[Federal Register Volume 76, Number 205 (Monday, October 24, 2011)]
[Proposed Rules]
[Pages 65784-65884]
[FR Doc No: 2011-26889]

Vol. 76

Monday,

No. 205

October 24, 2011

Part II

Securities and Exchange Commission

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17 CFR Parts 240 and 249

Registration of Security-Based Swap Dealers and Major Security-Based
Swap Participants; Proposed Rule

Federal Register / Vol. 76 , No. 205 / Monday, October 24, 2011 /
Proposed Rules

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 240 and 249

[Release No. 34-65543; File No. S7-40-11]
RIN 3235-AL05

Registration of Security-Based Swap Dealers and Major Security-
Based Swap Participants

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: Section 764(a) of Title VII of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (``Dodd-Frank Act'') requires the
Securities and Exchange Commission (``Commission'') to issue rules to
provide for the registration of security-based swap dealers (``SBS
Dealers'') and major security-based swap participants (collectively,
``SBS Entities''). Pursuant to this requirement, the Commission is
proposing new Rules 15Fb1-1 through 15Fb6-1 under the Securities
Exchange Act of 1934, as amended (the ``Exchange Act''), to provide for
the registration of SBS Entities. The Commission is also proposing
forms to facilitate registration (and withdrawal from registration) of
these entities.

DATES: Comments should be received on or before December 19, 2011.

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number S7-40-11 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number S7-40-11. This file number
should be included on the subject line if e-mail 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 Web site (http://www.sec.gov/rules/proposed.shtml). Comments will also be available for Web site 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 a.m. and 3 p.m. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly.

FOR FURTHER INFORMATION CONTACT: David W. Blass, Chief Counsel; Joseph
Furey, Assistant Chief Counsel; or Bonnie Gauch, Special Counsel,
Division of Trading and Markets, Securities and Exchange Commission,
100 F Street, NE., Washington, DC 20549-7010.

SUPPLEMENTARY INFORMATION:

Table of Contents:

I. Introduction
    A. Background
    B. General Approach to the SBS Entity Registration Process
    1. Conditional Registration
    i. Implementation Plan and the Last Compliance Date
    ii. Major Security-Based Swap Participant Applicants Registering
After the Last Compliance Date
    2. Ongoing Registration
    3. Solicitation of Comments on the General Approach to the SBS
Entity Registration Process
II. Proposed Exchange Act Rules and Forms
    A. Registration Application and Amendment
1. Proposed Rule 15Fb2-1
    i. Form of Application
    ii. Senior Officer Certification
    iii. Electronic Filing
    iv. Standards for Granting or Denying Applications
    v. Request for Comment on Additional Registration Considerations
    2. Amendments to Application Forms: Proposed Rule 15Fb2-3
    B. Associated Persons
    1. Certification
    2. Alternative Process
    C. Termination of Registration
    1. Expiration: Proposed Rule 15Fb3-1
    2. Withdrawal: Proposed Rule 15Fb3-2
    3. Cancellation and Revocation: Proposed Rule 15Fb3-3
    D. Special Requirements for Nonresident SBS Entities
    1. United States Agent for Service of Process
    2. Access to Books and Records of Nonresident SBS Entity
    E. Special Situations
    1. Succession: Proposed Rule 15Fb2-5
    2. Insolvency: Proposed Rule 15Fb2-6
    F. Technical Rules
    1. Electronic Signatures
    2. Temporary Rule To Facilitate Paper Filing of Forms
    G. Forms
    1. Form SBSE
    2. Form SBSE-A
    3. Form SBSE-BD
    4. Form SBSE-C
    5. Form SBSE-W
    6. Tagged Data Formats
    H. Alternative Approaches Considered
III. Request for Comment
IV. Paperwork Reduction Act
    A. Summary of Collection of Information
    B. Proposed Use of Information
    C. Respondents
    D. Total Initial and Annual Reporting and Recordkeeping Burdens
    1. Burden Associated With Filing Application Forms
    2. Burden Associated With Amending Application Forms
    3. Burden Associated With Certification
    4. Burdens Relating to Associated Persons
    5. Burdens on Nonresident SBS Entities
    6. Burden Related to Retention of Manually Signed Signature
Pages
    7. Burden Associated With Filing Withdrawal Form
    8. Burden Associated With Proposed Temporary Rule 15Fb2-2T
    9. Request for Comment on Burden Estimates
    E. Retention Period of Recordkeeping Requirements
    F. Collection of Information Is Mandatory
    G. Confidentiality
    H. Request for Comment
V. Economic Analysis
    A. Benefits
    B. Costs
    1. Costs Attributable to Filing the Forms
    2. Costs of Certification
    3. Costs Relating to Associated Persons
    4. Costs to Nonresident SBS Entities
    5. Cost of Retaining Manually Signed Signature Pages
    6. Costs Associated With Proposed Temporary Rule 15Fb2-2T
    C. Request for Comment
VI. Consideration of Impact on the Economy
VII. Regulatory Flexibility Act Certification
VIII. Statutory Basis and Text of Proposed Rules

I. Introduction

A. Background

    On July 21, 2010, the President signed the Dodd-Frank Act into
law.\1\ The Dodd-Frank Act was designed to promote, among other things,
the financial stability of the United States by improving
accountability and transparency in the financial system.\2\ Among other
measures, the Dodd-Frank Act provides the Commission and the Commodity
Futures Trading Commission (``CFTC'') with authority to regulate
certain aspects of the over-the-counter (``OTC'') derivatives market,
where the recent financial crisis demonstrated a need for enhanced
regulation. The Dodd-Frank Act is intended to provide the Commission

and the CFTC with effective new regulatory tools to oversee that
market, which has grown exponentially in recent years and is capable of
affecting significant sectors of the U.S. economy.
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    \1\ The Dodd-Frank Wall Street Reform and Consumer Protection
Act, Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ See id., at Preamble.
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    Title VII of the Dodd-Frank Act broadly categorizes covered
products as ``swaps,'' \3\ regulated primarily by the CFTC, ``security-
based swaps,'' \4\ regulated primarily by the Commission, or ``mixed
swaps,'' jointly regulated by the Commission and the CFTC.\5\ Among
other things, the Dodd-Frank Act prohibits any person from acting as a
``security-based swap dealer'' \6\ or ``major security-based swap
participant'' \7\ without being registered with the Commission, and
requires that the Commission issue rules to provide for registration of
these SBS Entities.\8\
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    \3\ Defined in Section 1a of the Commodity Exchange Act
(``CEA'').
    \4\ Defined in Section 3(a)(68) of the Exchange Act. All
references to the Exchange Act contained in this release refer to
the Securities Exchange Act of 1934, as modified by the Dodd-Frank
Act.
    \5\ In addition, Section 712(d)(1) of the Dodd-Frank Act directs
the Commission and the CFTC, in consultation with the Board of
Governors of the Federal Reserve System, to propose rules and
interpretative guidance to further define, among other things, the
terms ``security-based swap,'' ``swap dealer,'' ``security-based
swap dealer,'' ``major swap participant,'' and ``major security-
based swap participant.'' The Commission and CFTC jointly proposed
further rules and guidance with respect to the dealer and
participant definitions on December 7, 2010. 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. 63452
(Dec. 7, 2010), 75 FR 80174 (Dec. 10, 2010) (the ``Intermediary
Definitions Release''). The Commission and CFTC jointly proposed
further rules and guidance with respect to the definitions of
``swap'', ``security-based swap'', and other terms on April 29,
2011. Further Definition of ``Swap, '' ``Security-Based Swap, '' and
``Security-Based Swap Agreement''; Mixed Swaps; Security-Based Swap
Agreement Recordkeeping, Exchange Act Release No. 64372 (Apr. 29,
2011), 76 FR 29818 (May 23, 2011)).
    \6\ Subject to certain exceptions, Exchange Act Section
3(a)(71)(A) defines ``security-based swap dealer'' to mean any
person who: (i) Holds themself out as a dealer in security-based
swaps; (ii) makes a market in security-based swaps; (iii) regularly
enters into security-based swaps with counterparties as an ordinary
course of business for its own account; or (iv) engages in any
activity causing it to be commonly known in the trade as a dealer or
market maker in security-based swaps. See also supra note 5.
    \7\ Exchange Act Section 3(a)(67)(A) defines ``major security-
based swap participant'' to mean ``any person: (i) who is not a
security-based swap dealer; and (ii)(I) who maintains a substantial
position in security-based swaps for any of the major security-based
swap categories, as such categories are determined by the
Commission, excluding both positions held for hedging or mitigating
commercial risk and positions maintained by any employee benefit
plan (or any contract held by such a plan) as defined in paragraphs
(3) and (32) of Section 3 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1002) for the primary purpose of hedging or
mitigating any risk directly associated with the operation of the
plan; (II) whose outstanding security-based swaps create substantial
counterparty exposure that could have serious adverse effects on the
financial stability of the United States banking system or financial
markets; or (III) that is a financial entity that (aa) is highly
leveraged relative to the amount of capital such entity holds and
that is not subject to capital requirements established by an
appropriate Federal banking regulator; and (bb) maintains a
substantial position in outstanding security-based swaps in any
major security-based swap category, as such categories are
determined by the Commission.'' See also supra note 5.
    \8\ The Commission has concluded that SBS Entities that were not
registered with the Commission as of the July 16, 2011, effective
date of Section 15F of the Exchange Act are permitted to lawfully
continue their business absent Commission action with respect to the
SBS Entity registration regime. 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 (Jun. 15,
2011), 76 FR 36287, 36299-300 (Jun. 22, 2011) (the ``Effective Date
Release'').
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    The Commission is proposing Rules 15Fb1-1 to 15Fb6-1 under the
Exchange Act to establish procedures for an SBS Entity to register with
the Commission and additional provisions related to such registration,
including: (1) A requirement to amend an inaccurate application for
registration; (2) procedures for succession to, or withdrawal from,
registration; and (3) procedures for the Commission to cancel or revoke
registration.\9\ The proposed rules would also establish a requirement
for an SBS Entity to certify that none of its associated persons that
effect, or are involved in effecting, security-based swaps on the SBS
Entity's behalf is subject to statutory disqualification. The
Commission is proposing forms to facilitate SBS Entities' registration
and withdrawal from registration.
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    \9\ The Exchange Act gives the Commission broad authority to
craft a registration regime for SBS Entities that helps the
Commission accomplish its missions of protecting investors,
maintaining fair, orderly, and efficient markets, and facilitating
capital formation. For example, Section 15F(b)(2) of the Exchange
Act states that an application for registration ``shall be made in
such form and manner as prescribed by the Commission, and shall
contain such information as the Commission considers necessary
concerning the business in which the applicant is or will be
engaged.'' In addition, Section 15F(d)(1) of the Exchange Act
directs the Commission to ``adopt rules for persons that are
registered as [SBS Entities] under [Section 15F].''
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    The proposed rules and forms would address additional registration
requirements applicable to nonresident SBS Entities, including
requirements to appoint a U.S. agent for service of process, and to
provide an opinion of counsel regarding the entity's ability to (1)
Provide the Commission with prompt access to books and records, and (2)
be subject to onsite examinations and inspections by the Commission.
    In proposing these rules and forms, the Commission is mindful that
there are similarities and differences among SBS Entities that hold
substantial positions in security-based swaps and dealers and
participants that hold substantial positions in other financial
products. The Commission also understands that there are similarities
and differences between the security-based swap market and the markets
for other financial products. The Commission believes that, both over
time and as a result of Commission proposals to implement the Dodd-
Frank Act, further information concerning the application of existing
registration and regulatory regimes to SBS Entities and the development
of the security-based swap market may alter certain considerations
relating to the registration of SBS Entities. During the process of
implementing the Dodd-Frank Act and beyond, the Commission intends to
closely monitor developments relating to SBS Entities and the security-
based swap markets. In particular, the Commission intends to evaluate
further information concerning the range of market participants that
may register as SBS Entities, the activities of and services provided
by such market participants, whether these activities and services are
identical or similar to activities and services already regulated by
the federal securities laws or other laws, and how applicable existing
registration and regulatory regimes interact with one another and apply
to SBS Entities.

B. General Approach to the SBS Entity Registration Process

    The Commission's proposed registration requirements for SBS
Entities largely are modeled after the registration regime applicable
to broker-dealers,\10\ while also taking into account the CFTC's
registration requirements for intermediaries.\11\ We preliminarily
believe that because the proposed requirements would closely align with
current requirements for our other registrants, and would be similar to
the registration regime for CFTC registrants, this approach would
provide the Commission and the staff with key information about
registrants while leveraging Commission staff experience and standing
procedures to facilitate a

substantive review of applications for registration and inspections of
registrants. In addition, the broker-dealer registration regime should
be familiar to, and understood by, many SBS Entities. In particular,
SBS Dealers may already be registered and regulated as broker-dealers
or may be affiliated with a broker-dealer. Moreover, if an SBS Dealer
enters into security-based swap transactions with persons that are not
eligible contract participants, it must register as a broker-dealer
unless an exemption or exception applies.\12\ The proposed approach
would seek to ensure that a market participant registered as both an
SBS Entity and a broker-dealer is subject to a similar and
complementary registration regime. It could therefore both ease the
regulatory burden on such entities and help to establish a consistent
regime for regulating SBS Dealers and dealers of other securities.
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    \10\ This includes rules promulgated under Sections 15(b) and
17(a) of the Exchange Act.
    \11\ 17 CFR 3.1 et seq. Futures commission merchants (``FCMs'')
and introducing brokers presently register with the CFTC by filing
Form 7-R with the National Futures Association. The CFTC has
proposed to register swap dealers and major swap participants
through this same process. See 75 FR 71379, at 71382 (Nov. 23,
2010).
    \12\ See 15 U.S.C. 78c(a)(5) and 78o(a).
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    As explained below, our proposed approach to the application
process would build on our existing broker-dealer registration forms--
most notably, Form BD--but also is designed to avoid unnecessary
duplication by permitting SBS Entities that are otherwise registered or
registering as intermediaries with either the Commission or the CFTC to
complete simplified application forms. Under this process, SBS Entities
registered or registering with the Commission as broker-dealers or with
the CFTC as swap dealers or major swap participants would submit a
shorter SBS Entity registration form along with a copy of their
existing registration form.
    An SBS Entity would be permitted to file an application for
registration as soon as final registration rules and forms are adopted.
Further, each SBS Entity would need to be registered (at least
conditionally) by the compliance date set forth in the final
registration rules. In certain circumstances, SBS Entities would be
required to apply for conditional registration, which they could
convert to ongoing registration by fulfilling the applicable
requirements set forth in the proposed rules. As discussed in more
detail below, those requirements would differ depending on whether: (1)
The application was filed with the Commission before or after the
compliance dates for certain new rules to be adopted pursuant to
Section 15F of the Exchange Act; and (2) the applicant is an SBS Dealer
or instead is a major security-based swap participant. Conditional
registration would expire after a specified time, and a conditionally
registered SBS Entity would be required to cease its security-based
swap business if it had not satisfied the applicable conditions to
convert its registration to an ongoing registration. The Commission
could, however, extend any conditional registration for good cause.
    Although the Commission may be familiar with SBS Entities that are
already registered with the Commission (e.g., broker-dealers or
investment advisers), the Commission is mindful that SBS Entities will
nonetheless constitute a new class of registrants that may present
business models and practices with which the Commission will need to
gain experience. Accordingly, the Commission expects that its careful
review of each application for registration and each certification on
Form SBSE-C (the ``Senior Officer Certification'' described further
below) will not only facilitate the Commission's decision to grant or
deny registration to an SBS Entity, but also help to develop this
experience and aid in the identification of areas for further inquiry,
including, as may be appropriate, examinations of particular firms or
business units by the Commission's Office of Compliance Inspections and
Examinations (``OCIE''), in order to establish an effective ongoing
examination program for such entities.\13\
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    \13\ In addition to SBS Entities, the Dodd-Frank Act requires
the Commission to register for the first time security-based swap
execution facilities, security-based swap data repositories,
municipal advisors, and certain private fund advisers. In light of
these new categories of registrants, the Commission is presently
reviewing the various standards and processes it uses to facilitate
registration of the many types of entities required to register with
it--including broker-dealers, investment advisers, nationally
recognized statistical rating organizations, transfer agents,
clearing agencies, exchanges, national securities associations, and
others. In this regard, the Commission plans to issue a concept
release designed to collect information and evaluate different
aspects of these registration standards and processes. In
particular, the Commission intends to consider the policy objectives
of registration, how best to achieve those policy objectives through
registration and other means, and the relative benefits and costs of
the various means available. Through such a concept release, the
Commission would hope to gain insight into how evolving market
practices, technology, and other considerations could affect or be
affected by the Commission's approach to the registration processes
for various types of entities. Recognizing that the Commission has
finite resources to allocate to registration, examination, and
enforcement functions, the Commission intends to use the concept
release to seek comment as to how it can most effectively and
efficiently utilize these registration and other functions to help
ensure that entities registered by the Commission to perform
important financial intermediary and other functions in the
securities markets have the capability to carry out those functions
and to fully comply with all applicable regulatory requirements.
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    OCIE currently uses risk-based methodologies to focus Commission
examination resources on firms and activities that could pose the
greatest risk to investors and the integrity of the markets. Consistent
with that general approach, OCIE and the Division of Trading and
Markets intend jointly to perform a substantive review of applications
and Senior Officer Certifications received for registration of SBS
Entities to determine whether additional Commission action is
appropriate and to evaluate potential registrants' risk for purposes of
prioritizing examinations.
1. Conditional Registration
    Under the proposed rules, an SBS Entity seeking Commission
registration generally would be required to apply for conditional
registration by submitting a complete application to the Commission.
The Commission would then grant conditional registration if it finds
that the SBS Entity's application is complete, except that the
Commission may institute proceedings to determine whether the
Commission should deny conditional registration if the applicant is
subject to a statutory disqualification or the Commission is aware of
inaccurate statements in the application.\14\ The Commission would
notify the entity electronically when conditional registration is
granted, and would make information regarding registration status
publicly available.
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    \14\ Such proceedings would include notice of the grounds for
denial under consideration and opportunity for hearing, and that at
the conclusion of such proceedings, the Commission would grant or
deny such registration. See proposed Rule 15Fb2-1(d)(1).
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    For an SBS Entity to convert its conditional registration to
ongoing registration, it would be required to submit a Senior Officer
Certification signed by one of its knowledgeable senior officers. The
contents of the Senior Officer Certification and the time frame within
which it must be submitted to the Commission are described more fully
below and specified in the rule. Generally, however, the Senior Officer
Certification would state that, after due inquiry, the senior officer
has reasonably determined that the SBS Entity has the operational,
financial, and compliance capabilities to act as an SBS Dealer or a
major security-based swap participant, as applicable, and has
documented the process by which he or she reached such determination.
We preliminarily believe that this certification requirement would help
to protect both investors and markets from potential problems arising
from SBS Entities that may lack the capabilities necessary to operate
their businesses in compliance with their regulatory obligations.

i. Implementation Plan and the Last Compliance Date
    After proposing all of the key rules under Title VII, the
Commission intends to seek public comment on a detailed implementation
plan that will permit a roll-out of the new securities-based swap
requirements in a logical, progressive, and efficient manner, while
minimizing unnecessary disruption and costs to the markets. Among other
things, the implementation plan would inform the timing of the
requirement for SBS Entities to register with the Commission, including
whether such registration requirement would exist prior to the latest
date, designated by the Commission, by which SBS Dealers and major
security-based swap participants must begin complying with all of the
initial rules promulgated under Section 15F of the Exchange Act (``Last
Compliance Date'').\15\
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    \15\ The term ``Last Compliance Date'' is defined in proposed
Rule 15Fb2-1(e). The Commission anticipates that the Last Compliance
Date would be clearly stated in the relevant adopting release and
prominently announced on the Commission's Web site.
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    The Commission believes it is possible that SBS Entities may be
required to register before the Last Compliance Date.\16\ For these
``transitional'' applicants, whether SBS Dealer or major security-based
swap participant, there would be a period of time before the Last
Compliance Date when the Senior Officer Certification would be either
unduly burdensome for registrants (e.g., a rule has been promulgated by
the Commission under Section 15F of the Exchange Act, but compliance
with that rule is not yet required) or inappropriate for meeting the
goals of the certification (e.g., the Commission has not yet adopted a
significant rule under Section 15F of the Exchange Act, so the
certification would not cover compliance in an important regulatory
area).
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    \16\ The Commission notes that, regardless of the timing of the
Last Compliance Date, a registered SBS Entity would be required to
comply with certain self-operative provisions in Exchange Act
Section 15F upon registration (conditional or otherwise), absent
further Commission action. See Effective Date Release, supra note 8.
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    To address this potential transition issue, we preliminarily
believe it is appropriate to propose a conditional registration process
that would permit registration without a Senior Officer Certification
prior to the Last Compliance Date. This process would be available to
all applicants (whether SBS Dealer or major security-based swap
participant) and would, among other things, facilitate the
identification of existing SBS Entities in advance of the compliance
date of certain substantive requirements. Conditional registration
would be effective once the Commission grants such conditional
registration and would expire on the Last Compliance Date (unless
conditional registration was extended pursuant to paragraphs (b) or (c)
of proposed Rule 15Fb3-1). Ongoing registration of these conditionally
registered SBS Entities would be conditioned on, among other things,
the registrant providing the Senior Officer Certification to the
Commission on or before the Last Compliance Date. As described above,
fulfillment of this requirement by an SBS Entity would provide the
Commission with some assurance that the SBS Entity understands and has
the ability to undertake its business in compliance with the applicable
requirements. Once a registrant submits its Senior Officer
Certification, the Commission would consider converting its conditional
registration to an ongoing registration.\17\ However, whether or not a
conditional registrant provides the Senior Officer Certification on or
before the Last Compliance Date, the Commission would retain the
flexibility to extend conditional registration for good cause.
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    \17\ Submission of a Senior Officer Certification also would
toll expiration of the SBS Entity's conditional registration for
thirty days, if necessary to facilitate the Commission's review, or
such longer period as the Commission finds for good cause (see
proposed Rule 15Fb3-1).
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    Once the Last Compliance Date has occurred, the conditional
registration process for SBS Dealers would effectively collapse into
the ongoing registration process and any SBS Dealer would need to
submit its Senior Officer Certification with its application (i.e.,
after the Last Compliance Date, SBS Dealers could only apply for
ongoing registration). Major securities-based swap participants could
still conditionally register (as described below) because of challenges
separate and apart from implementation of Section 15F of the Exchange
Act.
ii. Major Security-Based Swap Participant Applicants Registering After
the Last Compliance Date
    As noted in the proposed definition of major security-based swap
participant,\18\ an entity whose security-based swap portfolio crosses
established thresholds in a fiscal quarter would have a two-month grace
period following the end of that quarter to submit a complete
application for registration as a major security-based swap
participant. The Commission preliminarily believes that, while there is
likely to be some advance notice of an impending status change due to
ongoing monitoring of portfolios in the ordinary course of business, an
entity that would likely fall within the definition of a ``major
security-based swap participant'' because of activities in a given
fiscal quarter may not have adequate compliance systems in place within
two months after the end of the triggering quarter to allow the entity
to provide the Commission with a Senior Officer Certification.
Therefore, the Commission proposes to conditionally register such new
participants based on their filing of a complete application before the
expiration of the two-month grace period, subject to a requirement that
they provide a Senior Officer Certification to the Commission within
four months of the submission of their complete application (i.e.,
within six months after the end of the triggering quarter). This
proposal is intended to balance the additional time a new major
security-based swap participant may require to build out its compliance
structure with the Commission's strong interest in having new
registrants promptly comply with applicable federal securities laws.
Such conditional registration would be effective once the Commission
grants conditional registration and would expire four months after
receipt of that application unless the firm files a Senior Officer
Certification with the Commission within that time frame.
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    \18\ See Intermediary Definitions Release, supra note 5, at 103.
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    As with conditional registrations granted prior to the Last
Compliance Date, once a major security-based swap participant that
applies for registration after the Last Compliance Date submits its
Senior Officer Certification, the Commission could consider converting
its conditional registration to an ongoing registration, as described
below. In addition, whether or not a conditionally registered major
security-based swap participant provides the Senior Officer
Certification within four months after submitting its application, the
Commission retains the flexibility to extend the conditional
registration for good cause.
    The Commission notes that the conditional registration mechanism
for major security-based swap participants would remain in place even
after the Last Compliance Date (i.e., major security-based swap
participants could always avail themselves of a conditional
registration period).
2. Ongoing Registration
    The proposed rules would provide for the ongoing registration of
all conditionally registered SBS Entities following their fulfillment
of the applicable requirements, as well as SBS

Dealers registering with the Commission after the Last Compliance Date
(and, therefore would not be required to conditionally register). As
described above, an SBS Entity would need to submit both a completed
application and a Senior Officer Certification to obtain ongoing
registration. An SBS Entity that was conditionally registered would not
be required to submit a new application. At the time it applies for
ongoing registration, however, the SBS Entity would be required to
amend its application to correct any information that has become
inaccurate for any reason.
    The Commission would grant ongoing registration if it finds that
the requirements of Section 15F(b) of the Exchange Act are satisfied,
but the Commission would institute proceedings to determine whether the
Commission should deny ongoing registration if the Commission does not
make such a finding, if it finds that the applicant is subject to a
statutory disqualification, or if it is aware of inaccurate statements
in the application or certification.\19\ The Commission would notify
the entity electronically when ongoing registration is granted, and
would make information regarding registration status publicly
available. Pursuant to proposed Rule 15Fb3-1(a), ongoing registration
would be effective until any cancellation, revocation or withdrawal of
the registration or on any other event the Commission determines should
trigger expiration.
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    \19\ Such proceedings would include notice of the grounds for
denial under consideration and opportunity for hearing, and that at
the conclusion of such proceedings, the Commission would grant or
deny such registration. See proposed Rule 15Fb2-1(d)(2).
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3. Solicitation of Comments on the General Approach to the SBS Entity
Registration Process
    We request comment on this approach to the SBS Entity registration
process.
    Q-1. Should the Commission model the registration regime applicable
to SBS Entities more closely after one or more other registration
regimes regulated by the Commission (e.g., securities exchanges or
associations,\20\ clearing agencies,\21\ or investment advisers \22\),
self regulatory organizations (``SROs''),\23\ or other regulators? \24\
If so, please describe which model should be followed and why.
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    \20\ 15 U.S.C. 78f(b)(1) and 15 U.S.C. 78o-3(b)(1)-(2).
    \21\ 15 U.S.C. 78q-1(b)(3)(A).
    \22\ 15 U.S.C. 80b-3(c).
    \23\ See, e.g., National Association of Securities Dealers Rules
1013 and 1014; Chicago Board Options Exchange Rules 3.5(c)(ii),
8.83(b), and 44.12(b); and NYSE Arca Rule 7.22(a).
    \24\ See, e.g., National Futures Association Registration Rules
(which can be found at http://www.nfa.futures.org/nfamanual/NFAManualTOC.aspx?Section=8).
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    Q-2. Does the conditional process for SBS Entity registration
outlined above provide a practicable solution to the potential timing
issues raised by the implementation of Section 15F of the Exchange Act?
Are there additional or alternative conditions or mechanisms that would
be appropriate for addressing those issues?
    Q-3. Does the conditional process for major security-based swap
participant registration outlined above provide a practicable solution
to the potential timing issues raised by the look-back features in the
proposed definition of ``major security-based swap participant''
definition? Are there additional or alternative conditions or
mechanisms that would be appropriate for addressing those issues?
    Q-4. Should the Commission delay all registrations until the Last
Compliance Date instead of adopting a conditional registration process?
Why or why not?
    Q-5. Should the Commission consider granting conditional
registration automatically based on the receipt of a completed
application or some other or additional documents? If so, why?
    Q-6. Should the Commission notify the SBS Entity that it has
granted conditional or ongoing registration prior to making the SBS
Entity's registration status publicly available? If so, why and what
should be the timing difference?
    Q-7. Should the Commission provide additional guidance regarding
the process for institution of proceedings? For instance, should the
Commission include timeframes within which proceedings would be
instituted and/or a decision to grant or deny registration based on
those proceedings should be provided (e.g., Exchange Act Section
15(b)(1))? If so, what timeframes or other guidance would be
appropriate and why?
    Q-8. Is it appropriate to seek to minimize duplication by
permitting registered intermediaries to follow a registration process
that uses simplified forms? Why or why not?
    Q-9. Should these intermediaries be required to file their existing
registration forms with the Commission as part of this process, or
should they be required to authorize the Commission to obtain access to
those forms at the relevant repository (e.g., the Financial Industry
Regulatory Authority (``FINRA'') or the National Futures Association
(``NFA''))?
    Q-10. Should SBS Entities be afforded more time (beyond the Last
Compliance Date) to prepare and provide their Senior Officer
Certification? Why or why not? If so, how much additional time would be
appropriate?
    Q-11. Should major security-based swap participants that file
applications after the Last Compliance Date be afforded more or less
than four months to prepare and provide their Senior Officer
Certification? Why or why not?
    Q-12. What would be the advantages and disadvantages and costs and
benefits of the Commission adopting an approach to SBS Entity
registration that encompasses a more substantive inquiry concerning the
business of an applicant? What would be the impact on market
participants, including investors?
    Q-13. Are there additional or alternative mechanisms that the
Commission could employ to better protect markets and market
participants and minimize the burden on registrants while meeting the
regulatory objectives of a registration scheme for SBS Entities?

Commenters are encouraged to identify other possible solutions that
would allow the Commission to promptly review and consider SBS Entity
registration applications so they would not experience undue
interruptions in business while also providing the Commission
reasonable assurance that they have the ability to carry out their
business and are able to comply with applicable federal securities
laws.

II. Proposed Exchange Act Rules and Forms

A. Registration Application and Amendment

1. Proposed Rule 15Fb2-1
    Proposed Rule 15Fb2-1 would set forth the method through which SBS
Entities could apply for registration with the Commission. Essentially,
the forms and process for filing applications and other documents
electronically with the Commission would be identical for SBS Dealers
and major security-based swap participants. This proposed rule also
would describe the timing of such filings and the standard of review
applied by the Commission in determining whether to grant or deny
registration, which may differ slightly for SBS Dealers and major
security-based swap participants, depending on the type of registration
the firm is seeking. While it may be appropriate for certain rules
applicable to SBS Dealers to differ from those applicable to major
security-based swap participants, the Commission preliminarily believes
that

the registration rules and forms need not differ significantly because
the information the Commission would need to determine whether
registration is appropriate is similar for both types of entities.
i. Form of Application
    Paragraph (a) of proposed Rule 15Fb2-1 would provide that an SBS
Entity would apply for registration electronically on Form SBSE, Form
SBSE-A, or Form SBSE-BD, as appropriate, in accordance with the
instructions to the form. In general:
     SBS Entities registered or registering with the Commission
as broker-dealers would apply for registration using Form SBSE-BD;
     SBS Entities registered or registering with the CFTC as
swap dealers or major swap participants (and not also registered or
registering with the Commission as broker-dealers) would apply for
registration using Form SBSE-A; and
     SBS Entities that do not fit either of the above
categories would apply for registration using Form SBSE.

Specifics regarding each of these forms and their differences and uses
are discussed in more detail below. These forms would be used to
register with the Commission regardless of whether an SBS Entity was
applying for conditional or ongoing registration.
    The Commission solicits comment on the use of forms to register
with the Commission.
    Q-14. Would an alternative mechanism be more appropriate for
registering SBS Entities? If so, which one and why?
    Q-15. Should the registration forms differ based on whether the
entity is registering as an SBS Dealer or major security-based swap
participant? If so, how?
ii. Senior Officer Certification
    Paragraph (b) of proposed Rule 15Fb2-1 would require that each SBS
Entity provide the Commission with a certification on Form SBSE-C to
facilitate the Commission's review of each firm's application for
ongoing registration. A knowledgeable senior officer of the SBS Entity
would be required to sign the certification,\25\ which is designed to
provide the Commission with the applicant's assurance that the
applicant has the capabilities necessary to operate as an SBS Entity
and, therefore, that the applicant should qualify for registration
under Exchange Act Section 15F(b). Accordingly, the certification would
assist the Commission in determining whether to grant the SBS Entity
ongoing registration. Such an informed determination, based in part on
the certification, will help the Commission maintain orderly and
efficient markets and protect investors by helping to ensure that the
Commission only grants registration to SBS Entities that can attest
that they possess the operational, financial, and compliance
capabilities to conduct business as an SBS Entity. Specifically, under
the proposal, each SBS Entity must have a senior officer certify that,
after due inquiry, he or she has reasonably determined that the SBS
Entity has the operational,\26\ financial,\27\ and compliance \28\
capabilities to act as an SBS Entity. In addition, the proposal would
require that the senior officer certify that he or she has documented
the process by which he or she reached that determination. While the
Commission has required regulated entities to provide a certification
in other contexts,\29\ a requirement that an applicant or regulated
entity certify as to its ability to engage in the business it would be
registered to do is relatively new.\30\
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    \25\ In accordance with Proposed Rule 15Fb1-1(b), the SBS Entity
will need to maintain a manually signed copy of this certification
as part of its books and records until at least three years after
the certification was filed with the Commission.
    \26\ The concept of ``operational capability'' can be an
important regulatory consideration because an SBS Entity with
insufficient infrastructure, technology, and human resources
presents operational risks that may adversely impact its
counterparties and the broader market--e.g., if transactions are
inaccurately documented, not documented at all, or if insufficient
margin is collected. See Trade Acknowledgment and Verification of
Security-Based Swap Transactions, Exchange Act Release No. 63727
(Jan. 14, 2011), 76 FR 3859, at 3860 (Jan. 21, 2011) (proposing
release) (discussing the recognition by various parties of the
importance of operational infrastructure in the over-the-counter
derivatives market) (the ``Trade Acknowledgement Proposing
Release''). The Commission expects that a key foundation for the
Senior Officer Certification would be the capability of an SBS
Entity to comply with the obligations that would be imposed by the
Trade Acknowledgment Proposing Release, if adopted, other legal
obligations applicable to the operations of an SBS Entity, and the
capability of the SBS Entity to conduct its business as represented
in the SBS Entity's application for ongoing registration.
    \27\ The concept of ``financial capability'' can be an important
regulatory consideration because of, among other things, the role
adequate financing plays in protecting an SBS Entity's
counterparties and the broader market by ensuring that the SBS
Entity has sufficient working capital and liquidity for its
security-based swap business consistent with regulatory requirements
and as needed to respond to market conditions. The Commission will
separately propose capital rules for SBS Entities, as required by
the Dodd Frank Act. 15 U.S.C. 78o-10(e). The Commission expects that
the capability of an SBS Entity to comply with these obligations, if
adopted, would form a key foundation for the Senior Officer
Certification.
    \28\ The concept of ``compliance capability'' can be an
important regulatory consideration because of, among other things,
the wholesale creation of a new regulatory regime for security-based
swaps under the Dodd-Frank Act. For example, in proposing business
conduct rules for SBS Entities, the Commission proposed to require
that each SBS Entity ``[establish, maintain, and enforce] written
policies and procedures addressing the supervision of the types of
security-based swap business in which the [SBS Entity] is engaged
that are reasonably designed to achieve compliance with applicable
securities laws and the rules and regulations thereunder.'' Business
Conduct Standards for Security-Based Swap Dealers and Major
Security-Based Swap Participants, Exchange Act Release No. 64766
(Jun. 29, 2011), 76 FR 42396, (Jul. 18, 2011), as corrected by
Exchange Act Release No. 64766, 76 FR 46668 (Aug. 3, 2011)
(proposing release). The Commission expects that development and
implementation of such a compliance regime, if adopted, would serve
as a key foundation for the Senior Officer Certification.
    \29\ See, e.g., 17 CFR 240.15c3-5, 17 CFR 240.13a-14, and 17 CFR
270.30a-2.
    \30\ See, e.g., Registration of Municipal Advisors, Exchange Act
Release No. 63576 (Dec. 20, 2010), 76 FR 824, (Jan. 6, 2011)
(proposing release) (the ``Registration of Municipal Advisors
Proposing Release'').
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    The Commission preliminarily believes that receipt of a Senior
Officer Certification would provide assurances to the Commission that
each SBS Entity has the requisite capabilities to operate in the
capacity for which it seeks registration. The Senior Officer
Certification is designed to require a deliberate and thoughtful self-
assessment by each SBS Entity of its capabilities and thus should
provide assurances to potential investors, customers of, and
counterparties to an SBS Entity that the SBS Entity has the requisite
capabilities to act in that capacity. Further, this Senior Officer
Certification requirement could help prevent disorderly and unstable
markets that could result from the failure of a registered SBS Entity
that lacks the requisite capabilities to operate its business in a
registered capacity. The Senior Officer Certification also may enhance
market participants' ability to assess the counterparty credit risk
associated with a particular SBS Entity counterparty. In this way, the
Senior Officer Certification should help to protect investors and other
market participants from SBS Entities that are not competent to engage
in that business, lack the financial resources to do so, or are unable
or unwilling to comply with applicable law. The Commission thus
preliminarily believes that the Senior Officer Certification could help
the efficient functioning of the market and enhance the confidence of
investors and other market participants.
    The Senior Officer Certification requirement, in other words, is
meant to address many of the same considerations that arise during the
in-depth review by the Commission and its staff, or, in some cases,
SROs, prior to

granting registration to certain applicants.\31\ For example, under
Sections 6(b) and 19(a) of the Exchange Act, an exchange may not be
registered unless the Commission finds that the exchange ``is so
organized and has the capacity to be able to carry out the purposes of
the Exchange Act and to comply, and [* * *] to enforce compliance by
its members and persons associated with its members, with the
provisions of [the Exchange Act], the rules and regulations thereunder,
and the rules of the exchange.'' \32\ Similarly, under Section 17A of
the Exchange Act, a clearing agency may not be registered unless the
Commission finds that the agency ``has the capacity to be able to
facilitate the prompt and accurate clearance and settlement of
securities transactions and derivative agreements, contracts and
transactions for which it is responsible, to safeguard securities and
funds in its custody or control or for which it is responsible, to
comply with the provisions of [the Exchange Act] and the rules and
regulations thereunder, [and] to enforce [* * *] compliance by its
participants with the rules of the clearing agency, and to carry out
the purposes of this section.'' \33\ To this end, the Commission has
published a series of standards ``that the [staff] will use in
reviewing the organizations, capacities and rules of clearing agencies
that currently are registered temporarily with the Commission and of
clearing agencies that may apply for registration * * *.'' \34\ Broker-
dealers that register with the Commission under Section 15(b) also must
become a member of an SRO, and SRO rules generally incorporate
membership application procedures that include, among other things,
assessments by the SRO of the broker-dealer's operational, financial,
and compliance capabilities.\35\
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    \31\ See, e.g., 15 U.S.C. 78f(b)(1) (regarding registration of
national securities exchanges), and 15 U.S.C. 78q-1(b)(3)(A)
(regarding registration of clearing agencies). See also 15 U.S.C.
78o-3(b)(1) and (2) (regarding registration of national securities
associations). In addition, the Commission recently proposed rules
governing the registration of security-based swap data repositories
(``SDRs''), security-based swap execution facilities (``SB SEFs''),
security-based swap clearing agencies (``SBS CAs''), and municipal
advisors that relate to potential registrants' operational,
financial, and compliance capabilities. For example, the proposed
registration rules for security-based swap data repositories are
intended to, among other things, assure the Commission that ``an SDR
is so organized, and has the capacity, to be able to assure the
prompt, accurate, and reliable performance of its functions as an
SDR, comply with any applicable provision of the Federal securities
laws and the rules and regulations thereunder, and carry out its
functions in a manner consistent with the purposes of Exchange
Act.'' These proposed rules may also require an SDR to file with the
Commission, as a condition of registration or continued
registration, a review relating to the SDR's operational capacity
and ability to meet its regulatory obligations. Such review could be
in the form of a report conducted by the SDR, an independent third
party, or both. Security-Based Swap Data Repository Registration,
Duties, and Core Principles, Exchange Act Release No. 63347 (Nov.
19, 2010), 75 FR 77306 (Dec. 10, 2010) (proposing release).
Similarly, the proposed registration rules for security-based swap
execution facilities are designed to assure the Commission that a
registrant ``has adequate financial, operational, and managerial
resources to discharge each responsibility of the SB SEF, as
determined by the Commission.'' Registration and Regulation of
Security-Based Swap Execution Facilities, Exchange Act Release No.
63825 (Feb. 2, 2011), 76 FR 10948 (Feb. 28, 2011) (proposing
release). Among other things, these rules state in part that ``the
financial resources of a SB SEF shall be considered to be adequate
if the value of the financial resources exceeds the total amount
that would enable the SB SEF to cover its operating costs for a one
year period.'' The Commission also proposed registration rules for
security-based swap clearing agencies that require, among other
things, registrants to establish, maintain, and enforce written
policies and procedures reasonably designed to ensure that their
systems provide adequate levels of capacity, resiliency, and
security. Such policies and procedures shall, at a minimum: (i)
Establish reasonable current and future capacity estimates; (ii)
conduct periodic capacity stress tests of critical systems to
determine such systems' ability to process transactions in an
accurate, timely, and efficient manner; (iii) develop and implement
reasonable procedures to review and keep current its system
development and testing methodology; (iv) review the vulnerability
of its systems and data center computer operations to internal and
external threats, physical hazards, and natural disasters; and (v)
establish adequate contingency and disaster recovery plans. These
rules further require that clearing agencies that provide central
counterparty (``CCP'') services need to have a qualified person
conduct a review of models that are used to set margin levels, along
with related parameters and assumptions, in order to assure that the
models perform in a manner that facilitates prompt and accurate
clearance and settlement of transactions. In determining whether a
person is qualified to conduct the model validation, clearing
agencies providing CCP services could consider several factors,
including the person's experience in validating margin models,
expertise in risk management generally, and understanding of the
clearing agency's operations and procedures. Clearing Agency
Standards for Operation and Governance, Exchange Act Release No.
64017 (Mar. 3, 2011), 76 FR 14472 (Mar. 16, 2011) (proposing
release) (the ``Clearing Agency Standards Proposing Release'').
Finally, the proposed registration rules for municipal advisors
would require municipal advisors to certify that they have: ``1)
sufficient qualifications, training, experience, and competence to
effectively carry out their designated functions; 2) met, or within
any applicable timeframe will meet, such standards of training
experience, and competence, and such other qualifications, including
testing, for a municipal advisor, required by the Commission, the
MSRB or any other relevant self-regulatory organization; and 3) the
necessary understanding of, and ability to comply with, all
applicable regulatory obligations.'' Registration of Municipal
Advisors Proposing Release, supra note 30.
    \32\ 15 U.S.C. 78f(b)(1).
    \33\ 15 U.S.C. 78q-1(b)(3)(A).
    \34\ The Commission has established a series of standards ``that
the [staff] will use in reviewing the organizations, capacities and
rules of clearing agencies that currently are registered temporarily
with the Commission and of clearing agencies that may apply for
registration * * *.'' Regulation of Clearing Agencies, Exchange Act
Release No. 16900 (Jun. 17. 1980), 45 FR 41920 (June 23, 1980)
(emphasis added). See also the Clearing Agency Standards Proposing
Release, supra note 30.
    \35\ See, e.g., NASD Rules 1013 and 1014 (membership application
review requires a new broker-dealer to, among other things, file a
detailed business plan, explain its sources of funding, describe the
educational background and experience of its personnel, and undergo
a membership interview). Existing FINRA members that wish to enter
into a materially new business, such as dealing in security-based
swaps, must also file an application to do so, and those
applications are similarly reviewed to determine whether the broker-
dealer has the requisite capabilities to conduct the new business.
NASD Rule 1017. Exchange Act Rule 15b2-2 requires that a new broker-
dealer be examined within six months to evaluate whether the broker-
dealer is operating in conformity with applicable financial
responsibility rules and again within twelve months to evaluate
whether it is also operating in conformity with all other applicable
provisions of the Exchange Act and rules thereunder. 17 CFR
240.15b2-2(b) & (c).
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    At this time, although we provide guidance above regarding the
factors a senior officer would use to serve as a foundation for the
Senior Officer Certification,\36\ we are not proposing a specific
definition of the term ``operational, financial and compliance
capabilities.'' Instead, we request comment regarding whether and how
that phrase should be further defined or interpreted. The Commission
recognizes that whether an SBS Entity has the operational, financial
and compliance capabilities to act as an SBS Entity likely will depend
on its particular facts and circumstances, including, among other
things: the scope and nature of its security-based swap business; its
other related financial and business activities; the extent to which it
is subject to other registration and regulatory requirements or other
supervisory oversight with respect to its activities; its relationships
with, and reliance on, affiliates, service providers, and other
parties; and the extent and nature of its historical involvement in
security-based swap transactions. Moreover, it may be appropriate to
consider the capabilities required for this certification by reference
to regulatory standards. For example, attesting to capabilities might
include a self-assessment of whether the SBS Entity is capable of
communicating in a manner that is based on principles of fair dealing
and good faith; \37\ whether the SBS Entity has established all
contractual or other arrangements and business relationships necessary
to conduct its security-based swap business; \38\ whether the SBS
Entity has or has adequate plans to obtain facilities

that are sufficient for its operations; \39\ and whether the SBS Entity
is capable of maintaining a level of capital that is adequate to
support the SBS Entity's intended business operations on a continuing
basis.\40\
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    \36\ See supra notes 26-28.
    \37\ See Section 15F(h)(3)(C) (providing that business conduct
requirements adopted by the Commission shall establish a duty to
communicate in a manner ``based on principles of fair dealing and
good faith'').
    \38\ See NASD Rule 1014(a)(4).
    \39\ See NASD Rule 1014(a)(5).
    \40\ See NASD Rule 1014(a)(7).
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    The proposed rules would require that a senior officer of an SBS
Entity certify that he or she has reasonably determined that, after
``due inquiry,'' the security-based swap dealer or major security-based
swap participant has the operational, financial, and compliance
capabilities to act as an SBS Entity.\41\ We believe it is important to
make explicit that the senior officer is obligated under the rule to
conduct some inquiry to form his or her reasonable determination.
However, the Commission does not propose to prescribe any single method
a senior officer must use to gain an appropriate level of comfort and
information before signing the Senior Officer Certification. In other
words, different SBS Entities may utilize different processes to
provide a basis for a senior officer's reasonable determination that
the SBS Entity has the requisite capabilities.\42\
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    \41\ This certification must be accurate as of the date the
certification is filed with the Commission. An SBS Entity would not
be required to have a senior officer update the certification after
the SBS Entity has been approved for ongoing registration.
    \42\ For example, in satisfying other certification requirements
some SBS Entities may use a sub-certification process whereby the
senior officer will not certify a firm-wide statement unless and
until other persons responsible for certain activities in turn
certify to the senior officer that the standard has been met, while
other SBS Entities may use an internal or external audit-type
process whereby a senior officer may choose to employ a third party
to review an area subject to a firm-wide certification before
submitting the certification.
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    As described in Part I above, the proposed registration process
would include conditional and ongoing registration. Pursuant to
subparagraph (b)(1)(i) and (ii), respectively, of proposed Rule 15Fb2-
1, SBS Entities that register conditionally during the transitional
period would need to submit the Senior Officer Certification on or
before the Last Compliance Date and major security-based swap
participants that file an application after the Last Compliance Date
would need to submit the certification within four months after filing
an application. The Commission preliminarily believes that these
timeframes would provide senior officers of conditionally registered
SBS Entities sufficient time to determine that they are able to provide
the relevant certification. Pursuant to subparagraph (b)(2), an SBS
Dealer that files an application after the Last Compliance Date would
need to submit the Senior Officer Certification with its application.
    The Commission requests comment on all aspects of the proposed
requirement for SBS Entities to provide the Commission with a Senior
Officer Certification on Form SBSE-C as specified in proposed Rule
15Fb2-1(b), and on the registration process generally. With respect to
this certification, the Commission is interested in commenters
responses to the following questions, and also to questions Q-54.
through Q-61. relating to Additional Registration Considerations.
    Q-16. Would the Senior Officer Certification requirement provide
sufficient assurance that each SBS Entity has the necessary
capabilities to act as a registered SBS Entity? Why or why not? Would
it provide sufficient assurance that SBS Entities have established
controls to ensure compliance with all applicable securities law
requirements? Why or why not?
    Q-17. Would the Senior Officer Certification provide sufficient
assurance to customers of and counterparties to SBS Entities,
investors, eligible contract participants and other market participants
that new SBS Entities have the requisite capabilities to act as SBS
Entities? Why or why not?
    Q-18. Should the Commission only require SBS Dealers, and not major
security-based swap participants, to provide a Senior Officer
Certification? Why or why not? What would be the comparative
advantages, disadvantages, costs and/or benefits of such an approach?
    Q-19. Alternatively, should the form of Senior Officer
Certification an SBS Entity must file be driven by whether the entity
is an SBS Dealer or major security-based swap participant? For
instance, should an SBS Dealer be required to certify to its
capabilities and a major security-based swap participant be required to
certify to its policies and procedures? If so, what form of Senior
Officer Certification should SBS Dealers be required to file and which
form of Senior Officer Certification should major security-based swap
participants be required to file? What would be the comparative
advantages, disadvantages, costs and/or benefits of requiring dealers
and participants to certify using different certification language?
    Q-20. What alternative forms of Senior Officer Certification should
be considered, if any? For example, should the proposed Senior Officer
Certification use the language that the Commission proposed with
respect to the certification to be made by municipal advisors? \43\ Why
or why not? What would be the comparative advantages, disadvantages,
costs and/or benefits of using the same certification language the
Commission has proposed for use by municipal advisors as opposed to the
language proposed?
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    \43\ See supra note 31, regarding the certification the
Commission proposed for use by municipal advisors in the
Registration of Municipal Advisors Proposing Release.
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    Q-21. The concept of developing and implementing written policies
and procedures has often been used by the Commission to further its
regulatory objectives. Should the Senior Officer Certification instead
require that a senior officer certify that ``to the best of his or her
knowledge, after due inquiry, the security-based swap dealer or major
security-based swap participant has developed and implemented written
policies and procedures reasonably designed to prevent violation of
federal securities laws, the rules thereunder, and applicable self-
regulatory organization rules?'' \44\ Why or why not? What would be the
impact of the Senior Officer Certification if it did not specifically
address operational capability? What would be the comparative
advantages, disadvantages, costs and/or benefits of using this language
as opposed to the language proposed?
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    \44\ See, e.g., Section 15(g) of the Exchange Act (requiring
that broker-dealers establish, maintain and enforce written policies
and procedures reasonably designed to prevent the misuse of
material, non-public information). 15 U.S.C. 78o(g). See also Rule
206(4)-7 of the Investment Advisers Act of 1940 (the ``Advisers
Act'') (requiring that investment advisers must adopt and implement
written policies and procedures reasonably designed to prevent
violations of the Advisers Act and the rules thereunder). 17 CFR
275.206(4)-7.
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    Q-22. Should the Commission more specifically define the term
``operational, financial, and compliance capabilities''? If so, how
should this term be defined to, among other things, provide greater
certainty to market participants about the basis for providing the
Senior Officer Certification?
    Q-23. Should the Commission specifically define the term
``capability?'' Should the Commission, for example, define the term
``capability,'' as it relates to the financial, operational, and
compliance functions of an SBS Entity, as ``having the necessary
ability or qualities''? Why or why not? Should the Commission define
the term capability in some other way? If so, how and why?
    Q-24. Alternatively, should the Commission simply adopt the
Webster's New World Dictionary definition which

defines the term ``capability'' to mean ``the quality of being capable;
practical ability,'' and defines the term ``capable'' to mean, among
other things, ``having ability; able; skilled; competent --capable of;
having the ability or qualities necessary for; able or ready to?'' \45\
Why or why not? Should the Commission instead adopt some other
dictionary definition? If so, what other dictionary definition should
be used and why? Alternatively, should the Commission define the term
capability in some other way? If so, how and why?
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    \45\ Websters New World Dictionary 110 (2nd concise ed. 1975).
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    Q-25. Should the Commission determine that a firm may rely on the
establishment, maintenance and enforcement of written policies and
procedures by an SBS Entity that are reasonably designed to prevent
violation of federal securities laws, the rules thereunder, and
applicable self-regulatory organization rules as a basis for a senior
officer to certify that an SBS Entity has the appropriate ``compliance
capability?'' Why or why not?
    Q-26. Should the Commission determine that a firm may rely on the
establishment, maintenance and enforcement of written policies and
procedures by an SBS Entity that are reasonably designed to assure that
the SBS Entity complies with applicable capital and margin requirements
as a basis for a senior officer to certify that an SBS Entity has the
appropriate ``financial capability?'' Why or why not?
    Q-27. If the Commission does not specifically define what would
constitute operational, financial, and compliance capabilities, will
there still be a sufficient basis for SBS Entities and/or their senior
officers to provide the Commission with a Senior Officer Certification?
Why or why not? Would any potential uncertainty arising from the
decision not to define at this time the terms ``operational, financial,
and compliance capabilities'' and ``capabilities'' cause difficulties
for SBS Entities seeking to register on an ongoing basis? If so, please
describe.
    Q-28. Should SBS Entities be required to provide a Senior Officer
Certification as to any capabilities in addition to the three
specified? If so, what other capabilities and why? Alternatively,
should any of the capabilities be eliminated from the Senior Officer
Certification? If so, which one(s) and why? For example, should the
certification relating to an SBS Entity's capabilities be confined to
operational capability given the regulatory imperative to comply with
applicable regulations (including capital rules)? What would be the
comparative advantages, disadvantages, costs and/or benefits of adding
or eliminating such capabilities?
    Q-29. In addition to, or in lieu of the Senior Officer
Certification requirement, should the Commission utilize an approach to
demonstration of capabilities similar to the one we use to register
national securities exchanges under Exchange Act Section 6(b)(1) \46\
(which requires that an exchange have the ``capacity to be able to
carry out the purposes of [the Exchange Act * * *], the rules and
regulations thereunder'')? Would such a standard provide additional
clarity as to the capabilities to be required of registrants? What
would be the advantages and disadvantages and the costs and benefits of
such an alternative process?
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    \46\ See supra note 32.
---------------------------------------------------------------------------

    Q-30. Should the Commission instead utilize an approach to
demonstration of capabilities similar to the one we use to register
clearing agencies under Exchange Act Section 17A(b)(3)(A) \47\ (which
requires that an exchange have the ``capacity to be able to facilitate
the prompt and accurate clearance and settlement of securities
transactions and derivative agreements, contracts and transactions for
which it is responsible, to safeguard securities and funds in its
custody or control or for which it is responsible, to comply with the
provisions of [the Exchange Act] and the rules and regulations
thereunder, [and] to enforce [* * *] compliance by its participants
with the rules of the clearing agency, and to carry out the purposes of
this section'')? Would such a standard provide additional clarity as to
the capabilities to be required of registrants? What would be the
advantages and disadvantages and the costs and benefits of such an
alternative process?
---------------------------------------------------------------------------

    \47\ See supra note 33.
---------------------------------------------------------------------------

    Q-31. Should the form of Senior Officer Certification an SBS Entity
must file be driven by whether the entity is, or is not, already
registered with the Commission as a broker-dealer or with the CFTC as a
swap dealer or major swap participant? Why or why not? If so, what
forms of certification would be appropriate for use by SBS Entities
that are already registered with one of the Commission or the CFTC?
What would be the comparative advantages, disadvantages, costs and/or
benefits of this approach?
    Q-32. Should SBS Entities already registered with the Commission as
a broker-dealer or with the CFTC as a swap dealer or major swap
participant be excepted from the requirement to file a Senior Officer
Certification? Why or why not? What would be the comparative
advantages, disadvantages, costs and/or benefits of this approach?
    Q-33. If an SBS Entity were also registered with the Commission as
a broker-dealer and an SRO were to conduct a ``material change in
business review'' of the SBS Entity's security-based swap business,
should the SBS Entity be permitted to rely on the SRO's review and
approval of that new business as a basis for its Senior Officer
Certification? Would the form of Senior Officer Certification affect
the SBS Entity's ability to rely on such a review and approval? If so,
how and why? Given that SBS Entities that are also registered as
broker-dealers would be required by existing SRO rules to undergo a
material change in business review, are there any advantages and
disadvantages or costs and benefits associated with reliance on an SRO
``material change in business review'' and approval as a basis for its
Senior Officer Certification?
    Q-34. Similarly, if an SBS Entity were also involved in swap
activity, could that entity use any CFTC, NFA or prudential regulatory
agency's review of its swap business to inform its Senior Officer
Certification to the Commission? Would the form of Senior Officer
Certification affect the SBS Entity's ability to rely on such a review
and approval? If so, how and why? Are there any advantages and
disadvantages or costs and benefits associated with reliance on a CFTC,
NFA or prudential regulatory agency's review of its swap business as a
basis for its Senior Officer Certification?
    Q-35. Would the Senior Officer Certification requirement
effectively require an SBS Entity to employ a third party's services to
examine or confirm conclusions required for the certification? Why or
why not? If third party services were effectively required, what would
be the advantages and disadvantages and costs and benefits of such
third party services?
    Q-36. Should we include the due inquiry requirement in the rule?
Should we instead specify particular steps a senior officer must take
to determine whether the SBS Entity has the requisite capabilities?
    Q-37. Should the senior officer of an SBS Entity be required to
disclose on Form SBSE-C or elsewhere, the nature of the ``due inquiry''
he or she performed before signing Form SBSE-C and his or her resulting
findings and conclusions? Why or why not?
    Q-38. Should the Commission define its expectations with respect to
the ``due inquiry'' a senior officer should perform

before signing Form SBSE-C? If so, what should be included as part of a
senior officer's ``due inquiry?'' Should ``due inquiry'' differ
depending on whether the SBS Entity is an SBS Dealer or a major
security-based swap participant? Please explain.
    Q-39. Is the timeframe within which the proposed Senior Officer
Certification would need to be filed appropriate? If not, should the
timeframe be shorter or longer and why?
    Q-40. Should the Commission eliminate the requirement that a senior
officer certify that he or she has documented the process by which he
or she reached his or her determination regarding the SBS Entity's
capacity? Why or why not? Should the Commission instead simply require
that a senior officer document this process and require that the SBS
Entity maintain those documents as part of its books and records? Would
a senior officer believe that he or she may be second-guessed if, among
other circumstances, the senior officer certifies as to an SBS Entity's
capabilities but does not retain documentation demonstrating how he or
she reached this determination?
iii. Electronic Filing
    Paragraph (c) of proposed Rule 15Fb2-1 would address the manner in
which the application, certification, and any additional registration
documents would be filed with the Commission. Proposed paragraph (c)(1)
would require applications, certifications, and any additional
documents to be filed electronically. The Commission anticipates that
the EDGAR system will be expanded to facilitate registration of SBS
Entities because it likely would provide the most cost-effective
solution.\48\
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    \48\ To the extent the Commission utilizes the EDGAR system to
facilitate registration of SBS Entities, applicants would need to
utilize the EDGAR Filer Manual (as defined in 17 CFR 232.11) to
facilitate their filing of applications electronically. The EDGAR
Filer Manual contains all the technical specifications for filers to
submit filings using the EDGAR system. Generally, entities filing
documents in electronic format through the EDGAR system must comply
with the applicable provisions of the EDGAR Filer Manual in order to
assure the timely acceptance and processing of those filings.
---------------------------------------------------------------------------

    Proposed paragraph (c)(2) of proposed Rule 15Fb2-1 would specify
the effective date of filing of applications and certifications
submitted pursuant to the paragraphs (a) and (b). Subparagraph
(c)(2)(i) would provide that an SBS Entity's application submitted
pursuant to paragraph (a) would be considered filed only when a
complete Form SBSE, Form SBSE-A, or Form SBSE-BD, as appropriate, and
all required additional documents are filed with the Commission or its
designee. Subparagraph (c)(2)(ii) would provide that an SBS Entity's
certification submitted pursuant to paragraph (b) would be considered
filed when a complete Form SBSE-C is filed electronically with the
Commission or its designee.
    If a technological means to facilitate receipt and retention of
applications is not functional by the time final rules are adopted,
proposed temporary Rule 15Fb2-2T, described more fully below, would
require SBS Entities to file applications and additional documents in
paper form.
    The Commission requests comment on the proposed method for
receiving applications.
    Q-41. Should the Commission not require electronic submission of
applications? If not, why?
    Q-41. Instead of expanding the EDGAR system to receive SBS Entity
applications for registration, should the Commission utilize some other
system? Please explain. What would be the comparative advantages and
disadvantages and costs and benefits of utilizing a system other than
EDGAR?
    Q-43. What would be the advantages and disadvantages and costs and
benefits to prospective applicants of expansion of the EDGAR system to
receive SBS Entity applications for registration, especially with
respect to the varying levels of familiarity that they may have with
this system?
    Q-44. Should the Commission designate another entity to facilitate
the electronic receipt of applications? Why or why not? If so, what
types of entities should we consider?
    Q-45. What other issues, if any, should the Commission consider in
connection with electronic filing?
iv. Standards for Granting or Denying Applications
    Paragraph (d) of proposed Rule 15Fb2-1 would provide that the
Commission may grant or deny an application for registration, and would
set forth the standards the Commission would use to make that
determination. The grant or denial of a conditional registration would
depend principally on the completeness of an application, whether the
applicant is subject to a statutory disqualification, and whether the
Commission is aware of inaccurate statements in the application. The
grant or denial of an ongoing registration would also require that the
Commission find that the requirements of Exchange Act Section 15F(b)
are satisfied. As noted in Part I above, conditionally registered SBS
Entities would need to obtain ongoing registration to continue doing a
security-based swap business once their conditional registration
expires.\49\
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    \49\ Proposed Rule 15Fb3-1(b)(1) would provide that conditional
registrations granted pursuant to paragraph (d)(1) of Proposed Rule
15Fb2-1 would expire on the Last Compliance Date for SBS Entities
that filed a complete application before the Last Compliance Date,
unless the SBS Entity files with the Commission a certification on
Form SBSE-C or the Commission extends conditional registration for
good cause. Proposed Rule 15Fb3-1(b)(2) would provide that
conditional registrations granted pursuant to paragraph (d)(1) of
Proposed Rule 15Fb2-1 would expire four months after a major
security-based swap participant files a complete application, if it
filed such application after the Last Compliance Date, unless the
major security-based swap participant files with the Commission a
certification on Form SBSE-C. In both cases, if the Senior Officer
Certification is filed within the given timeframe, conditional
registration is extended by 30 days to allow the Commission time to
determine whether to grant or deny ongoing registration.
---------------------------------------------------------------------------

    When considering an application for conditional registration,
proposed paragraph 15Fb2-1(d)(1) provides that the Commission would
grant such registration if it finds that the firm's application is
complete, except that the Commission may institute proceedings to
determine whether to deny conditional registration if it finds that the
applicant is subject to a statutory disqualification or the Commission
is aware of inaccurate statements in the application. Such proceedings
would include notice of the grounds for denial under consideration and
opportunity for hearing. At the conclusion of such proceedings, the
Commission would grant or deny such registration.
    Paragraph (d)(2) would allow the Commission to grant ongoing
registration to an SBS Entity. It is contemplated that ongoing
registration would be sought by firms that have been conditionally
registered with the Commission, as well as by new firms entering the
marketplace that have not been conditionally registered (e.g., an SBS
Dealer seeking registration after the Last Compliance Date). Paragraph
(d)(2) would specify that the Commission would grant ongoing
registration based on a firm's application and certification. Proposed
paragraph (d)(2) would provide that if the Commission granted
conditional registration to an SBS Entity, the Commission could grant
or deny ongoing registration based on the original application
submitted by the SBS Entity, as amended,\50\ and the certification
submitted to the Commission by the SBS Entity pursuant to paragraph
(b). When considering any

application for ongoing registration, Rule 15Fb2-1(d)(2) would provide
that the Commission would grant registration if it finds that the
requirements of Exchange Act Section 15F(b) are satisfied, except that
the Commission may institute proceedings to determine whether ongoing
registration should be denied if it does not make such finding or if it
finds that the applicant is subject to a statutory disqualification or
the Commission is aware of inaccurate statements in the application or
certification. Such proceedings would include notice of the grounds for
denial under consideration and opportunity for hearing, and that at the
conclusion of such proceedings, the Commission would grant or deny such
registration.
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    \50\ The SBS Entity may have amended its application to address
changes that may have occurred in the intervening period between the
date the application was originally filed and the date the
Commission evaluates whether ongoing registration should be granted.
---------------------------------------------------------------------------

    As discussed above, the Commission would notify the entity
electronically when conditional or ongoing registration is granted, and
would make information regarding registration status publicly
available.
    The Commission requests comment on these proposed standards of
review for granting or denying registration in proposed Rule 15Fb2-
1(d).
    Q-46. Should the Commission consider using different standards of
review to grant conditional registration to SBS Entities who apply
before the Last Compliance Date than it uses for major security-based
swap participants that apply for conditional registration after the
Last Compliance Date?
    Q-47. Would the standard requiring denial of an application if the
applicant is subject to statutory disqualification cause undue hardship
for any possible applicants? If so, how many applicants are likely to
be affected? Should this standard be refined or eliminated? If
applicants subject to statutory disqualification should be allowed to
register, should they be subject to any additional requirements? Please
explain.
    Q-48. Should the Commission consider broader or more limited
standards for granting or denying conditional registration? If so,
please describe the standard that should be used and the reasons why it
would be more appropriate than the standard proposed.
    Q-49. Should the Commission consider using a different standard of
review to grant ongoing registration?
    Q-50. Should the Commission consider broader or more limited
standards for granting or denying ongoing registration? If so, please
describe the standard that should be used for granting or denying
ongoing registration and the reasons why it would be more appropriate
than the standard proposed.
    Q-51. Should the Commission staff base its decision only on a
review of a firm's application (including any additional documents) and
certification or should an on-site examination or some other type of
review be considered? If so, what would be the appropriate scope and
timing of such a review?
    Q-52. Is there a need to lengthen or shorten the proposed
timeframes provided for the effectiveness of conditional registration
in paragraph (d)(1)? If so, how long should they be?
    Q-53. Should the Commission provide additional guidance regarding
the process for institution of proceedings? For instance, should the
Commission include timeframes within which proceedings would be
instituted and/or a decision to grant or deny registration based on
those proceedings should be provided (e.g., Exchange Act Section
15(b)(1))? If so, what timeframes or other guidance and why?
v. Request for Comment on Additional Registration Considerations
    The Commission requests comment on what, if any, alternative
approaches should be considered to meet the Commission's regulatory
objectives in the registration process for SBS Entities and how any
such alternative approaches would compare to the current proposal.\51\
Any such comparison should describe the relative advantages and
disadvantages of each alternative, as well as their relative costs and
benefits.
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    \51\ As described in footnote 12 above, the Commission is
presently reviewing the various standards and processes it uses to
facilitate registration, and we would expect that any alternative
processes suggested by commenters here would inform that review.
---------------------------------------------------------------------------

    Q-54. Should the Commission not adopt a Senior Officer
Certification requirement, and instead seek to satisfy itself during
the registration process, based on documents the SBS Entity may be able
to provide to the Commission, that the SBS Entity has the operational,
financial, and/or compliance capabilities to act as an SBS Dealer or
major security-based swap participant, as applicable? What would be the
advantages and disadvantages and the costs and benefits of such an
alternative process?
    Q-55. If the Commission determines to satisfy itself during the
registration process, based on documents the SBS Entity may be able to
provide to the Commission, that the SBS Entity has the operational,
financial, and/or compliance capabilities to act as an SBS Dealer or
major security-based swap participant, as applicable, should the
Commission identify which documents or categories of documents should
be submitted in order to facilitate its review and/or decision? If so,
what types of documents (e.g., business plan, written procedures, or
annual audit statements) should the Commission identify to facilitate
this review and what would be the costs of obtaining or providing such
documents?
    Q-56. Should the Commission not adopt a Senior Officer
Certification requirement, and instead require that an SBS Entity
obtain and submit to the Commission an independent third-party review
of its operational, financial, and compliance capabilities or its
written policies and procedures before granting ongoing registration?
What practical considerations--e.g., identifying an appropriate
independent third party, measuring the time, cost, and reliability of
any such review, addressing the types of information to be shared with
a third party and the factors to be considered in its review--would
inform whether such a review would be appropriate? What would be the
advantages and disadvantages and costs and benefits of requiring a
third-party review instead of the Senior Officer Certification?
    Q-57. Should the Commission adopt a Senior Officer Certification
requirement, and also require that an SBS Entity employ a third party
to independently review its capabilities to provide a basis for that
Senior Officer Certification? What would be the advantages and
disadvantages and costs and benefits of having an SBS Entity's
capabilities independently reviewed? If such a review were required,
who could perform such a review, what would such review entail, and
should the review be submitted to the Commission along with the
certification? What would be the comparative advantages, disadvantages,
costs and/or benefits of requiring dealers and participants to have
their capabilities independently reviewed?
    Q-58. If the Commission required that SBS Entities obtain and
submit an independent third-party review, what types of entities could
perform such a review (e.g., accountants, law firms, consulting firms)
and what independence standards should apply for purposes of conducting
the review? Could a review or examination by another governmental
agency (e.g., the Federal Reserve Board, the CFTC, the Office of the
Comptroller of the Currency) or an SRO constitute an independent third
party review for these purposes? If not, why? Are there any practical
or legal impediments to obtaining or providing to the Commission a
review from a third party

or a governmental agency or an SRO? If so, could these be addressed by
contract or otherwise?
    Q-59. Are there any other forms of oversight that could or should
reinforce or replace the proposed Senior Officer Certification? What
would be the comparative advantages, disadvantages, costs and/or
benefits of such an approach?
    Q-60. Are there other approaches to registration the Commission
should consider that, in a cost-effective manner, would both fulfill
the statutory mandate to protect investors, maintain fair, orderly, and
efficient markets, facilitate capital formation, and ensure that the
security-based swap market smoothly transitions from a generally
unregulated marketplace to one that is regulated and subject to
appropriate oversight? If so, please explain which ones and why.
    Q-61. If the Commission were to consider an approach to
registration that required something other than a Senior Officer
Certification, would SBS Entities need more time to gather, obtain, or
submit any documents, third party review, or other items than we have
proposed for submission of the Senior Officer Certification (i.e., on
or before the Last Compliance Date or, for participants that apply
after the Last Compliance Date, within four months after it files its
completed application)? If so why or why not?
    In the Intermediary Definitions Release,\52\ the Commission
acknowledged that the statutory definitions include a provision stating
that a person may be designated as a dealer for one or more types,
classes or categories of security-based swaps, or activities. Further,
that release indicated that one commenter stated that the Commissions
should allow a person to register as a swap dealer or SBS Dealer for
only a limited set of types, classes or categories of swaps or
security-based swaps.
---------------------------------------------------------------------------

    \52\ Intermediary Definitions Release, supra note 5, at 80182.
---------------------------------------------------------------------------

    Q-62. Should the registration process be expanded in any way to
allow firms to choose whether they register in a ``full'' or
``limited'' capacity? If so, how?
    Q-63. What additional information should be elicited by the
proposed forms to provide the Commission with sufficient information to
determine whether limited (as opposed to full) registration is
appropriate? Should there be separate forms for firms to apply for
limited, as opposed to full, registration? Should there instead be a
separate schedule to the forms as proposed? Should the timing differ
and, if so, how and why?
    Q-64. Should an applicant for limited registration be required to
provide the Commission with a different senior officer or other
certification? If so, how should the certification differ?
    Q-65. Should the Commission apply a different standard of review
when considering whether to grant or deny limited registration to an
applicant? If so, which one and why?
    Q-66. If the Commission were to grant an SBS Entity's application
for limited registration and the SBS Entity later determined that it
would prefer to be fully registered, how should this transition be
effected?

Please provide as much detail as possible in commenting on which of the
above referenced courses of action should be pursued. Please also
provide information regarding possible costs or benefits of each of
these alternatives.

2. Amendments to Application Forms: Proposed Rule 15Fb2-3
    Proposed Rule 15Fb2-3 would require an SBS Entity to promptly \53\
amend its Form SBSE, Form SBSE-A, Form SBSE-BD, as applicable, to
correct any information it determines is, or has become, inaccurate for
any reason.\54\ The Commission preliminarily believes this proposed
Rule is necessary in order for it to have access to accurate
information as part of its ongoing oversight of SBS Entities.
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    \53\ For purposes of Rule 15b3-1, the Commission has interpreted
the term ``promptly'' to mean within 30 days. (In the Matter of
First Guarantor Securities, Inc., Exchange Act Release No. 32725, 51
S.E.C. 612 (Aug. 6, 1993), which states, ``Absent extraordinary
circumstances, an amendment to Form BD filed beyond thirty days from
the change in information cannot be considered `promptly' filed in
accordance with Rule 15b3-1.'') We preliminarily believe this
standard is also appropriate with respect to the use of this term in
proposed Rule 15Fb2-3.
    \54\ This proposed rule is based on Exchange Act Rule 15b3-1,
which is applicable to registered brokers and dealers and has worked
well to assure that broker-dealers promptly amend their
applications.
---------------------------------------------------------------------------

    The Commission requests comment on all aspects of proposed Rule
15Fb2-3.
    Q-67. Should the Commission only require SBS Entities to promptly
update their Forms SBSE, SBSE-A, and SBSE-BD when they become
``materially'' inaccurate?
    Q-68. Should SBS Entities instead be required to periodically
update these forms and, if so, what would be an appropriate timeframe
for updating (e.g., monthly, quarterly, annually)? What may be the
comparative costs and benefits of periodic updating vs. ``prompt''
updating?
    Q-69. If the Commission requires SBS Entities to promptly update
their Forms SBSE, SBSE-A, and SBSE-BD when they become materially
inaccurate, should it also require that all information on the forms be
updated periodically?
    Q-70. Would it be appropriate for the Commission to require that
certain information be updated more frequently than other information?
If so, please describe what information should be subject to more
frequent updates and why, and the frequency with which each such item
should be updated.

B. Associated Persons

1. Certification
    Paragraph (b)(6) of Exchange Act Section 15F generally prohibits
SBS Entities from permitting any of their associated persons \55\ who
are subject to a ``statutory disqualification'' (as defined in Exchange
Act Section 3(a)(39)) to effect or be involved in effecting \56\
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. To provide SBS Entities with a mechanism to
assess their compliance with this provision, paragraph (a) of proposed
Rule 15Fb6-1 would require that an SBS Entity certify, on Schedule G of
Form SBSE, Form SBSE-A, or Form SBSE-BD, as appropriate, that no person
associated with it who effects or is involved in effecting security-
based swaps on its behalf is subject to statutory disqualification, as
defined in Section 3(a)(39) of the Exchange Act.\57\ If an associated
person later becomes

statutorily disqualified, the SBS Entity would need to ensure that the
associated person does not continue to effect or be involved in
effecting security-based swaps on the SBS Entity's behalf and/or
promptly amend its Schedule G in accordance with proposed Rule 15Fb2-3.
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    \55\ 15 U.S.C. 78c(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. However, it generally excludes persons whose functions
are solely clerical or ministerial.
    \56\ The Commission believes that associated persons ``involved
in effecting'' security-based swaps would include, but not be
limited to, persons involved in drafting and negotiating master
agreements and confirmations, persons recommending security-based
swap transactions to counterparties, persons on a trading desk
actively involved in effecting security-based swap transactions,
persons pricing security-based swap positions and managing
collateral for the SBS Entity, and persons assuring that the SBS
Entity's security-based swap business operates in compliance with
applicable regulations. In short, the term would encompass persons
engaged in functions necessary to facilitate the SBS Entity's
security-based swap business.
    \57\ Proposed Rule 15Fb1-1(b), described below, would require
each SBS Entity to maintain a manually signed copy of this
certification as part of its books and records until at least three
years after the certification has been replaced or is no longer
effective.
---------------------------------------------------------------------------

    To support this certification requirement, paragraph (b) of
proposed Rule 15Fb6-1 would require SBS Entities to obtain a
questionnaire or application for employment executed by each of its
associated persons that effect or are involved in effecting security-
based swaps on its behalf; such questionnaire or application would
serve as a basis for a background check of the associated person to
determine whether the associated person is statutorily disqualified.
The questionnaires or applications would be required to contain, at a
minimum, the following information: (1) The associated person's name,
address, social security number, Central Registration Depository
(``CRD'') number (if any), Investment Adviser Registration Depository
(``IARD'') number (if any), and the starting date of the associated
person's employment or other association with the SBS Entity; (2) the
associated person's date of birth; (3) a complete, consecutive
statement of all the associated person's business connections for at
least the preceding ten years, including whether the employment was
part-time or full-time; (4) a record of any denial of membership or
registration, and of any disciplinary action taken, or sanction
imposed, upon the associated person by any federal or state agency, by
any national securities exchange or national securities association, or
by a foreign financial regulatory authority including any finding that
the associated person was a cause of any disciplinary action or had
violated any law; (5) a record of any denial, suspension, expulsion or
revocation of membership or registration of any broker, dealer, SBS
Dealer, or major security-based swap participant with which the
associated person was associated in any capacity when such action was
taken; (6) a record of any permanent or temporary injunction entered
against the associated person or any broker, dealer, SBS Dealer, or
major security-based swap participant with which the associated person
was associated in any capacity at the time such injunction was entered;
(7) a record of any arrest or indictment for any felony, or any
misdemeanor pertaining to securities (including security-based swaps),
futures or commodities (including swaps), banking, insurance or real
estate (including, but not limited to, acting or being associated with
a broker-dealer, investment company, investment adviser, futures
sponsor, bank, or savings and loan association), fraud, false
statements or omissions, wrongful taking of property or bribery,
forgery, counterfeiting or extortion, and the disposition of the
foregoing; and (8) a record of any other name or names by which the
associated person has been known or which the associated person has
used.
    The Commission believes that it is standard in the financial
services industry for firms to request this information on employment
questionnaires. This information is similar to the information
identified in Exchange Act Rule 17a-3(a)(12)(i) and required to be
collected by broker-dealers with respect to their associated persons.
Additionally, Form U-4 contains all the information needed pursuant to
Exchange Act Rule 17a-3(a)(12)(i) and would fulfill the requirement to
obtain a questionnaire or application specified in Rule 15Fb6-1(b).
Rule 17a-3(a)(12)(i) and Form U-4 provide broker-dealers with
information through which they can perform background checks on
associated persons necessary to assure that those associated persons
are not subject to statutory disqualification. Moreover, the NFA
collects similar data on associated persons of its members through the
Form 8-R. Consequently, we preliminarily believe it would be
appropriate for SBS Entities to collect this information on associated
persons to allow them to conduct background checks so that they can
comply with the prohibition in Section 15F(b)(6) of the Exchange Act
from allowing statutorily disqualified individuals to effect or be
involved in effecting SBS transactions on their behalf.
    In addition, paragraph (b) of proposed Rule 15Fb6-1 would require
that the SBS Entity's chief compliance officer (``CCO'') (appointed in
accordance with Exchange Act Section 15F(k)), or his or her designee,
review and sign each questionnaire or application.\58\ This provision
is designed to help ensure that due regard is being paid to this
requirement to collect information on employees and to help ensure that
none of the SBS Entity's employees who effect or are involved in
effecting security-based swaps on the SBS Entity's behalf is subject to
statutory disqualification. Moreover, to the extent the SBS Entity's
CCO, or his or her designee, must sign the certification, this
requirement helps ensure that the CCO is aware of this statutory
prohibition and is familiar with the SBS Entity's procedures to comply
with it.
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    \58\ Applicants may already have this information on their
employees, but may not have a CCO, as required pursuant to new
Section 15F(k) of the Act, until the effective date of rules the
Commission may promulgate under Section 15F(k). Security-based swap
dealers and major security-based swap participants could be
conditionally registered even if a CCO has not signed each
associated person's questionnaire or application.
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    Finally, paragraph (c) of proposed paragraph 15Fb6-1 would require
that each SBS Entity maintain the questionnaires and applications for
employment obtained pursuant to paragraph (b) as part of its books and
records for at least three years after the associated person has
terminated his or her association with the SBS Entity. It is likely
that SBS Entities would retain these records for business purposes;
however, this requirement will assure that the questionnaires and
applications are available to the Commission during inspections and
examinations.
    The Commission requests comment on proposed Rule 15Fb6-1.
    Q-71. Would the information regarding associated persons in
paragraph (b) of the proposed rule be sufficient for a CCO to make the
required certification? Why or why not?
    Q-72. Should the information requirements in paragraph (b) be
modified in any way?
    Q-73. Should applicants be required to obtain any additional
information not specified in proposed paragraph (b)?
    Q-74. Should the Commission require that SBS Entities perform
background checks on their employees (e.g., to confirm that their
associated persons do not have a criminal history) in addition to
obtaining questionnaires or applications? Why or why not?
    Q-75. If not, what other process could the Commission use to help
ensure that an applicant is not violating Exchange Act Section
15F(b)(6)?
    Q-76. Should the Commission require applicants to require credit
checks on associated persons? Why or why not?
    Q-77. What, if any, practical or legal limitations or barriers
exist that would hinder an applicant from obtaining background or
credit checks?
    Q-78. Should the Commission require applicants to obtain and
process fingerprints of their associated persons that will be effecting
or involved in effecting security-based swaps on the applicant's
behalf? Why or why not?
    Q-79. What, if any, practical or legal limitations or barriers
exist that would hinder an applicant from obtaining or running
fingerprints of associated persons?

    Q-80. Should the Commission instead treat the provisions of Section
15F(b)(6) as essentially self-executing and permit SBS Entities to
determine how best to screen associated persons to ensure they are not
subject to a statutory disqualification (provided that they exercise
reasonable care in so doing) and require that an SBS Entity create and
maintain reasonable policies and procedures for determining whether an
associated person is subject to a statutory disqualification? Why or
why not?
    Q-81. What would be the benefits and risks of this approach?
    Q-82. Would this approach be more or less burdensome for SBS
Entities to administer?
    Q-83. Would SBS Entities nevertheless implement an approach similar
to that required under the proposed rule?
    Q-84. How might an SBS Entity comply with Section 15F(b)(6) in ways
that differ from what is set forth in the proposed rule?
    Q-85. Would this alternative policies and procedures approach
provide SBS Entities sufficient legal certainty about whether they have
properly complied with Section 15F(b)(6)?
    Q-86. Should the Commission require that associated persons of SBS
Entities that effect or are involved in effecting security-based swaps
on behalf of the SBS Entity register directly with it? What would be
the costs or benefits involved with registration of such SBS Entity
associated persons? What, if any, practical or legal limitations or
barriers exist to this approach?
    Q-87. Are there other approaches to implementing Section 15F(b)(6)
that the Commission should consider? Please explain.
    Q-88. Should the Commission take a different view regarding which
associated persons should be considered to be ``involved in effecting''
security-based swaps on behalf of the SBS Entity (see footnote 34)? If
so, should additional categories of associated persons be included or
should certain identified categories of associated persons be excluded?
For what reason(s)?
2. Alternative Process
    Section 15F(b)(6) expressly authorizes the Commission to establish
exceptions to this prohibition by rule, regulation, or order.\59\ This
authority is similar to authority provided to the Commission with
respect to the ``traditional'' securities industry, i.e., the industry
regulated under the Exchange Act prior to the Dodd-Frank Act
amendments. This existing Exchange Act authority permits SROs, subject
to Commission review, to allow, among other things, a person subject to
a statutory disqualification to associate with a broker-dealer.\60\
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    \59\ 15 U.S.C. 78o-10(b)(6).
    \60\ When such a person seeks admission to or continuance in
membership or association, the Commission and the SRO have the
opportunity to give special review to such person and to restrict or
prevent entry into, or continuance in, the business where
appropriate in the public interest and for the protection of
investors. See Senate Comm. on Banking, Housing, and Urban Affairs,
The Securities Act Amendments of 1989, S. Rep. No. 101-105, at 39
(1989); Provision for Notices by Self-Regulatory Organizations of
Stays of Such Actions; Appeals; and Admissions to Membership or
Association of Disqualified Persons, 42 FR 36409 (Jul. 14, 1977)
(adopting rule 19h-1 under the Exchange Act, 17 CFR 240.19h-1, and
providing rules for process of filing notices, content of notices,
and Commission determination).
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    Similarly, Commission Rule 193 (Applications by Barred Individuals
for Consent to Associate) provides a process by which persons that are
not regulated by a SRO (e.g., employees of an investment adviser, an
investment company, or a transfer agent) can seek to reenter the
traditional securities industry despite previously being barred by the
Commission.\61\
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    \61\ 17 CFR 201.193.
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    The Commission requests comment on whether it should develop an
alternative process to allow associated persons of SBS Entities who are
subject to a statutory disqualification to effect or be involved in
effecting security-based swaps on their behalf.
    Q-89. How many SBS Entities and associated persons thereof are
likely to be affected if the Commission does not provide an exemptive
process?
    Q-90. Is it possible that an associated person that is an entity
(i.e., not a natural person) that effects or is involved in effecting
security-based swaps on behalf of an SBS Entity would be subject to a
statutory disqualification? If so, should the Commission consider
excepting any such persons from the prohibition in Section 15F(b)(6)?
Under what circumstances and why?
    Q-91. Should the Commission except such persons globally (e.g., by
a blanket rule) or on an individual basis (e.g., via a Rule 193-type
process)? What would be the possible costs or benefits of each?
    Q-92. Are there certain statutorily disqualified persons who should
not be permitted to remain associated with an SBS Dealer or major
security-based swap participant based upon the nature of the
disqualification?
    Q-93. Should there be any differentiation in relief based upon the
nature of the person, e.g. a natural person or an entity? If so, what
type of differentiation and why?

C. Termination of Registration

1. Expiration: Proposed Rule 15Fb3-1
    Exchange Act Section 15F(b)(3) provides that ``each registration
under this section shall expire at such time as the Commission may
prescribe by rule or regulation.'' Although there is no Exchange Act
parallel, this provision is similar to Commodity Exchange Act Section
6f(a)(1), which provides that ``each registration shall expire on
December 31 of the year for which issued or at such other time, not
less than one year from the date of issuance, as the Commission may by
rule, regulation, or order prescribe. * * *'' CFTC Rule 3.10(b)
provides, among other things, that persons registered with the CFTC
pursuant to CFTC Rule 3.10 ``will continue to be so registered until
the effective date of any revocation or withdrawal of such
registration.'' Paragraph (a) of proposed Rule 15Fb3-1 would establish
the same continuous registration as is set forth in CFTC Rule 3.10(b),
and would provide that registered SBS Entities would ``continue to be
so registered until the effective date of any cancellation, revocation
or withdrawal of such registration or any other event the Commission
determines should trigger expiration.''
    Q-94. Does CFTC Rule 3.10(b) provide an appropriate model to
implement Exchange Act Section 15F(b)(3)? Why or why not?
    Q-95. Should the Commission instead allow initial SBS Entity
registrations to expire and require SBS Entities to re-register to
become an ongoing registrant (while providing a grace period for this
re-registration to occur)? If so, what would be an appropriate amount
of time before expiration (e.g., one year, two years, five years, or
some other time period)?
    Q-96. Alternatively, should the Commission allow SBS Entity
registrations to expire periodically and require SBS Entities to re-
register periodically (i.e., requiring registrants to ``re-up''
indefinitely on a regular basis)? If so, what would be an appropriate
amount of time before expiration (e.g., annually, every two years,
every five years, or some other time period)? What would be the
advantages, disadvantages, costs and benefits of such an approach?
    Q-97. Via what mechanism should any such re-registration be
facilitated? For instance, should an SBS Entity be required to re-apply
by filing a new application? Alternatively, should an SBS Entity be
required to re-certify by filing a new Senior Officer Certification?

Would some other mechanism be more appropriate? How should any such
mechanism take into account the initial application and registration of
an SBS Entity? How should any such mechanism take into account the SBS
Entity's compliance with applicable rules during the period prior to
the re-registration? Would any type of non-compliance during such
period justify denial of re-registration, or should the nature of the
non-compliance and any remedial actions be taken into account?
    Q-98. If re-registration is facilitated by re-certification, would
the proposed form of Senior Officer Certification on Form SBSE-C be the
appropriate or would some other form or language be more appropriate?
For instance, should any re-certification for SBS Entities be drafted
to more closely follow the certification requirement proposed for
municipal advisors (wherein each municipal advisor certifies annually
that it has met its regulatory obligations over the prior period)?
    Q-99. If periodic re-registration were required, should re-
registration be based on an SBS Entity's original registration date or
should it be triggered by a calendar date (e.g., on December 31)?
    Q-100. Should the same standard of review that applies to ongoing
registration apply in the context of re-registration (see proposed rule
15Fb2-1(d)(2))? If not, what alternative standard of review would be
more appropriate and why?
    Q-101. Would any such expiration and re-registration requirement
provide the Commission with a greater ability to enforce compliance
with applicable regulations? Why or why not?
    As discussed in Part I above, under paragraph (b)(1) of proposed
Rule 15Fb3-1, conditional registrations granted by the Commission to an
SBS Entity that applies for registration during the transitional period
in accordance with Rule 15Fb2-1(b) would expire on the Last Compliance
Date, unless the SBS Entity files a Senior Officer Certification with
the Commission or its designee on or before the Last Compliance Date;
in which case its conditional registration would be extended for an
additional thirty days (which should allow the Commission staff
sufficient time to review the SBS Entity's application and
certification and determine whether to grant or deny ongoing
registration). Paragraph (b)(2) of proposed Rule 15Fb3-1 would provide
that conditional registrations granted by the Commission to major
security-based swap participants that file applications for
registration after the Last Compliance Date would expire four months
after the major security-based swap participant files its completed
application with the Commission unless the major security-based swap
participant files a Senior Officer Certification with the Commission or
its designee within that four month period; in which case its
conditional registration would be extended for an additional thirty
days. Pursuant to paragraph (c) of proposed Rule 15Fb3-1, the
Commission could extend conditional registration for good cause.
    Q-102. Would these timeframes be sufficient to allow conditional
registrants to complete--and the Commission to grant or deny--ongoing
registration? Why or why not?
    Q-103. What circumstances should the Commission consider in
determining whether good cause exists to extend an SBS Entity's
conditional registration? Why? Should these circumstances include
situations in which the Commission may need additional time to review
an SBS Entity's application and certification? Why or why not?
    Q-104. Should the Commission require that an SBS Entity follow a
particular process to request an extension of the SBS Entity's
conditional registration? For instance, should an SBS Entity be
required to submit a letter requesting an extension and setting forth
the reasons why an extension is necessary? If so, what process would be
appropriate and why?
2. Withdrawal: Proposed Rule 15Fb3-2
    Proposed Rule 15Fb3-2 would provide a process by which an SBS
Entity could withdraw from registration with the Commission.\62\ The
proposed rule would require an SBS Entity to file a notice of
withdrawal from registration electronically on Form SBSE-W (described
in more detail below) in accordance with the instructions to the Form.
It also would require that an SBS Entity amend its Form SBSE, Form
SBSE-A, or Form SBSE-BD, as appropriate, in accordance with proposed
Rule 15Fb2-3 to update any inaccurate information prior to filing its
notice of withdrawal from registration.
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    \62\ This provision is similar to Exchange Act Rule 15b6-1,
which has historically worked well to facilitate broker-dealer
withdrawals.
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    Paragraph (b) of proposed Rule 15Fb3-2 would provide that a notice
of withdrawal from registration filed by an SBS Entity would generally
become effective on the 60th day after the SBS Entity files Form SBSE-
W. However, based on its experience with registered broker-dealers, the
Commission recognizes that there may be circumstances in which it would
be advisable to provide flexibility in scheduling the termination of
business operations to registered entities seeking to withdraw from
registration. Further, the Commission may determine that it would be
appropriate for a registered entity that is under investigation by the
Commission to maintain its registered status in order to allow the
Commission to conclude a pending investigation without prematurely
instituting a proceeding to impose conditions on the registered
entity's withdrawal. In such instances, it may better serve the
interests of all parties to have the registered entity consent to an
extension of the effective date of the registered entity's withdrawal
from registration beyond the general 60-day period provided for in the
proposed rule. It also may be appropriate to permit the Commission to
extend the effective date for a period if it determines, by order, that
it is necessary or appropriate in the public interest or for the
protection of investors.
    Thus, paragraph (b) of proposed Rule 15Fb3-2 would identify
specific situations in which notices of withdrawal from registration
will not become effective on the 60th day. These would include
situations where (1) The Commission determines that a shorter period is
appropriate, (2) the SBS Entity consents to a longer period, (3) the
Commission, by order, determines that a longer period is necessary or
appropriate in the public interest or for the protection of investors,
and (4) the Form SBSE-W is filed subsequent to the date of the issuance
of a Commission order instituting proceedings to censure, place
limitations on the activities, functions or operations of, or suspend
or revoke the registration of the SBS Entity. Finally, paragraph (b) of
proposed Rule 15Fb3-2 would provide that if the Commission institutes
proceedings prior to the effective date of Form SBSE-W (1) To censure,
place limitations on the activities, functions or operations of, or
suspend or revoke the registration of the SBS Entity, or (2) to impose
terms or conditions upon the SBS Entity's withdrawal, the notice of
withdrawal shall not become effective except at such time and upon such
terms and conditions as the Commission deems necessary or appropriate
in the public interest or for the protection of investors.
    The Commission requests comment on all aspects of proposed Rule
15Fb3-2.
    Q-105. Would the proposed withdrawal process be workable for SBS
Entities? Are the proposed timeframes reasonable for these entities?
Why or why not?

    Q-106. Under what other circumstances, if any, should the
Commission shorten or lengthen the timeframe for withdrawal?
3. Cancellation and Revocation: Proposed Rule 15Fb3-3
    Proposed Rule 15Fb3-3 would provide the Commission with the ability
to either cancel or revoke a registered SBS Entity's registration. More
specifically, paragraph (a) of proposed Rule 15Fb3-3 would allow the
Commission to cancel an SBS Entity's registration if the Commission
finds that it is no longer in existence or has ceased to do business as
an SBS Entity.\63\ The cancellation process outlined in paragraph (a)
is intended to be ministerial in nature, and not a means to revoke
without due process the registration of an SBS Entity that may have
violated federal securities laws. This provision is designed to help
the Commission allocate its examination and other resources to entities
that are actively engaged in business regulated by the Commission.
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    \63\ This provision is similar to Exchange Act Section 15(b)(5).
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