at 27508 (``we believe that firms 
that are likely to engage in security-based swap dealing activity at 
levels that may lead them to perform de minimis calculations under 
the ``security-based swap dealer'' definition are large financial 
institutions that exceed the thresholds defining ``small 
entities'').
---------------------------------------------------------------------------

    As discussed, the proposed exception to Exchange Act Rule 3a71-3 
would be subject to conditions requiring arranging, negotiating or 
executing activity to be conducted by affiliated registered security-
based swap dealers (under alternatives 1 or 2) or by affiliated 
registered brokers or security-based swap dealers (under alternative 2) 
that are affiliated with the non-U.S. persons relying on the exception. 
It is possible that some non-U.S. persons may set up new security-based 
swap dealers or new brokers to make use of the exception, while 
recognizing that other non-U.S. persons that seek to make use of the 
proposed exception instead may make use of affiliated security-based 
swap dealers that have an additional business of engaging in dealing 
activity above the de minimis thresholds with U.S. counterparties 
(under either alternative), or would make use of existing affiliated 
registered broker-dealers (under alternative 2).\595\ By definition, 
any such affiliated existing or new broker-dealer would not be a 
``small entity.'' \596\ Moreover, even in the unlikely event that some 
non-U.S. persons were to satisfy the exception's conditions via the use 
of affiliated registered security-based swap dealers that fall within 
the definition of ``small entity'' for purposes of the RFA,\597\ the 
Commission preliminarily believes that there would not be a substantial 
number of such entities.\598\
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    \595\ See part VII.A.7, supra (discussing likely broker-dealer 
or security-based swap dealer affiliates of persons expected to rely 
on exemption).
    \596\ The ``small entity'' definition applied to broker-dealers 
excludes broker-dealers that are affiliated with a person that is 
not a ``small entity.'' See Exchange Act Rule 0-10(c)(2), (i)(1) 
(basing affiliation on an 25 percent ownership standard that is 
narrower than the majority ownership standard used in connection 
with this proposed conditional exception). Because the non-U.S. 
persons relying on this exception would not be ``small entities,'' 
any such affiliated broker also would not be a ``small entity.''
    \597\ As noted, if the person engaged in market-facing activity 
in the United States is a registered security-based swap dealer (as 
required by alternative 1 and permitted by alternative 2) that has 
an additional business of engaging in dealing activity above the de 
minimis thresholds with U.S. counterparties, the Commission 
preliminarily believes that the person would not be a ``small 
entity.''
    \598\ Similarly, the Commission preliminarily believes that 
there would not be a significant number of ``small entities'' that 
may file ``listed jurisdiction'' applications pursuant to the 
proposed amendments to Exchange Act Rule 0-13. This conclusion 
reflects the same reasons, as well as the expectation that the 
majority of such applications would be filed by foreign authorities.
---------------------------------------------------------------------------

    Based on feedback from industry participants about the security-
based swap markets, the Commission continues to believe that entities 
that will qualify as SBS Entities exceed the thresholds defining 
``small entities.'' Thus, the Commission believes that any SBS Entities 
that may seek to rely on the proposed amendment to Rule 15Fb2-1

[[Page 24290]]

would not be ``small entities'' for purposes of the RFA.\599\
---------------------------------------------------------------------------

    \599\ See Registration Adopting Release, 80 FR at 49013.
---------------------------------------------------------------------------

    The Commission also continues to believe that any SBS Entities--
i.e., registered security-based swap dealers and registered major 
security-based swap participants--with associated persons that may be 
the subject of the proposed amendments to Rule of Practice 194 would 
not be ``small entities'' for purposes of the RFA.\600\
---------------------------------------------------------------------------

    \600\ We previously have concluded, based on feedback from 
market participants and the Commission's information regarding the 
security-based swap market, that the types of entities that may have 
security-based swap positions above the level required to register 
as SBS Entities would not be ``small entities'' for purposes of the 
RFA. See Cross-Border Adopting Release, 79 FR at 47368; see also 
``Applications by Security-based Swap Dealers or Major Security-
Based Participants for Statutorily Disqualified Associated Persons 
to Effect or Be Involved in Effecting Security-Based Swaps,'' 80 FR 
51684 (Aug 25, 2015), at 51718, and Rule of Practice 194 Adopting 
Release, 84 FR at 4944.
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    The Commission further continues to believe that it is unlikely 
that the requirements applicable to SBS Entities that would be 
established under the proposed modifications to proposed Rule 18a-5 
would have a significant economic impact on any small entity because no 
SBS Entity will be a small entity.\601\
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    \601\ See Recordkeeping and Reporting Proposing Release, 79 FR 
at 25296.
---------------------------------------------------------------------------

    Accordingly, the Commission preliminarily believes that it is 
unlikely that the proposed amendments regarding the security-based swap 
dealer cross-border de minimis counting requirement and regarding 
associated persons of SBS Entities would have a significant economic 
impact on a substantial number of small entities.\602\
---------------------------------------------------------------------------

    \602\ See also parts VI (Economic Analysis) and VII (Paperwork 
Reduction Act) (discussing, among other things, the economic impact, 
including the estimated compliance costs and burdens, of the 
amendments).
---------------------------------------------------------------------------

    For the foregoing reasons, the Commission certifies that the 
proposed amendments to Exchange Act Rules 3a71-3, 15Fb2-1, 0-13, and 
Rule of Practice 194 and the proposed modifications to proposed Rule 
18a-5 would not have a significant economic impact on a substantial 
number of small entities for purposes of the RFA. The Commission 
encourages written comments regarding this certification, and requests 
that commenters describe the nature of any impact on small entities and 
provide empirical data to illustrate the extent of the impact.

XI. Statutory Basis and Text of Proposed Rules

    Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and 
particularly Sections 3(a)(71), 3(b), 15F (as added by Section 764(a) 
of the Dodd-Frank Act), 17(a), 23(a), and 30(c) thereof, and Section 
761(b) of the Dodd-Frank Act, the Commission is proposing to amend Rule 
of Practice 194 and Rules 0-13, 3a71-3, 15Fb2-1, and proposing to 
modify proposed Rule 18a-5 under the Exchange Act.

List of Subjects

17 CFR Part 201

    Administrative practice and procedure, Brokers, Claims, 
Confidential business information, Equal access to justice, Lawyers, 
Penalties, Securities.

17 CFR Part 240

    Brokers, Confidential business information, Fraud, Reporting and 
recordkeeping requirements, Securities.

Text of Proposed Rules

    For the reasons stated in the preamble, the SEC is proposing to 
amend Title 17, Chapter II of the Code of the Federal Regulations as 
follows:

PART 201--RULES OF PRACTICE

0
1. The general authority citation for Subpart D is revised to read as 
follows:

    Authority:  15 U.S.C. 77f, 77g, 77h, 77h-1, 77j, 77s, 77u, 
77sss, 77ttt, 78(c)(b), 78d-1, 78d-2, 78l, 78m, 78n, 78o(d), 78o-3, 
78o-10(b)(6), 78s, 78u-2, 78u-3, 78v, 78w, 80a-8, 80a-9, 80a-37, 
80a-38, 80a-39, 80a-40, 80a-41, 80a-44, 80b-3, 80b-9, 80b-11, 80b-
12, 7202, 7215, and 7217.
* * * * *
0
 2. Amend Sec.  201.194 by re-designating paragraph (c) as paragraph 
(c)(1), adding a new heading to paragraph (c) and paragraph (c)(2) to 
read as follows:


Sec.  201.194   Applications by Security-Based Swap Dealers or Major 
Security-Based Swap Participants for Statutorily Disqualified 
Associated Persons To Effect or Be Involved In Effecting Security-Based 
Swaps.

* * * * *
    (c) Exclusions. (1) * * *.
    (2) Exclusion for Certain Associated Natural Persons. A security-
based swap dealer or major security-based swap participant shall be 
excluded from the prohibition in Section 15F(b)(6) of the Exchange Act 
(15 U.S.C. 78o-10(b)(6)) with respect to an associated person who is a 
natural person who (i) is not a U.S. person (as defined in 17 CFR 
240.3a71-3(a)(4)(i)(A)) and (ii) does not effect and is not involved in 
effecting security-based swap transactions with or for counterparties 
that are U.S. persons (as defined in 17 CFR 240.3a71-3(a)(4)), other 
than a security-based swap transaction conducted through a foreign 
branch (as that term is defined in 17 CFR 240.3a71-3(a)(3)) of a 
counterparty that is a U.S. person; provided, however, that this 
exclusion shall not be available if the associated person of that 
security-based swap dealer or major security-based swap participant is 
currently subject to any order described in subparagraphs (A) and (B) 
of Section 3(a)(39) of the Exchange Act, with the limitation that an 
order by a foreign financial regulatory authority described in 
subparagraphs (B)(i) and (B)(iii) of Section 3(a)(39) (15 U.S.C. 
78c(a)(39)(B)(i) and (B)(iii)) shall only apply to orders by a foreign 
financial regulatory authority in the jurisdiction where the associated 
person is employed or located.
* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
3. The general authority citation for part 240 continues to read as 
follows:

     Authority:  15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 
80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, 7201 et seq.; and 
8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350; and 
Pub. L. 111-203, 939A, 124 Stat. 1887 (2010); and secs. 503 and 602, 
Pub. L. 112-106, 126 Stat. 326 (2012), unless otherwise noted.
* * * * *
0
4. Amend Sec.  240.0-13 by revising the heading and paragraphs (a), (b) 
and (e) to read as follows:


Sec.  240.0-13   Commission procedures for filing applications to 
request a substituted compliance or listed jurisdiction order under the 
Exchange Act.

    (a) The application shall be in writing in the form of a letter, 
must include any supporting documents necessary to make the application 
complete, and otherwise must comply with Sec.  240.0-3. All 
applications must be submitted to the Office of the Secretary of the 
Commission, by a party that potentially would comply with requirements 
under the Exchange Act pursuant to a substituted compliance or listed 
jurisdiction order, or by the relevant foreign financial regulatory 
authority or authorities. If an application is incomplete, the 
Commission may request that the application be withdrawn unless the 
applicant can justify, based on all the facts and circumstances, why 
supporting materials have not been submitted and

[[Page 24291]]

undertakes to submit the omitted materials promptly.
    (b) An applicant may submit a request electronically. The 
electronic mailbox to use for these applications is described on the 
Commission's website at www.sec.gov in the ``Exchange Act Substituted 
Compliance and Listed Jurisdiction Applications'' section. In the event 
electronic mailboxes are revised in the future, applicants can find the 
appropriate mailbox by accessing the ``Electronic Mailboxes at the 
Commission'' section.
* * * * *
    (e) Every application (electronic or paper) must contain the name, 
address, telephone number, and email address of each applicant and the 
name, address, telephone number, and email address of a person to whom 
any questions regarding the application should be directed. The 
Commission will not consider hypothetical or anonymous requests for a 
substituted compliance or listed jurisdiction order. Each applicant 
shall provide the Commission with any supporting documentation it 
believes necessary for the Commission to make such determination, 
including information regarding applicable requirements established by 
the foreign financial regulatory authority or authorities, as well as 
the methods used by the foreign financial regulatory authority or 
authorities to monitor and enforce compliance with such rules. 
Applicants should also cite to and discuss applicable precedent.
* * * * *
0
5. Amend Sec.  240.3a71-3 by adding paragraphs (a)(10), (a)(11), and 
(a)(12), amending paragraph (b)(1)(iii)(C), and adding paragraph (d) to 
read as follows:


Sec.  240.3a71-3  Cross-border security-based swap dealing activity.

    (a) * * *
    (10) An entity is a majority-owned affiliate of another entity if 
the entity directly or indirectly owns a majority interest in the 
other, or if a third party directly or indirectly owns a majority 
interest in both entities, where ``majority interest'' is the right to 
vote or direct the vote of a majority of a class of voting securities 
of an entity, the power to sell or direct the sale of a majority of a 
class of voting securities of an entity, or the right to receive upon 
dissolution, or the contribution of, a majority of the capital of a 
partnership.
    (11) Foreign associated person means a natural person domiciled 
outside the United States who--with respect to a non-U.S. person 
relying on the exception set forth in paragraph (d) of this section--is 
a partner, officer, director, or branch manager of such non-U.S. person 
(or any person occupying a similar status or performing similar 
functions), any person directly or indirectly controlling, controlled 
by, or under common control with such non-U.S. person, or any employee 
of such non-U.S. person.
    (12) Listed jurisdiction means any jurisdiction that the Commission 
by order has designated as a listed jurisdiction for purposes of the 
exception specified in paragraph (d) of this section.
    (b) * * *
    (1) * * *
    (iii) * * *
    (C) Except as provided in paragraph (d) of this section, or unless 
such person is a person described in paragraph (a)(4)(iii) of this 
section, security-based swap transactions connected with such person's 
security-based swap dealing activity that are arranged, negotiated, or 
executed by personnel of such non-U.S. person located in a U.S. branch 
or office, or by personnel of an agent of such non-U.S. person located 
in a U.S. branch or office; and
* * * * *

Alternative 1

    (d) Exception from counting certain transactions. The counting 
requirement described by paragraph (b)(1)(iii)(C) of this section will 
not apply to the security-based swap dealing transactions of a non-U.S. 
person if the conditions of paragraph (d)(1) of this section have been 
satisfied.
    (1) Conditions. (i) Entity conducting U.S. activity. All activity 
that otherwise would cause a security-based swap transaction to be 
described by paragraph (b)(1)(iii)(C) of this section--namely, all 
arranging, negotiating or executing activity that is conducted by 
personnel of the entity (or its agent) located in a branch or office in 
the United States--is conducted by such U.S. personnel in their 
capacity as persons associated with an entity that:
    (A) Is registered with the Commission as a security-based swap 
dealer; and
    (B) Is a majority-owned affiliate of the non-U.S. person relying on 
this exception.
    (ii) Compliance with specified security-based swap dealer 
requirements. (A) Compliance required. In connection with such 
transactions, the registered entity described in paragraph (d)(1)(i) of 
this section complies with the requirements described in paragraph 
(d)(1)(ii)(B) of this section as if the counterparties to the non-U.S. 
person relying on this exception also were counterparties to the 
registered entity.
    (B) Applicable requirements. The compliance obligation described in 
paragraph (d)(1)(ii)(A) of this section applies to the following 
provisions of the Act and the rules and regulations thereunder:
    (1) Section 15F(h)(3)(B)(i), (ii) and rule 15Fh-3(b) thereunder, 
including in connection with material incentives and conflicts of 
interest associated with the non-U.S. person relying on the exception;
    (2) Rule 15Fh-3(f);
    (3) Section 15F(h)(3)(C) of the Act and rule 15Fh-3(g) thereunder;
    (4) Rules 15Fi-1 and 15Fi-2; and
    (5) Rule 15Fi-3, provided, however, that the registered entity 
described in paragraph (d)(1)(i) of this section will not be required 
to comply with rule 15Fi-3 in connection with the transaction following 
the initial portfolio reconciliation of the security-based swap 
resulting from the transaction.
    (C) Other compliance requirements. The compliance obligation 
described in paragraph (d)(1)(ii)(A) of this section does not apply to 
the following provisions of the Act and the rules and regulations 
thereunder:
    (1) Section 15F(h)(3)(A) of the Act and rule 15Fh-3(a)(1) 
thereunder;
    (2) Section 15F(h)(3)(B)(iii) and rule 15Fh-3(c) thereunder; and
    (3) Rule 15Fh-3(d);
    (4) Rule 15Fh-3(e);
    (5) Rule 15Fi-4; and
    (6) Rule 15Fi-5.
    (iii) Commission access to books, records and testimony. (A) The 
non-U.S. person relying on this exception promptly provides 
representatives of the Commission (upon request of the Commission or 
its representatives or pursuant to a supervisory or enforcement 
memorandum of understanding or other arrangement or agreement reached 
between any foreign securities authority, including any foreign 
government, as specified in section 3(a)(50) of the Act, and the 
Commission or the U.S. Government) with any information or documents 
within the non-U.S. person's possession, custody, or control, promptly 
makes its foreign associated persons available for testimony, and 
provides any assistance in taking the evidence of other persons, 
wherever located, that the Commission or its representatives requests 
and that relates to transactions subject to this exception, provided, 
however, that if, after exercising its best efforts, the non-U.S. 
person is prohibited by applicable foreign law or regulations from 
providing such information, documents, testimony, or assistance, the 
non-U.S.

[[Page 24292]]

person may continue to rely on this exception until the Commission 
issues an order modifying or withdrawing an associated ``listed 
jurisdiction'' determination pursuant to paragraph (d)(2)(iii) of this 
section.
    (B) The registered entity described in paragraph (d)(1)(i) of this 
section:
    (1) Creates and maintains books and records relating to the 
transactions subject to this exception that are required, as 
applicable, by rules 17a-3 and 17a-4, or by rules 18a-5 and 18a-6, 
including any books and records requirements relating to the provisions 
specified in paragraph (d)(1)(ii)(B) of this section;
    (2) Obtains from the non-U.S. person relying on the exception, and 
maintains, documentation encompassing all terms governing the trading 
relationship between the non-U.S. person and its counterparty relating 
to the transactions subject to this exception, including, without 
limitation, terms addressing payment obligations, netting of payments, 
events of default or other termination events, calculation and netting 
of obligations upon termination, transfer of rights and obligations, 
allocation of any applicable regulatory reporting obligations, 
governing law, valuation, and dispute resolution; and
    (3) Obtains from the non-U.S. person relying on this exception 
written consent to service of process for any civil action brought by 
or proceeding before the Commission, providing that process may be 
served on the non-U.S. person by service on the registered entity in 
the manner set forth in the registered entity's current Form SBSE, 
SBSE-A or SBSE-BD, as applicable.
    (iv) Disclosures. In connection with the transaction, the 
registered entity described in paragraph (d)(1)(i) of this section 
notifies the counterparties of the non-U.S. person relying on this 
exception that the non-U.S. person is not registered with the 
Commission as a security-based swap dealer, and that certain Exchange 
Act provisions or rules addressing the regulation of security-based 
swaps would not be applicable in connection with the transaction, 
including provisions affording clearing rights to counterparties. Such 
disclosure shall be provided contemporaneously with, and in the same 
manner as, the arranging, negotiating, or executing activity at issue. 
This disclosure will not be required if the identity of that 
counterparty is not known to that registered entity at a reasonably 
sufficient time prior to the execution of the transaction to permit 
such disclosure.
    (v) Subject to regulation of a listed jurisdiction. The non-U.S. 
person relying on this exception is subject to the margin and capital 
requirements of a listed jurisdiction when engaging in transactions 
subject to this exception.
    (2) Order for listed jurisdiction designation. The Commission by 
order, may conditionally or unconditionally determine that a foreign 
jurisdiction is a listed jurisdiction for purposes of this section. The 
Commission may make listed jurisdiction determinations in response to 
applications, or upon the Commission's own initiative.
    (i) Applications. Applications for an order requesting listed 
jurisdiction status may be made by a party or group of parties that 
potentially would seek to rely on the exception provided by paragraph 
(d) of this section, or by any foreign financial regulatory authority 
or authorities supervising such a party or its security-based swap 
activities. Applications must be filed pursuant to the procedures set 
forth in Sec.  240.0-13.
    (ii) Criteria considered. In considering a foreign jurisdiction's 
potential status as a listed jurisdiction, the Commission may consider 
factors relevant for purposes of assessing whether such an order would 
be in the public interest, including:
    (A) Applicable margin and capital requirements of the foreign 
financial regulatory system; and
    (B) The effectiveness of the supervisory compliance program 
administered by, and the enforcement authority exercised by, the 
foreign financial regulatory authority in connection with such 
requirements, including the application of those requirements in 
connection with an entity's cross-border business.
    (iii) Withdrawal or modification of listed jurisdiction status. The 
Commission may, on its own initiative, by order after notice and 
opportunity for comment, modify or withdraw a jurisdiction's status as 
a listed jurisdiction, if the Commission determines that continued 
listed jurisdiction status no longer would be in the public interest, 
based on:
    (A) The criteria set forth in paragraph (d)(2)(ii) of this section;
    (B) Any laws or regulations that have had the effect of preventing 
the Commission or its representatives, on request, to promptly access 
information or documents regarding the activities of persons relying on 
the exception provided by this paragraph (d), to obtain the testimony 
of foreign associated persons, and to obtain the assistance of persons 
relying on this exception in taking the evidence of other persons, 
wherever located, as described in paragraph (d)(1)(iii)(A) of this 
section; and
    (C) Any other factor the Commission determines to be relevant to 
whether continued status as a listed jurisdiction would be in the 
public interest.

Alternative 2

    (d) Exception from counting certain transactions. The counting 
requirement described by paragraph (b)(1)(iii)(C) of this section will 
not apply to the security-based swap dealing transactions of a non-U.S. 
person if the conditions of paragraph (d)(1) of this section have been 
satisfied.
    (1) Conditions. (i) Entity conducting U.S. activity. All activity 
that otherwise would cause a security-based swap transaction to be 
described by paragraph (b)(1)(iii)(C) of this section--namely, all 
arranging, negotiating or executing activity that is conducted by 
personnel of the entity (or its agent) located in a branch or office in 
the United States--is conducted by such U.S. personnel in their 
capacity as persons associated with an entity that:
    (A) Is registered with the Commission as a broker or as a security-
based swap dealer; and
    (B) Is a majority-owned affiliate of the non-U.S. person relying on 
this exception.
    (ii) Compliance with specified security-based swap dealer 
requirements. (A) Compliance required. In connection with such 
transactions, the registered entity described in paragraph (d)(1)(i) of 
this section complies with the requirements described in paragraph 
(d)(1)(ii)(B) of this section: (a) As if the counterparties to the non-
U.S. person relying on this exception also were counterparties to that 
entity; and (b) as if that entity were registered with the Commission 
as a security-based swap dealer, if it is not so registered.
    (B) Applicable requirements. The compliance obligation described in 
paragraph (d)(1)(ii)(A) of this section applies to the following 
provisions of the Act and the rules and regulations thereunder:
    (1) Section 15F(h)(3)(B)(i), (ii) and rule 15Fh-3(b) thereunder, 
including in connection with material incentives and conflicts of 
interest associated with the non-U.S. person relying on the exception;
    (2) Rule 15Fh-3(f);
    (3) Section 15F(h)(3)(C) of the Act and rule 15Fh-3(g) thereunder;
    (4) Rules 15Fi-1 and 15Fi-2; and
    (5) Rule 15Fi-3, provided, however, that the registered entity 
described in paragraph (d)(1)(i) will not be required to comply with 
rule 15Fi-3 in connection with the transaction following the initial 
portfolio

[[Page 24293]]

reconciliation of the security-based swap resulting from the 
transaction.
    (C) Other compliance requirements. The compliance obligation 
described in paragraph (d)(1)(ii)(A) of this section does not apply to 
the following provisions of the Act and the rules and regulations 
thereunder:
    (1) Section 15F(h)(3)(A) of the Act and rule 15Fh-3(a)(1) 
thereunder;
    (2) Section 15F(h)(3)(B)(iii) and rule 15Fh-3(c) thereunder;
    (3) Rule 15Fh-3(d);
    (4) Rule 15Fh-3(e);
    (5) Rule 15Fi-4; and
    (6) Rule 15Fi-5.
    (iii) Commission access to books, records and testimony. (A) The 
non-U.S. person relying on this exception promptly provides 
representatives of the Commission (upon request of the Commission or 
its representatives or pursuant to a supervisory or enforcement 
memorandum of understanding or other arrangement or agreement reached 
between any foreign securities authority, including any foreign 
government, as specified in section 3(a)(50) of the Act, and the 
Commission or the U.S. Government) with any information or documents 
within the non-U.S. person's possession, custody, or control, promptly 
makes its foreign associated persons available for testimony, and 
provides any assistance in taking the evidence of other persons, 
wherever located, that the Commission or its representatives requests 
and that relates to transactions subject to this exception, provided, 
however, that if, after exercising its best efforts, the non-U.S. 
person is prohibited by applicable foreign law or regulations from 
providing such information, documents, testimony, or assistance, the 
non-U.S. person may continue to rely on this exception until the 
Commission issues an order modifying or withdrawing an associated 
``listed jurisdiction'' determination pursuant to paragraph (d)(2)(iii) 
of this section.
    (B) The registered entity described in paragraph (d)(1)(i) of this 
section:
    (1) Creates and maintains books and records relating to the 
transactions subject to this exception that are required, as 
applicable, by rules 17a-3 and 17a-4, or by rules 18a-5 and 18a-6, 
including any books and records requirements relating to the provisions 
specified in paragraph (d)(1)(ii)(B) of this section;
    (2) Obtains from the non-U.S. person relying on the exception, and 
maintains, documentation encompassing all terms governing the trading 
relationship between the non-U.S. person and its counterparty relating 
to the transactions subject to this exception, including, without 
limitation, terms addressing payment obligations, netting of payments, 
events of default or other termination events, calculation and netting 
of obligations upon termination, transfer of rights and obligations, 
allocation of any applicable regulatory reporting obligations, 
governing law, valuation, and dispute resolution; and
    (3) Obtains from the non-U.S. person relying on this exception 
written consent to service of process for any civil action brought by 
or proceeding before the Commission, providing that process may be 
served on the non-U.S. person by service on the registered entity in 
the manner set forth in the registered entity's current Form BD, SBSE, 
SBSE-A or SBSE-BD, as applicable.
    (iv) Disclosures. In connection with the transaction, the 
registered entity described in paragraph (d)(1)(i) of this section 
notifies the counterparties of the non-U.S. person relying on this 
exception that the non-U.S. person is not registered with the 
Commission as a security-based swap dealer, and that certain Exchange 
Act provisions or rules addressing the regulation of security-based 
swaps would not be applicable in connection with the transaction, 
including provisions affording clearing rights to counterparties. Such 
disclosure shall be provided contemporaneously with, and in the same 
manner as, the arranging, negotiating, or executing activity at issue. 
This disclosure will not be required if the identity of that 
counterparty is not known to that registered entity at a reasonably 
sufficient time prior to the execution of the transaction to permit 
such disclosure.
    (v) Subject to regulation of a listed jurisdiction. The non-U.S. 
person relying on this exception is subject to the margin and capital 
requirements of a listed jurisdiction when engaging in the transactions 
subject to this exception.
    (2) Order for listed jurisdiction designation. The Commission by 
order, may conditionally or unconditionally determine that a foreign 
jurisdiction is a listed jurisdiction for purposes of this section. The 
Commission may make listed jurisdiction determinations in response to 
applications, or upon the Commission's own initiative.
    (i) Applications. Applications for an order requesting listed 
jurisdiction status may be made by a party or group of parties that 
potentially would seek to rely on the exception provided by paragraph 
(d) of this section, or by any foreign financial regulatory authority 
or authorities supervising such a party or its security-based swap 
activities. Applications must be filed pursuant to the procedures set 
forth in Sec.  240.0-13.
    (ii) Criteria considered. In considering a foreign jurisdiction's 
potential status as a listed jurisdiction, the Commission may consider 
factors relevant for purposes of assessing whether such an order would 
be in the public interest, including:
    (A) Applicable margin and capital requirements of the foreign 
financial regulatory system; and
    (B) The effectiveness of the supervisory compliance program 
administered by, and the enforcement authority exercised by, the 
foreign financial regulatory authority in connection with such 
requirements, including the application of those requirements in 
connection with an entity's cross-border business.
    (iii) Withdrawal or modification of listed jurisdiction status. The 
Commission may, on its own initiative, by order after notice and 
opportunity for comment, modify or withdraw a jurisdiction's status as 
a listed jurisdiction, if the Commission determines that continued 
listed jurisdiction status no longer would be in the public interest, 
based on:
    (A) The criteria set forth in paragraph (d)(2)(ii) of this section;
    (B) Any laws or regulations that have had the effect of preventing 
the Commission or its representatives, on request, to promptly access 
information or documents regarding the activities of persons relying on 
the exception provided by this paragraph (d), to obtain the testimony 
of their foreign associated persons, and to obtain the assistance of 
persons relying on this exception in taking the evidence of other 
persons, wherever located, as described in paragraph (d)(1)(iii)(A) of 
this section; and
    (C) Any other factor the Commission determines to be relevant to 
whether continued status as a listed jurisdiction would be in the 
public interest.
    (4) Exception for person that engages in arranging, negotiating or 
executing activity as agent. The registered entity described in 
paragraph (d)(1)(i) of this section need not count, against the de 
minimis thresholds described in Sec.  240.3a71-2(a)(1), the 
transactions described by paragraph (d) of this section.
* * * * *
0
6. Amend Section 240.15Fb2-1 by revising paragraphs (d) and (e) to read 
as follows:
    The additions read as follows.

[[Page 24294]]

Sec.  240.15Fb2-1   Registration of security-based swap dealers and 
major security-based swap participants.

* * * * *
    (d) Conditional registration. (1) An applicant that has submitted a 
complete Form SBSE-C (Sec.  249.1600c of this chapter) and a complete 
Form SBSE (Sec.  249.1600 of this chapter) or Form SBSE-A (Sec.  
249.1600a of this chapter) or Form SBSE-BD (Sec.  249.1600b of this 
chapter), as applicable, in accordance with paragraph (b) within the 
time periods set forth in Sec.  240.3a67-8 (if the person is a major 
security-based swap participant) or Sec.  240.3a71-2(b) (if the person 
is a security-based swap dealer), and has not withdrawn its 
registration shall be conditionally registered.
    (2) Notwithstanding paragraph (d)(1) of this section, an applicant 
that is a nonresident security-based swap dealer or nonresident major 
security-based swap participant (each as defined in Rule 15Fb2-4(a)) 
that is unable to provide the certification and opinion of counsel 
required by Rule 15Fb2-4(c)(1) shall be conditionally registered, for 
up to 24 months after the compliance date for Rule 15Fb2-1, if the 
nonresident applicant submits a Form SBSE-C (Sec.  249.1600c of this 
chapter) and a Form SBSE (Sec.  249.1600 of this chapter), SBSE-A 
(Sec.  249.1600a of this chapter) or SBSE-BD (Sec.  249.1600b of this 
chapter), as applicable, in accordance with paragraph (b) within the 
time periods set forth in Rule 3a67-8 (if the person is a major 
security-based swap participant) or Rule 3a71-2(b) (if the person is a 
security-based swap dealer), that is complete in all respects but for 
the failure to provide the certification and the opinion of counsel 
required by Rule 15Fb2-4(c)(1), and has not withdrawn from 
registration.
    (e) Commission decision. (1) The Commission may deny or grant 
ongoing registration to a security-based swap dealer or major security-
based swap participant based on a security-based swap dealer's or major 
security-based swap participant's application, filed pursuant to 
paragraph (a) of this section. The Commission will grant ongoing 
registration if it finds that the requirements of Section 15F(b) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o-10(b)) are satisfied. 
The Commission may institute proceedings to determine whether ongoing 
registration should be denied if it does not or cannot make such 
finding or if the applicant is subject to a statutory disqualification 
(as described in Sections 3(a)(39)(A) through (F) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78c(a)(39)(A)-(F)), or the Commission 
is aware of inaccurate statements in the application. Such proceedings 
shall include notice of the grounds for denial under consideration and 
opportunity for hearing. At the conclusion of such proceedings, the 
Commission shall grant or deny such registration.
    (2) If an applicant that is a nonresident security-based swap 
dealer or nonresident major security-based swap participant (each as 
defined in Rule 15Fb2-4(a)) has become conditionally registered in 
reliance on paragraph (d)(2) of this section and provides the 
certification and opinion of counsel required by Rule 15Fb2-4(c)(1) 
within 24 months of the compliance date for Rule 15Fb2-1, the applicant 
will remain conditionally registered until the Commission acts to grant 
or deny ongoing registration in accordance with (e)(1) of this section. 
If such applicant fails to provide the certification and opinion of 
counsel required by Rule 15Fb2-4(c)(1) within 24 months of the 
compliance date for Rule 15Fb2-1, the Commission may institute 
proceedings to determine whether ongoing registration should be denied, 
in accordance with paragraph (e)(1) of this section.
0
7. Section 240.18a-5, as proposed to be added at 79 FR 25193, May 2, 
2014, is further amended by adding paragraphs (a)(10)(iii) and 
(b)(8)(iii) to read as follows:


Sec.  240.18a-5   Records to be made by certain security-based swap 
dealers and major security-based swap participants.

* * * * *
    (a) * * *
    (10) * * *
    (iii) Notwithstanding paragraph (a)(10)(i) of this section:
    (A) A security-based swap dealer or major security-based swap 
participant is not required to make and keep current a questionnaire or 
application for employment executed by an associated person if the 
security-based swap dealer or major security-based swap participant is 
excluded from the prohibition in Section 15F(b)(6) of the Exchange Act 
(15 U.S.C. 78o-10(b)(6)) with respect to such associated person; and
    (B) a questionnaire or application for employment executed by an 
associated person who is not a U.S. person (as that term is defined in 
Sec.  240.3a71-3(a)(4)(i)(A)) need not include the information 
described in paragraphs (a)(10)(i)(A) through (H) of this section if 
the receipt of that information, or the creation or maintenance of 
records reflecting that information, would result in a violation of 
applicable law in the jurisdiction in which the associated person is 
employed or located; provided, however, the security-based swap dealer 
or major security-based swap participant must comply with Section 
15F(b)(6) of the Exchange Act (15 U.S.C. 78o-10(b)(6)).
* * * * *
    (b) * * *
    (8) * * *
    (iii) Notwithstanding paragraph (b)(8)(i) of this section;
    (A) a security-based swap dealer or major security-based swap 
participant is not required to make and keep current a questionnaire or 
application for employment executed by an associated person if the 
security-based swap dealer or major security-based swap participant is 
excluded from the prohibition in Section 15F(b)(6) of the Exchange Act 
(15 U.S.C. 78o-10(b)(6)) with respect to such associated person; and
    (B) a questionnaire or application for employment executed by an 
associated person who is not a U.S. person (as that term is defined in 
Sec.  240.3a71-3(a)(4)(i)(A)) need not include the information 
described in paragraphs (b)(8)(i)(A) through (H) of this section if the 
receipt of that information, or the creation or maintenance of records 
reflecting that information, would result in a violation of applicable 
law in the jurisdiction in which the associated person is employed or 
located; provided, however, the security-based swap dealer or major 
security-based swap participant must comply with Section 15F(b)(6) of 
the Exchange Act (15 U.S.C. 78o-10(b)(6)).

    By the Commission.

    Dated: May 10, 2019.
Vanessa A. Countryman,
Acting Secretary.
[FR Doc. 2019-10016 Filed 5-23-19; 8:45 am]
 BILLING CODE 8011-01-P

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