Thursday, August 05. 2021
The new measures reflect the SEC’s most recent efforts to prepare for Fall 2021’s registration of security-based swap dealers and establish Congressional requirements pursuant to Title VII of the Dodd-Frank Act. The development and issuance of the determination order was guided by the SEC’s commitment to safeguard investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.
Approved on July 23, 2021, the French Order establishes that certain French firms (particularly those registered with the SEC as SBS Entities) conditionally may meet particular requirements under Section 15F of the Exchange Act. Firms may do so by complying with French and European Union mandates that the SEC deems comparable.
The French Order, in accordance with Exchange Act rule 3a71-6, incorporates the following conditions and other limits to foster the comparability of regulatory outcomes:
- Margin – firms must collect variation and/or initial margin from a counterparty with regards to transactions in non-cleared security-based swaps, unless the counterparty would qualify for an exception from the collateral collection requirements under the SEC’s margin rule for non-cleared security-based swaps. They must also apply substituted compliance for the certain record making requirements related to margin.
- Internal Supervision – firms’ internal supervision frameworks are required to promote compliance with certain residual US requirements and the conditions to the orders.
- Compliance Reports – firms will be required to provide, in English, the compliance reports they submit to their management bodies pursuant to French and EU law no later than 15 days following the earlier of the submission of the report to their management body or the time the report is required to be submitted to the management. The report must cover applicable Exchange Act requirements and conditions of the orders. Together, the reports should cover the entire period that the Covered Entity’s annual compliance report must cover.
- Suitability – the firm’s counterparty will be required to be treated as a “per se professional client” under French and EU requirements and must not be a “special entity” as defined in Exchange Act section 15F(h)(2)(C) and Exchange Act rule 15Fh-2(d).
- Daily Mark Disclosure – the firm must be required to reconcile, and in fact reconcile, the portfolio containing the relevant security-based swap on each business day.
- Recordmaking – firms would need to: (a) apply substituted compliance to a linked substantive Exchange Act requirement, when a recordmaking requirement is linked to that substantive Exchange Act requirement for which a positive substituted compliance determination is being made (and conversely, apply substituted compliance to a substantive Exchange Act requirement linked to a recordmaking requirement); (b) apply substituted compliance to Exchange Act rule 18a-1 with respect to certain records that are important for the SEC to examine for compliance with Exchange Act rule 18a-1; and (c) preserve the data elements to create certain records required by the SEC’s rule and furnish the record in the format (e.g., blotter or ledger) required by that rule.
- Record Preservation – firms would need to: (a) apply substituted compliance to a linked substantive Exchange Act requirement, when a record preservation requirement is linked to that substantive Exchange Act requirement for which a positive substituted compliance determination is being made (and conversely, apply substituted compliance to a substantive Exchange Act requirement linked to a record preservation requirement); and (b) apply substituted compliance to Exchange Act rule 18a-1 with respect to certain records that are important for the SEC to examine for compliance with Exchange Act rule 18a-1.
- Unaudited Financial and Operational Reporting – firms would need to: (a) report periodic unaudited financial and operational information in the manner and format specified by SEC order or rule; (b) present the financial information in the filing in accordance with generally accepted accounting principles that the firm uses to prepare general purpose publicly available or available to be issued financial statements in France; and (c) apply substituted compliance to Exchange Act rule 18a-1 if subject to that rule.
- Annual Audited Reports – firms would need to: (a) simultaneously transmit to the SEC a copy of audited financial reports filed with French authorities; (b) include with the filing contact information of a person who can provide further information about the reports; (c) file accountant’s reports covering the financial reports if the firm is not required by French law to have its financial reports audited; (d) file compliance or exemption reports addressing statements related to Exchange Act rule 18a-4 for which substituted compliance is not available; (e) file supporting schedules related to Exchange Act rule 18a-4; and (f) apply substituted compliance to Exchange Act rule 18a-1.
- Notification – firms would need to: (a) simultaneously transmit to the SEC a copy of any notice required to be sent by comparable French laws; (b) include contact information of a person who can provide further details about the notice; (c) apply substituted compliance to Exchange Act rule 18a-1 (if subject to that rule) with respect to any required notifications related to that rule; and (d) apply substituted compliance with respect to a category of records required to made and kept current under Exchange Act rule 18a-5 with respect to the requirement to provide notification of a failure to make and keep current that category of records, and (e) apply substituted compliance to Exchange Act rule 18a-8(c) for Covered Entities with a prudential regulator.
- Access to Books and Records – firms would remain subject to Exchange Act requirements to keep books and records open to inspection by the SEC and to furnish promptly to the SEC legible, true, complete, and current copies of those records of the firm that are required to be preserved.
- English Translations – firms would need to promptly provide an English translation of any record, report, or notification upon request.
- Trading Relationship Documentation – firms would not receive substituted compliance in connection with certain disclosure-related provisions for transactions with US counterparties but would receive it for transactions with non-US counterparties.
- Portfolio Reconciliation and Dispute Reporting – firms would have to report counterparty valuation disputes directly to the SEC, based on French and EU timing requirements.
- Capital – firms would be required to: (1) maintain liquid assets (as defined in the condition) that have an aggregate market value that exceeds the amount of the firm’s total liabilities by at least $100 million before applying the deduction (haircut) specified in the capital condition (i.e., risk-weighted assets divided by 12.5), and by at least $20 million after applying the deduction (haircut); (2) make and preserve for three years a quarterly record demonstrating compliance with the capital condition; (3) notify the SEC in writing within 24 hours if the Covered Entity fails to meet the requirements of the capital condition; and (4) include its most recent statement of financial condition (i.e., balance sheet) filed with its local supervisor, whether audited or unaudited, with its initial written notice to the SEC of its intent to rely on substituted compliance. Firms also would be required to apply substituted compliance with respect to certain record making, record preservation, and notification requirements related to capital.
The French Order also provides for conditional substituted compliance in connection with requirements under the Exchange Act regarding the following:
- Recordkeeping and Reporting – requirements related to record creation, record maintenance, reporting, notices, and securities count
- Internal Supervision and Compliance – requirements related to supervision, conflicts of interest and chief compliance officers, and certain related matters
- Counterparty Protection – requirements related to fair and balanced communications, disclosure of material risks and characteristics, disclosure of material incentives or conflicts of interest, daily mark disclosure, “know your counterparty”, and suitability
- Risk Control – requirements related to capital, margin, risk management systems, trade acknowledgment and verification, portfolio reconciliation, portfolio compression and trading relationship documentation
Market participants will begin counting security-based swap transactions and positions toward the registration thresholds on August 6, 2021, while the registration compliance date for security-based swap dealers and major security-based swap participants is October 6, 2021.
For more details, contact the Office of Derivatives Policy in the SEC’s Division of Trading and Markets, at (202) 551-5870. Additional information regarding the Exchange Act Substituted Compliance Applications for Security-Based Swap Markets and Key Dates for Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants is available on sec.gov.
Order Granting Conditional Substituted Compliance in Connection with Certain Requirements Applicable to Non-US Security-Based Swap Dealers and Major Security-Based Swap Participants Subject to Regulation in the French Republic (sec.gov)