630 
‘‘(2) EXCEPTION FOR PRUDENTIAL REQUIRE-
MENTS.—The Commission and the Commodity Fu-
tures Trading Commission shall not prescribe rules 
imposing prudential requirements (including activity 
restrictions) on security-based swap dealers or major 
security-based swap participants for which there is a 
Prudential Regulator. This provision shall not be 
construed as limiting the authority of the Commis-
sion and the Commodity Futures Trading Commis-
sion to prescribe appropriate business conduct, re-
porting, and recordkeeping requirements to protect 
investors. 
‘‘(e) CAPITAL AND MARGIN REQUIREMENTS.— 
‘‘(1) IN GENERAL.— 
‘‘(A) BANK SECURITY-BASED SWAP DEAL-
ERS AND MAJOR SECURITY-BASED SWAP PAR-
TICIPANTS.—Each 
registered 
security-based 
swap dealer and major security-based swap par-
ticipant for which there is a Prudential Regu-
lator shall meet such minimum capital require-
ments and minimum margin requirements as 
the Prudential Regulators shall by rule or regu-
lation jointly prescribe to help ensure the safety 
and soundness of the security-based swap deal-
er or major security-based swap participant. 
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631 
‘‘(B) NONBANK
SECURITY-BASED
SWAP 
DEALERS
AND
MAJOR
SECURITY-BASED
SWAP 
PARTICIPANTS.—Each registered security-based 
swap dealer and major security-based swap par-
ticipant for which there is not a Prudential 
Regulator shall meet such minimum capital re-
quirements and minimum margin requirements 
as the Commission and the Commodity Futures 
Trading Commission shall by rule or regulation 
jointly prescribe to help ensure the safety and 
soundness of the security-based swap dealer or 
major security-based swap participant. 
‘‘(2) JOINT RULES.— 
‘‘(A) BANK SECURITY-BASED SWAP DEAL-
ERS AND MAJOR SECURITY-BASED SWAP PAR-
TICIPANTS.—Within 180 days of the enactment 
of the Over-the-Counter Derivatives Markets 
Act of 2009, the Prudential Regulators, in con-
sultation with the Commission and the Com-
modity Futures Trading Commission, shall 
jointly adopt rules imposing capital and margin 
requirements under this subsection for security- 
based swap dealers and major security-based 
swap participants. 
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632 
‘‘(B) NONBANK
SECURITY-BASED
SWAP 
DEALERS
AND
MAJOR
SECURITY-BASED
SWAP 
PARTICIPANTS.—Within 180 days of the enact-
ment of the Over-the-Counter Derivatives Mar-
kets Act of 2009, the Commission and the 
Commodity Futures Trading Commission, in 
consultation with the Prudential Regulators, 
shall jointly adopt rules imposing capital and 
margin requirements under this subsection for 
security-based swap dealers and major security- 
based swap participants for which there is no 
Prudential Regulator. 
‘‘(3) CAPITAL.— 
‘‘(A) BANK SECURITY-BASED SWAP DEAL-
ERS AND MAJOR SECURITY-BASED SWAP PAR-
TICIPANTS.—In setting capital requirements 
under this subsection, the Prudential Regu-
lators shall impose— 
‘‘(i) a capital requirement that is 
greater than zero for security-based swaps 
that are cleared by a clearing agency; and 
‘‘(ii) to offset the greater risk to the 
security-based swap dealer or major secu-
rity-based swap participant and to the fi-
nancial system arising from the use of se-
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633 
curity-based swaps that are not centrally 
cleared, higher capital requirements for se-
curity-based swaps that are not cleared by 
a clearing agency than for security-based 
swaps that are centrally cleared. 
‘‘(B) 
EXCLUSION.—Subparagraph 
(A) 
shall not apply to a security-based swap one 
party to which is not a security-based swap 
dealer or major security-based swap participant, 
and which is entered into before the end of the 
90-day period that begins with the effective 
date of this subparagraph. 
‘‘(C) NONBANK
SECURITY-BASED
SWAP 
DEALERS
AND
MAJOR
SECURITY-BASED
SWAP 
PARTICIPANTS.—Capital requirements set by 
the Commission and the Commodity Futures 
Trading Commission under this subsection shall 
be as strict as or stricter than the capital re-
quirements set by the Prudential Regulators 
under this subsection. 
‘‘(D) BANK
HOLDING
COMPANIES.—Cap-
ital requirements set by the Board for security- 
based swaps of bank holding companies on a 
consolidated basis shall be as strict as or strict-
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634 
er than the capital requirements set by the Pru-
dential Regulators under this subsection. 
‘‘(4) MARGIN.— 
‘‘(A) BANK SECURITY-BASED SWAP DEAL-
ERS AND MAJOR SECURITY-BASED SWAP PAR-
TICIPANTS.—The Prudential Regulators shall 
impose margin requirements under this sub-
section on all security-based swaps that are not 
cleared by a registered clearing agency. 
‘‘(B) NON-SWAP
DEALERS
AND
MAJOR 
MARKET PARTICIPANTS.—The Prudential Regu-
lators may, but are not required to, impose 
margin requirements with respect to security- 
based swaps in which one of the counterparties 
is not a swap dealer, major swap participant, 
security-based swap dealer or major security- 
based swap participant. Margin requirements 
for swaps set by the Commission and the Com-
modity Futures Trading Commission shall pro-
vide for the use of non-cash assets as collateral. 
‘‘(C) 
EXCLUSION.—Subparagraph 
(B) 
shall not apply to a security-based swap one 
party to which is not a security-based swap 
dealer or major security-based swap participant, 
and which is entered into before the end of the 
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635 
90-day period that begins with the effective 
date of this subparagraph. 
‘‘(D) NONBANK
SECURITY-BASED
SWAP 
DEALERS
AND
MAJOR
SECURITY-BASED
SWAP 
PARTICIPANTS.—Margin requirements for secu-
rity-based swaps set by the Commission and the 
Commodity Futures Trading Commission under 
this subsection shall be as strict as or stricter 
than margin requirements for security-based 
swaps set by the Prudential Regulators. 
‘‘(f) REPORTING AND RECORDKEEPING.— 
‘‘(1) IN GENERAL.—Each registered security- 
based swap dealer and major security-based swap 
participant— 
‘‘(A) shall make such reports as are pre-
scribed by the Commission by rule or regulation 
regarding the transactions and positions and fi-
nancial condition of such person; 
‘‘(B) for which— 
‘‘(i) there is a Prudential Regulator, 
shall keep books and records of all activi-
ties related to its business as a security- 
based swap dealer or major security-based 
swap participant in such form and manner 
and for such period as may be prescribed 
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636 
by the Commission by rule or regulation; 
or 
‘‘(ii) there is no Prudential Regulator, 
shall keep books and records in such form 
and manner and for such period as may be 
prescribed by the Commission by rule or 
regulation; 
‘‘(C) shall keep such books and records 
open to inspection and examination by any rep-
resentative of the Commission; and 
‘‘(D) shall keep any such books and 
records relating to transactions in swaps based 
on 1 or more securities open to inspection and 
examination by the Commission. 
‘‘(2) RULES.—Not later than 1 year after the 
date of enactment of the Over-the-Counter Deriva-
tives Markets Act of 2009, the Commission and the 
Commodity Futures Trading Commission, in con-
sultation with the appropriate Federal banking agen-
cies, shall jointly adopt rules governing reporting 
and recordkeeping for swap dealers, major swap par-
ticipants, security-based swap dealers and major se-
curity-based swap participants. 
‘‘(g) DAILY TRADING RECORDS.— 
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637 
‘‘(1) IN GENERAL.—Each registered security- 
based swap dealer and major security-based swap 
participant shall maintain daily trading records of 
its security-based swaps and all related records (in-
cluding related transactions) and recorded commu-
nications including but not limited to electronic mail, 
instant messages, and recordings of telephone calls, 
for such period as may be prescribed by the Com-
mission by rule or regulation. 
‘‘(2) INFORMATION REQUIREMENTS.—The daily 
trading records shall include such information as the 
Commission shall prescribe by rule or regulation. 
‘‘(3) CUSTOMER RECORDS.—Each registered se-
curity-based swap dealer or major security-based 
swap participant shall maintain daily trading records 
for each customer or counterparty in such manner 
and form as to be identifiable with each security- 
based swap transaction. 
‘‘(4) AUDIT TRAIL.—Each registered security- 
based swap dealer or major security-based swap par-
ticipant shall maintain a complete audit trail for 
conducting comprehensive and accurate trade recon-
structions. 
‘‘(5) RULES.—Not later than 1 year after the 
date of enactment of the Over-the-Counter Deriva-
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hsrobinson on DSK69SOYB1PROD with BILLS
638 
tives Markets Act of 2009, the Commission and the 
Commodity Futures Trading Commission, in con-
sultation with the appropriate Federal banking agen-
cies, shall jointly adopt rules governing daily trading 
records for swap dealers, major swap participants, 
security-based swap dealers, and major security- 
based swap participants. 
‘‘(h) BUSINESS CONDUCT STANDARDS.— 
‘‘(1) IN GENERAL.—Each registered security- 
based swap dealer and major security-based swap 
participant shall conform with business conduct 
standards as may be prescribed by the Commission 
by rule or regulation addressing— 
‘‘(A) fraud, manipulation, and other abu-
sive practices involving security-based swaps 
(including security-based swaps that are offered 
but not entered into); 
‘‘(B) diligent supervision of its business as 
a security-based swap dealer; 
‘‘(C) adherence to all applicable position 
limits; 
‘‘(D) the prevention of self-dealing by lim-
iting the extent to which a security-based swap 
dealer or major security-based swap participant 
may conduct business with a clearing agency, 
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639 
an exchange, or an alternative swap execution 
facility that clears or trades security-based 
swaps and in which such a dealer or participant 
has a material debt or equity investment; and 
‘‘(E) such other matters as the Commis-
sion shall determine to be necessary or appro-
priate. 
‘‘(2) BUSINESS
CONDUCT
REQUIREMENTS.— 
Business conduct requirements adopted by the Com-
mission shall— 
‘‘(A) establish the standard of care for a 
security-based swap dealer or major security- 
based swap participant to verify that any secu-
rity-based swap counterparty meets the eligi-
bility standards for an eligible contract partici-
pant; 
‘‘(B) require disclosure by the security- 
based swap dealer or major security-based swap 
participant to any counterparty to the security- 
based swap (other than a swap dealer, major 
swap participant, security-based swap dealer or 
major security-based swap participant) of— 
‘‘(i) information about the material 
risks and characteristics of the security- 
based swap; 
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640 
‘‘(ii) for cleared swaps, upon the re-
quest of the counterparty, the daily mark 
from the appropriate clearinghouse and for 
non-cleared swaps, upon the request of the 
counterparty, the daily mark of the secu-
rity-based swap dealer or major security- 
based swap participant; and 
‘‘(iii) any other material incentives or 
conflicts of interest that the security-based 
swap dealer or major security-based swap 
participant may have in connection with 
the security-based swap; and 
‘‘(C) establish such other standards and 
requirements as the Commission may determine 
are necessary or appropriate in the public inter-
est, for the protection of investors, or otherwise 
in furtherance of the purposes of this title. 
‘‘(3) RULES.—Not later than 1 year after the 
date of enactment of the Over-the-Counter Deriva-
tives Markets Act of 2009, the Commission and the 
Commodity Futures Trading Commission, in con-
sultation with the appropriate Federal banking agen-
cies, shall jointly prescribe rules under this sub-
section governing business conduct standards for 
swap dealers, major swap participants, security- 
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641 
based swap dealers, and major security-based swap 
participants. 
‘‘(i) DOCUMENTATION AND BACK OFFICE STAND-
ARDS.— 
‘‘(1) IN GENERAL.—Each registered security- 
based swap dealer and major security-based swap 
participant shall conform with standards, as may be 
prescribed by the Commission by rule or regulation, 
addressing timely and accurate confirmation, proc-
essing, netting, documentation, and valuation of all 
security-based swaps. 
‘‘(2) RULES.—Not later than 1 year after the 
date of enactment of the Over-the-Counter Deriva-
tives Markets Act of 2009, the Commission and the 
Commodity Futures Trading Commission, in con-
sultation with the appropriate Federal banking agen-
cies, shall jointly adopt rules governing documenta-
tion and back office standards for swap dealers, 
major swap participants, security-based swap deal-
ers, and major security-based swap participants. 
‘‘(j) DEALER RESPONSIBILITIES.—Each registered 
security-based swap dealer and major security-based swap 
participant at all times shall comply with the following re-
quirements: 
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642 
‘‘(1) MONITORING OF TRADING.—The security- 
based swap dealer or major security-based swap par-
ticipant shall monitor its trading in security-based 
swaps to prevent violations of applicable position 
limits. 
‘‘(2) DISCLOSURE
OF
GENERAL
INFORMA-
TION.—The security-based swap dealer or major se-
curity-based swap participant shall disclose to the 
Commission and to the Prudential Regulator for 
such security-based swap dealer or major security- 
based swap participant, as applicable, information 
concerning— 
‘‘(A) terms and conditions of its security- 
based swaps; 
‘‘(B) security-based swap trading oper-
ations, mechanisms, and practices; 
‘‘(C) financial integrity protections relating 
to security-based swaps; and 
‘‘(D) other information relevant to its trad-
ing in security-based swaps. 
‘‘(3) ABILITY TO OBTAIN INFORMATION.—The 
security-based swap dealer or major swap security- 
based participant shall— 
‘‘(A) establish and enforce internal systems 
and procedures to obtain any necessary infor-
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643 
mation to perform any of the functions de-
scribed in this section; and 
‘‘(B) provide the information to the Com-
mission and to the Prudential Regulator for 
such security-based swap dealer or major secu-
rity-based swap participant, as applicable, upon 
request. 
‘‘(4) CONFLICTS OF INTEREST.—The security- 
based swap dealer and major security-based swap 
participant shall implement conflict-of-interest sys-
tems and procedures that— 
‘‘(A) establish structural and institutional 
safeguards to assure that the activities of any 
person within the firm relating to research or 
analysis of the price or market for any security 
are separated by appropriate informational par-
titions within the firm from the review, pres-
sure, or oversight of those whose involvement in 
trading or clearing activities might potentially 
bias their judgment or supervision; and 
‘‘(B) address such other issues as the 
Commission determines appropriate. 
‘‘(5) 
ANTITRUST
CONSIDERATIONS.—Unless 
necessary or appropriate to achieve the purposes of 
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hsrobinson on DSK69SOYB1PROD with BILLS
644 
this Act, the security-based swap dealer or major se-
curity-based swap participant shall avoid— 
‘‘(A) adopting any processes or taking any 
actions that result in any unreasonable re-
straints of trade; or 
‘‘(B) imposing any material anticompeti-
tive burden on trading. 
‘‘(k) RULES.—The Commission, the Commodity Fu-
tures Trading Commission, and the Prudential Regulators 
shall consult with each other prior to adopting any rules 
under the Over-the-Counter Derivatives Markets Act of 
2009. 
‘‘(l) STATUTORY DISQUALIFICATION.—Except to the 
extent otherwise specifically provided by rule, regulation, 
or order of the Commission, it shall be unlawful for a secu-
rity-based swap dealer or a major security-based swap par-
ticipant to permit any person associated with a security- 
based swap dealer or a major security-based swap partici-
pant who is subject to a statutory disqualification to effect 
or be involved in effecting security-based swaps on behalf 
of such security-based swap dealer or major security-based 
swap participant, if such security-based swap dealer or 
major security-based swap participant knew, or in the ex-
ercise of reasonable care should have known, of such stat-
utory disqualification. 
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645 
‘‘(m) ENFORCEMENT
AND ADMINISTRATIVE PRO-
CEEDING AUTHORITY.— 
‘‘(1) PRIMARY ENFORCEMENT AUTHORITY.— 
‘‘(A) SEC.—Except as provided in sub-
section (b), the Commission shall have primary 
authority to enforce the provisions of the 
amendments made by subtitle B of the Over- 
the-Counter Derivatives Markets Act of 2009 
with respect to any person. 
‘‘(B) 
PRUDENTIAL
REGULATORS.—The 
Prudential Regulators shall have exclusive au-
thority to enforce the provisions of subsection 
(e) and other prudential requirements of this 
Act with respect to banks, and branches or 
agencies of foreign banks that are security- 
based swap dealers or major security-based 
swap participants. 
‘‘(C) REFERRAL.—If the Prudential Regu-
lator for a security-based swap dealer or major 
security-based swap participant has cause to be-
lieve that such security-based swap dealer or 
major security-based swap participant may have 
engaged in conduct that constitutes a violation 
of the nonprudential requirements of section 
15F or rules adopted by the Commission there-
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646 
under, that Prudential Regulator may rec-
ommend in writing to the Commission that the 
Commission initiate an enforcement proceeding 
as authorized under this Act. The recommenda-
tion shall be accompanied by a written expla-
nation of the concerns giving rise to the rec-
ommendation. 
‘‘(D) BACKSTOP ENFORCEMENT AUTHOR-
ITY.—If the Commission does not initiate an 
enforcement proceeding before the end of the 
90 day period beginning on the date on which 
the Commission receives a recommendation 
under subparagraph (C), the Prudential Regu-
lator may initiate an enforcement proceeding as 
permitted under Federal law. 
‘‘(2) CENSURE, DENIAL, SUSPENSION; NOTICE 
AND
HEARING.—The Commission, by order, shall 
censure, place limitations on the activities, functions, 
or operations of, or revoke the registration of any se-
curity-based swap dealer or major security-based 
swap participant that has registered with the Com-
mission pursuant to subsection (b) if it finds, on the 
record after notice and opportunity for hearing, that 
such censure, placing of limitations, or revocation is 
in the public interest and that such security-based 
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647 
swap dealer or major security-based swap partici-
pant, or any person associated with such security- 
based swap dealer or major security-based swap par-
ticipant effecting or involved in effecting trans-
actions in security-based swaps on behalf of such se-
curity-based swap dealer or major security-based 
swap participant, whether prior or subsequent to be-
coming so associated— 
‘‘(A) has committed or omitted any act, or 
is subject to an order or finding, enumerated in 
subparagraph (A), (D), or (E) of paragraph (4) 
of section 15(b); 
‘‘(B) has been convicted of any offense 
specified in subparagraph (B) of such para-
graph (4) within 10 years of the commencement 
of the proceedings under this subsection; 
‘‘(C) is enjoined from any action, conduct, 
or practice specified in subparagraph (C) of 
such paragraph (4); 
‘‘(D) is subject to an order or a final order 
specified in subparagraph (F) or (H), respec-
tively, of such paragraph (4); or 
‘‘(E) has been found by a foreign financial 
regulatory authority to have committed or omit-
ted any act, or violated any foreign statute or 
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648 
regulation, enumerated in subparagraph (G) of 
such paragraph (4). 
‘‘(3) With respect to any person who is associ-
ated, who is seeking to become associated, or, at the 
time of the alleged misconduct, who was associated 
or was seeking to become associated with a security- 
based swap dealer or major security-based swap par-
ticipant for the purpose of effecting or being in-
volved in effecting security-based swaps on behalf of 
such security-based swap dealer or major security- 
based swap participant, the Commission, by order, 
shall censure, place limitations on the activities or 
functions of such person, or suspend for a period not 
exceeding 12 months, or bar such person from being 
associated with a security-based swap dealer or 
major security-based swap participant, if the Com-
mission finds, on the record after notice and oppor-
tunity for a hearing, that such censure, placing of 
limitations, suspension, or bar is in the public inter-
est and that such person— 
‘‘(A) has committed or omitted any act, or 
is subject to an order or finding, enumerated in 
subparagraph (A), (D), or (E) of paragraph (4) 
of section 15(b); 
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649 
‘‘(B) has been convicted of any offense 
specified in subparagraph (B) of such para-
graph (4) within 10 years of the commencement 
of the proceedings under this subsection; 
‘‘(C) is enjoined from any action, conduct, 
or practice specified in subparagraph (C) of 
such paragraph (4); 
‘‘(D) is subject to an order or a final order 
specified in subparagraph (F) or (H), respec-
tively, of such paragraph (4); or 
‘‘(E) has been found by a foreign financial 
regulatory authority to have committed or omit-
ted any act, or violated any foreign statute or 
regulation, enumerated in subparagraph (G) of 
such paragraph (4). 
‘‘(4) It shall be unlawful— 
‘‘(A) for any person as to whom an order 
under paragraph (3) is in effect, without the 
consent of the Commission, willfully to become, 
or to be, associated with a security-based swap 
dealer or major security-based swap participant 
in contravention of such order; or 
‘‘(B) for any security-based swap dealer or 
major security-based swap participant to permit 
such a person, without the consent of the Com-
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