The two Regulation SBSR adopting releases comprise over 1,000 pages. The regulation is comprehensive. Clearly, the SEC has learned lessons from the CFTC's implementation process and is attempting to address some of the questions that arose for the CFTC. For example, the SEC provides lengthy guidance on (i) reporting security-based swaps that involve allocation (pp. 127-140) and (ii) prime brokerage transactions (pp. 140-152). In each of these situations, CFTC staff was forced to provide guidance immediately after the reporting rules went live.

Notably, one amendment affects the SEC application of its "arranged, negotiated or executed" concept to the reporting of transactions. The amendment states that reporting is required in transactions between two non-U.S. persons (and not guaranteed by U.S. persons) if one of the entities is dealing (but unregistered) and the SBS is "arranged, negotiated or executed" by personnel in a U.S. branch or office. In adopting this regulation, the SEC acknowledges (at p. 173) that this concept likely will affect only four foreign dealers. That acknowledgement begs the question: how can such a collective burden (i.e., the reporting infrastructure) be justified as a minimization of systemic risk in the case of four firms doing a small amount of business – especially when those firms and their counterparties will take their underlying financial risk with them to their country of origin?

The final amendments were adopted with strong support from all of the SEC Commissioners, who seemed to be pushing for the completion of the rules. Commissioner Kara M. Stein noted that, before the crisis, "[n]o one understood where the risk resided or how concentrated exposures were." Similarly, Commissioner Michael S. Piwowar supported the compliance schedule but commented that delaying the rule involves risks, since "[o]ne of the greatest lessons we learned during the financial crisis was that both regulators and the public did not understand the risks posed by the [OTC derivatives] markets." Commissioner Piwowar criticized Chair White pointedly: the Commissioners "have no idea," he said, "when final rules on capital and margin will make their way onto the [SEC's] agenda." He also mentioned bipartisan calls for completion (which were voiced first by Commissioners Stein and Aguilar, and then by Commissioners Piwowar and Gallagher), and questioned why those calls "have not been enough to influence the Chair into prioritizing our Title VII mandates."