7 USC 6s - Registration and regulation of swap dealers and major swap participants

U.S Code last checked for updates: Nov 22, 2024

§ 6s.

Registration and regulation of swap dealers and major swap participants

(a)

Registration

(1)

Swap dealers

(2)

Major swap participants

(b)

Requirements

(1)

In general

(2)

Contents

(A)

In general

(B)

Continual reporting

(3)

Expiration

(4)

Rules

(5)

Transition

(6)

Statutory disqualification

(c)

Dual registration

(1)

Swap dealer

(2)

Major swap participant

(d)

Rulemakings

(1)

In general

(2)

Exception for prudential requirements

(A)

In general

(B)

Applicability

(e)

Capital and margin requirements

(1)

In general

(A)

Swap dealers and major swap participants that are banks

(B)

Swap dealers and major swap participants that are not banks

(2)

Rules

(A)

Swap dealers and major swap participants that are banks

The prudential regulators, in consultation with the Commission and the Securities and Exchange Commission, shall jointly adopt rules for swap dealers and major swap participants, with respect to their activities as a swap dealer or major swap participant, for which there is a prudential regulator imposing—

(i)

capital requirements; and

(ii)

both initial and variation margin requirements on all swaps that are not cleared by a registered derivatives clearing organization.

(B)

Swap dealers and major swap participants that are not banks

The Commission shall adopt rules for swap dealers and major swap participants, with respect to their activities as a swap dealer or major swap participant, for which there is not a prudential regulator imposing—

(i)

capital requirements; and

(ii)

both initial and variation margin requirements on all swaps that are not cleared by a registered derivatives clearing organization.

(C)

Capital

(3)

Standards for capital and margin

(A)

In general

To offset the greater risk to the swap dealer or major swap participant and the financial system arising from the use of swaps that are not cleared, the requirements imposed under paragraph (2) shall—

(i)

help ensure the safety and soundness of the swap dealer or major swap participant; and

(ii)

be appropriate for the risk associated with the non-cleared swaps held as a swap dealer or major swap participant.

(B)

Rule of construction

(i)

In general

Nothing in this section shall limit, or be construed to limit, the authority—

(I)

of the Commission to set financial responsibility rules for a futures commission merchant or introducing broker registered pursuant to section 6f(a) of this title (except for section 6f(a)(3) of this title) in accordance with section 6f(b) of this title; or

(II)

of the Securities and Exchange Commission to set financial responsibility rules for a broker or dealer registered pursuant to section 15(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(b)) (except for section 15(b)(11) of that Act (15 U.S.C. 78o(b)(11)) 1

 So in original. Probably should be followed by a third closing parenthesis.

in accordance with section 15(c)(3) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(c)(3)).

(ii)

Futures commission merchants and other dealers

(C)

Margin requirements

In prescribing margin requirements under this subsection, the prudential regulator with respect to swap dealers and major swap participants for which it is the prudential regulator and the Commission with respect to swap dealers and major swap participants for which there is no prudential regulator shall permit the use of noncash collateral, as the regulator or the Commission determines to be consistent with—

(i)

preserving the financial integrity of markets trading swaps; and

(ii)

preserving the stability of the United States financial system.

(D)

Comparability of capital and margin requirements

(i)

In general

(ii)

Comparability

The entities described in clause (i) shall, to the maximum extent practicable, establish and maintain comparable minimum capital requirements and minimum initial and variation margin requirements, including the use of non cash collateral, for—

(I)

swap dealers; and

(II)

major swap participants.

(4)

Applicability with respect to counterparties

(f)

Reporting and recordkeeping

(1)

In general

Each registered swap dealer and major swap participant—

(A)

shall make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or major swap participant;

(B)

(i)

for which there is a prudential regulator, shall keep books and records of all activities related to the business as a swap dealer or major swap participant in such form and manner and for such period as may be prescribed by the Commission by rule or regulation; and

(ii)

for which there is no prudential regulator, shall keep books and records in such form and manner and for such period as may be prescribed by the Commission by rule or regulation;

(C)

shall keep books and records described in subparagraph (B) open to inspection and examination by any representative of the Commission; and

(D)

shall keep any such books and records relating to swaps defined in section 1a(47)(A)(v) of this title open to inspection and examination by the Securities and Exchange Commission.

(2)

Rules

(g)

Daily trading records

(1)

In general

(2)

Information requirements

(3)

Counterparty records

(4)

Audit trail

(5)

Rules

(h)

Business conduct standards

(1)

In general

Each registered swap dealer and major swap participant shall conform with such business conduct standards as prescribed in paragraph (3) and as may be prescribed by the Commission by rule or regulation that relate to—

(A)

fraud, manipulation, and other abusive practices involving swaps (including swaps that are offered but not entered into);

(B)

diligent supervision of the business of the registered swap dealer and major swap participant;

(C)

adherence to all applicable position limits; and

(D)

such other matters as the Commission determines to be appropriate.

(2)

Responsibilities with respect to special entities

(A)

Advising special entities

(B)

Entering of swaps with respect to special entities

(C)

Special entity defined

For purposes of this subsection, the term “special entity” means—

(i)

a Federal agency;

(ii)

a State, State agency, city, county, municipality, or other political subdivision of a State;

(iii)

any employee benefit plan, as defined in section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002);

(iv)

any governmental plan, as defined in section 3 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002); or

(v)

any endowment, including an endowment that is an organization described in section 501(c)(3) of title 26.

(3)

Business conduct requirements

Business conduct requirements adopted by the Commission shall—

(A)

establish a duty for a swap dealer or major swap participant to verify that any counterparty meets the eligibility standards for an eligible contract participant;

(B)

require disclosure by the swap dealer or major swap participant to any counterparty to the transaction (other than a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant) of—

(i)

information about the material risks and characteristics of the swap;

(ii)

any material incentives or conflicts of interest that the swap dealer or major swap participant may have in connection with the swap; and

(iii)

(I)

for cleared swaps, upon the request of the counterparty, receipt of the daily mark of the transaction from the appropriate derivatives clearing organization; and

(II)

for uncleared swaps, receipt of the daily mark of the transaction from the swap dealer or the major swap participant;

(C)

establish a duty for a swap dealer or major swap participant to communicate in a fair and balanced manner based on principles of fair dealing and good faith; and

(D)

establish such other standards and requirements as the Commission may determine are appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this chapter.

(4)

Special requirements for swap dealers acting as advisors

(A)

In general

It shall be unlawful for a swap dealer or major swap participant—

(i)

to employ any device, scheme, or artifice to defraud any Special Entity or prospective customer who is a Special Entity;

(ii)

to engage in any transaction, practice, or course of business that operates as a fraud or deceit on any Special Entity or prospective customer who is a Special Entity; or

(iii)

to engage in any act, practice, or course of business that is fraudulent, deceptive or manipulative.

(B)

Duty

(C)

Reasonable efforts

Any swap dealer that acts as an advisor to a Special Entity shall make reasonable efforts to obtain such information as is necessary to make a reasonable determination that any swap recommended by the swap dealer is in the best interests of the Special Entity, including information relating to—

(i)

the financial status of the Special Entity;

(ii)

the tax status of the Special Entity;

(iii)

the investment or financing objectives of the Special Entity; and

(iv)

any other information that the Commission may prescribe by rule or regulation.

(5)

Special requirements for swap dealers as counterparties to special entities

(A)

Any swap dealer or major swap participant that offers to enter or enters into a swap with a Special Entity shall—

(i)

comply with any duty established by the Commission for a swap dealer or major swap participant, with respect to a counterparty that is an eligible contract participant within the meaning of subclause (I) or (II) of clause (vii) of section 1a(18) 3

 So in original. Probably should be “section 1a(18)(A)”.

of this title, that requires the swap dealer or major swap participant to have a reasonable basis to believe that the counterparty that is a Special Entity has an independent representative that—

(I)

has sufficient knowledge to evaluate the transaction and risks;

(II)

is not subject to a statutory disqualification;

(III)

is independent of the swap dealer or major swap participant;

(IV)

undertakes a duty to act in the best interests of the counterparty it represents;

(V)

makes appropriate disclosures;

(VI)

will provide written representations to the Special Entity regarding fair pricing and the appropriateness of the transaction; and

(VII)

in the case of employee benefit plans subject to the Employee Retirement Income Security act 4

 So in original. Probably should be “Act”.

of 1974 [29 U.S.C. 1001 et seq.], is a fiduciary as defined in section 3 of that Act (29 U.S.C. 1002); and

(ii)

before the initiation of the transaction, disclose to the Special Entity in writing the capacity in which the swap dealer is acting; and

(B)

the Commission may establish such other standards and requirements as the Commission may determine are appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of this chapter.

(6)

Rules

(7)

Applicability

This section shall not apply with respect to a transaction that is—

(A)

initiated by a Special Entity on an exchange or swap execution facility; and

(B)

one in which the swap dealer or major swap participant does not know the identity of the counterparty to the transaction.

(i)

Documentation standards

(1)

In general

(2)

Rules

(j)

Duties

Each registered swap dealer and major swap participant at all times shall comply with the following requirements:

(1)

Monitoring of trading

(2)

Risk management procedures

(3)

Disclosure of general information

The swap dealer or major swap participant shall disclose to the Commission and to the prudential regulator for the swap dealer or major swap participant, as applicable, information concerning—

(A)

terms and conditions of its swaps;

(B)

swap trading operations, mechanisms, and practices;

(C)

financial integrity protections relating to swaps; and

(D)

other information relevant to its trading in swaps.

(4)

Ability to obtain information

The swap dealer or major swap participant shall—

(A)

establish and enforce internal systems and procedures to obtain any necessary information to perform any of the functions described in this section; and

(B)

provide the information to the Commission and to the prudential regulator for the swap dealer or major swap participant, as applicable, on request.

(5)

Conflicts of interest

The swap dealer and major swap participant shall implement conflict-of-interest systems and procedures that—

(A)

establish structural and institutional safeguards to ensure that the activities of any person within the firm relating to research or analysis of the price or market for any commodity or swap or acting in a role of providing clearing activities or making determinations as to accepting clearing customers are separated by appropriate informational partitions within the firm from the review, pressure, or oversight of persons whose involvement in pricing, trading, or clearing activities might potentially bias their judgment or supervision and contravene the core principles of open access and the business conduct standards described in this chapter; and

(B)

address such other issues as the Commission determines to be appropriate.

(6)

Antitrust considerations

Unless necessary or appropriate to achieve the purposes of this chapter, a swap dealer or major swap participant shall not—

(A)

adopt any process or take any action that results in any unreasonable restraint of trade; or

(B)

impose any material anticompetitive burden on trading or clearing.

(7)

Rules

(k)

Designation of chief compliance officer

(1)

In general

(2)

Duties

The chief compliance officer shall—

(A)

report directly to the board or to the senior officer of the swap dealer or major swap participant;

(B)

review the compliance of the swap dealer or major swap participant with respect to the swap dealer and major swap participant requirements described in this section;

(C)

in consultation with the board of directors, a body performing a function similar to the board, or the senior officer of the organization, resolve any conflicts of interest that may arise;

(D)

be responsible for administering each policy and procedure that is required to be established pursuant to this section;

(E)

ensure compliance with this chapter (including regulations) relating to swaps, including each rule prescribed by the Commission under this section;

(F)

establish procedures for the remediation of noncompliance issues identified by the chief compliance officer through any—

(i)

compliance office review;

(ii)

look-back;

(iii)

internal or external audit finding;

(iv)

self-reported error; or

(v)

validated complaint; and

(G)

establish and follow appropriate procedures for the handling, management response, remediation, retesting, and closing of noncompliance issues.

(3)

Annual reports

(A)

In general

In accordance with rules prescribed by the Commission, the chief compliance officer shall annually prepare and sign a report that contains a description of—

(i)

the compliance of the swap dealer or major swap participant with respect to this chapter (including regulations); and

(ii)

each policy and procedure of the swap dealer or major swap participant of the chief compliance officer (including the code of ethics and conflict of interest policies).

(B)

Requirements

A compliance report under subparagraph (A) shall—

(i)

accompany each appropriate financial report of the swap dealer or major swap participant that is required to be furnished to the Commission pursuant to this section; and

(ii)

include a certification that, under penalty of law, the compliance report is accurate and complete.

(l)

Segregation requirements

(1)

Segregation of assets held as collateral in uncleared swap transactions

(A)

Notification

(B)

Segregation and maintenance of funds

At the request of a counterparty to a swap that provides funds or other property to a swap dealer or major swap participant to margin, guarantee, or secure the obligations of the counterparty, the swap dealer or major swap participant shall—

(i)

segregate the funds or other property for the benefit of the counterparty; and

(ii)

in accordance with such rules and regulations as the Commission may promulgate, maintain the funds or other property in a segregated account separate from the assets and other interests of the swap dealer or major swap participant.

(2)

Applicability

The requirements described in paragraph (1) shall—

(A)

apply only to a swap between a counterparty and a swap dealer or major swap participant that is not submitted for clearing to a derivatives clearing organization; and

(B)

(i)

not apply to variation margin payments; or

(ii)

not preclude any commercial arrangement regarding—

(I)

the investment of segregated funds or other property that may only be invested in such investments as the Commission may permit by rule or regulation; and

(II)

the related allocation of gains and losses resulting from any investment of the segregated funds or other property.

(3)

Use of independent third-party custodians

The segregated account described in paragraph (1) shall be—

(A)

carried by an independent third-party custodian; and

(B)

designated as a segregated account for and on behalf of the counterparty.

(4)

Reporting requirement

(Sept. 21, 1922, ch. 369, § 4s, as added and amended Pub. L. 111–203, title VII, §§ 724(c), 731, July 21, 2010, 124 Stat. 1684, 1703; Pub. L. 114–1, title III, § 302(a), Jan. 12, 2015, 129 Stat. 28.)

cite as: 7 USC 6s