The Security Exchange Commission has added an additional piece to its array of cross-border rules for security-based swaps (SBS). The new rule confirms that, consistent with the position taken by the Commodities Futures Trading Commission with respect to cross-border swaps, a non-US person must include in its de minimis calculations for security-based swap dealer registration any non-cleared “dealing” SBS it executes with a non-US-person counterparty if the swap is “arranged, negotiated or executed” by personnel of the non-US person located in a US branch or office or by agents of the non-US person located in a U.S. branch or office.

The compliance date for this rule provides a reminder of the overall time frame the SEC has in mind for completion of the full regulatory regime for security-based swaps. That compliance date is the later of (1) February 21, 2017, or (2) the SBS Entity Counting Date. The SBS Entity Counting Date is a date two-months prior to the Registration Compliance Date, which has been defined by the SEC as “the later of:

  • six months after the date of publication in the Federal Register of a final rule release adopting rules establishing capital, margin and segregation requirements for security-based swap dealers and major security-based swap participants (SBS Entities);
  • the compliance date of final rules establishing recordkeeping and reporting requirements for SBS Entities;
  • the compliance date of final rules establishing business conduct requirements under Exchange Act sections 15F(h) and 15F(k); or
  • the compliance date for final rules establishing a process for a registered SBS Entity to make an application to the Commission to permit an associated person who is subject to a statutory disqualification to effect or be involved in effecting security-based swaps on its behalf.”

The new rule is available here.