The SEC Division of Trading and Markets (the "Division") granted no-action relief to security-based swap dealers ("SBSDs") from certain initial margin requirements for security-based swaps ("SBS") under SEA Rule 18a-3(c)(1)(ii)(B) ("Margin Requirements"). The no-action relief was a response to a request from ISDA and SIFMA.
The relief provides that the Division will not recommend enforcement action if an SBSD does not collect initial margin from certain counterparties in connection with an uncleared SBS entered into prior to September 1, 2022. In particular, the relief applies to any counterparty, referred to as a "Phase 6+ Counterparty," that, collectively with its affiliates, had a daily average aggregate notional amount of $50 billion or less in uncleared swaps, uncleared SBS, foreign exchange ("FX") swaps and FX forwards in March, April and May of 2021. (The relief contains limited exceptions for certain inter-affiliate transactions and certain transactions excluded by statute from margin requirements.) The relief is conditioned on the SBSD making a record of the counterparties, and preserving the record for a period of not less than three years, the first two in an easily accessible place.
The Division explained that the differing compliance dates for the SEC (October 6, 2021) and for other regulators (September 1, 2022) create "significant unintended impact to . . . resources" as nonbank SBSDs simultaneously accelerate and complete preparations for Phase 6 and Phase 5 relationships.
Commentary by Nihal Patel
The relief is important, as it (1) limits competitive imbalances for firms subject to the SEC requirements versus those subject to rules imposed by other regulators and (2) limits the potential for repetitive documentation exercises for firms subject to rules of the SEC and other regulators.
Firms should note, however, that the relief does not extend to capital requirements imposed on SBSDs under SEC rules (in particular, 15c3-1 and 18a-1). Those SBSDs may still need to take capital charges for initial margin that is not collected. In addition, the relief will create a new diligence obligation in order to rely on the relief for SBSDs that expect to be subject to the SEC rules but not are not subject to other regulators' rules that use the average aggregated notional amount counting mechanism. Such SBSDs will need to reach out to counterparties to determine whether the relief is available.
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