81_FR_7895 81 FR 7865 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Amend the Derivatives and Other Off-Balance Sheet Items Schedule Pursuant to FINRA Rule 4524 (Supplemental FOCUS Information)

81 FR 7865 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Amend the Derivatives and Other Off-Balance Sheet Items Schedule Pursuant to FINRA Rule 4524 (Supplemental FOCUS Information)

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 81, Issue 30 (February 16, 2016)

Page Range7865-7867
FR Document2016-02990

Federal Register, Volume 81 Issue 30 (Tuesday, February 16, 2016)
[Federal Register Volume 81, Number 30 (Tuesday, February 16, 2016)]
[Notices]
[Pages 7865-7867]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-02990]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77098; File No. SR-FINRA-2015-059]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Order Approving a Proposed Rule Change To Amend the 
Derivatives and Other Off-Balance Sheet Items Schedule Pursuant to 
FINRA Rule 4524 (Supplemental FOCUS Information)

February 9, 2016.

I. Introduction

    On December 23, 2015, the Financial Industry Regulatory Authority, 
Inc. (``FINRA'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to amend the instructions to the 
Derivatives and Other Off-Balance Sheet Items Schedule (``OBS'') 
pursuant to FINRA Rule 4524 (Supplemental FOCUS Information) to expand 
the application of the OBS to certain non-carrying/non-clearing firms 
that have a certain amount of off-balance sheet obligations. The 
proposed rule change was published for comment in the Federal Register 
on January 7, 2016.\3\ The Commission did not receive written comments 
in response to the proposed rule change. This order approves the 
proposed rule change.
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    \1\ See 15 U.S.C. 78s(b)(1).
    \2\ See 17 CFR 240.19b-4.
    \3\ See Exchange Act Release No. 76813 (Dec. 31, 2015), 81 FR 
844 (Jan. 7, 2016).
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II. Description of Proposed Rule Change

    FINRA Rule 4524 requires each firm, as FINRA shall designate, to 
file such additional financial or operational schedules or reports as 
FINRA may deem necessary or appropriate for the protection of investors 
or in the public interest as a supplement to the FOCUS Report.\4\ In 
February 2013, the SEC approved FINRA's adoption, pursuant to FINRA 
Rule 4524, of the OBS as a supplement to the FOCUS report.\5\ The OBS 
captures important information that is not otherwise reported on firms' 
balance sheets and requires all firms that carry customer accounts or 
self-clear or clear transactions for others (referred to, collectively, 
as ``carrying or clearing firms'') to file with FINRA the OBS within 22 
business days of the end of each calendar quarter, unless a carrying or 
clearing firm meets the de minimis exception set forth in the 
instructions to the OBS.\6\
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    \4\ See Securities Exchange Act Release No. 66364 (Feb. 9, 
2012), 77 FR 8938 (Feb. 15, 2012) (Order Approving File No. SR-
FINRA-2011-064). FINRA Rule 4524 also provides that FINRA will 
specify the content of additional schedules or reports, their 
format, and the timing and the frequency of such supplemental 
filings in a Regulatory Notice (or similar communication), the 
content of which FINRA will file with the Commission pursuant to 
Section 19(b) of the Exchange Act.
    \5\ See Securities Exchange Act Release No. 68832 (Feb. 5, 
2013), 78 FR 9754 (Feb. 11, 2013) (Order Approving File No. SR-
FINRA-2012-050). Carrying or clearing firms were required to file 
with FINRA their initial OBS on or before July 31, 2013, to disclose 
off-balance sheet information as of June 30, 2013. See Regulatory 
Notice 13-10 (March 2013) (Supplemental FOCUS Information).
    \6\ The de minimis exception relieves a carrying or clearing 
firm from filing the OBS for the reporting period if the aggregate 
of all gross amounts of off-balance sheet items is less than 10 
percent of the firm's excess net capital on the last day of the 
reporting period. For purposes of the OBS, as well as the proposed 
amendments to the OBS, the term ``excess net capital'' means net 
capital reduced by the greater of the minimum dollar net capital 
requirement or two percent of combined aggregate debit items as 
shown in the Formula for Reserve Requirements pursuant to Exchange 
Act Rule 15c3-3. See Securities Exchange Act Release No. 68832 (Feb. 
5, 2013), 78 FR 9754, 9755 (Feb. 11, 2013) (Order Approving File No. 
SR-FINRA-2012-050).
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    Pursuant to FINRA Rule 4524, FINRA proposed to amend the 
instructions to the OBS to expand its application beyond carrying or 
clearing firms to include firms that neither carry customer accounts 
nor clear transactions (referred to, collectively, as ``non-clearing 
firms'') that have,

[[Page 7866]]

pursuant to Exchange Act Rule 15c3-1,\7\ a minimum dollar net capital 
requirement equal to or greater than $100,000, and at least $10 million 
in reportable items pursuant to the OBS. The proposed rule change does 
not otherwise change the OBS or its instructions, including the de 
minimis exception. Accordingly, consistent with the current OBS, any 
firm (i.e., either a carrying or clearing firm or a non-clearing firm) 
that meets the de minimis exception need not file the OBS for the 
reporting period.\8\ Further, under the proposed rule change, as well 
as under the current OBS, any firm that is required to file the OBS 
must do so as of the last day of a reporting period within 22 business 
days of the end of each calendar quarter.
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    \7\ See 17 CFR 240.15c3-1 (Net Capital Requirements for Brokers 
or Dealers). Exchange Act Rule 15c3-1(a)(2)(iii) requires a 
``dealer'' (as defined in Exchange Act Rule 15c3-1(a)(2)(iii)) to 
maintain net capital of not less than $100,000.
    \8\ However, a firm that claims the de minimis exception must 
affirmatively indicate through the eFOCUS system that no filing is 
required for the reporting period. See Regulatory Notice 13-10 
(March 2013) (Supplemental FOCUS Information).
---------------------------------------------------------------------------

    When FINRA proposed the OBS, FINRA noted the need, in the aftermath 
of the financial crisis, to obtain more comprehensive and consistent 
information regarding carrying or clearing firms' off-balance sheet 
assets, liabilities and other commitments.\9\ By requiring carrying or 
clearing firms to report their gross exposures in financing 
transactions (e.g., reverse repos, repos and other transactions that 
are otherwise netted under generally accepted accounting principles, 
reverse repos and repos to maturity and collateral swap transactions), 
interests in and exposure to variable interest entities, non-regular 
way settlement transactions (including to-be-announced or TBA \10\ 
securities and delayed delivery/settlement transactions), underwriting 
and other financing commitments, and gross notional amounts in 
centrally cleared and non-centrally cleared derivative transactions on 
the OBS, FINRA states that it has been able to more effectively monitor 
on an ongoing basis the potential impact that such off-balance sheet 
activities may have on carrying or clearing firms' net capital, 
leverage and liquidity, and their ability to fulfill their customer 
protection obligations.
---------------------------------------------------------------------------

    \9\ See Securities Exchange Act Release No. 68270 (Nov. 20, 
2012), 77 FR 70860 (Nov. 27, 2012) (Notice of Filing File No. SR-
FINRA-2012-050).
    \10\ FINRA Rule 6710(u) defines ``TBA'' to mean a transaction in 
an Agency Pass-Through Mortgage-Backed Security (``MBS'') or a Small 
Business Administration (``SBA'')-Backed Asset-Backed Security 
(``ABS'') where the parties agree that the seller will deliver to 
the buyer a pool or pools of a specified face amount and meeting 
certain other criteria but the specific pool or pools to be 
delivered at settlement is not specified at the Time of Execution, 
and includes TBA transactions for good delivery and TBA transactions 
not for good delivery. Agency Pass-Through MBS and SBA-Backed ABS 
are defined under FINRA Rule 6710(v) and FINRA Rule 6710(bb), 
respectively. The term ``Time of Execution'' is defined under FINRA 
Rule 6710(d).
---------------------------------------------------------------------------

    Since the OBS became effective, however, FINRA has observed 
considerable principal trading activities of some non-clearing firms. 
In particular, through its efforts to establish margin requirements for 
the TBA market \11\ and subsequent examinations of firms' margining 
practices related to all securities transactions with extended 
settlement dates, FINRA has become aware of non-clearing firms with 
both material TBA transactions as well as other types of securities 
transactions with extended settlement dates. In the case of TBA 
transactions, non-clearing firms may have entered into a Master 
Securities Forward Transaction Agreement (``MSFTA'') \12\ with their 
clients and are principal to the TBA transactions. In the case of other 
transactions with extended settlement dates cleared through a clearing 
firm, non-clearing firms are principal to the trades and financially 
responsible to the clearing firms for any losses that may result from 
clients' failures to complete the transactions on the date of 
settlement. Therefore, these transactions may present significant 
financial exposure for non-clearing firms, and FINRA is concerned about 
firms appropriately monitoring their financial exposure and applying 
capital charges for these transactions as required for compliance with 
Exchange Act Rule 15c3-1.\13\ Further, such transactions are not 
reported on non-clearing firms' balance sheets, making it difficult to 
monitor their compliance with capital requirements.
---------------------------------------------------------------------------

    \11\ See Securities Exchange Act Release No. 76148 (Oct. 14, 
2015), 80 FR 63603 (Oct. 20, 2015) (Notice of Filing File No. SR-
FINRA-2015-036).
    \12\ The Securities Industry and Financial Markets Association 
(``SIFMA'') developed, and subsequently updated, in coordination 
with the Treasury Market Practices Group (``TMPG''), the MSFTA as a 
standard industry template for forward and other delayed delivery 
transactions involving mortgage-backed and asset-backed securities. 
See, e.g., SIFMA Guidance Notes to the Master Securities Forward 
Transaction Agreement (December 2012), available at: http://www.sifma.org/services/standard-forms-and-documentation/mra,-gmra,-msla-and-msftas/.
    \13\ See 17 CFR 240.15c3-1.
---------------------------------------------------------------------------

    As a result of these concerns, and to ensure that all firms with 
significant derivative and off-balance sheet positions report these 
positions to FINRA on a consistent and regular basis, FINRA proposed to 
expand the reporting requirements of the OBS to non-clearing firms that 
have a minimum dollar net capital requirement equal to or greater than 
$100,000, and at least $10 million in reportable items pursuant to the 
OBS. The current de minimis exception would remain available to any 
firm that conducts limited off-balance sheet activity.\14\
---------------------------------------------------------------------------

    \14\ See supra note 5.
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    FINRA stated that it will announce the proposed rule change's 
implementation date (i.e., the first quarterly reporting period for 
newly affected firms \15\) in a Regulatory Notice to be published no 
later than 60 days following Commission approval of the rule change, 
and that the implementation date will be no later than 210 days 
following Commission approval of the rule change.
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    \15\ Carrying or clearing firms that are currently subject to 
the OBS's reporting requirements would not be impacted by the 
proposed rule change and shall continue to file on a quarterly 
basis, as required, without interruption.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    After careful consideration of the proposed rule change, the 
Commission finds that the proposed rule change is consistent with the 
requirements of the Exchange Act, and the rules and regulations 
thereunder that are applicable to a national securities 
association.\16\ In particular, the Commission finds that the proposal 
is consistent with the provisions of Section 15A(b)(6) of the Exchange 
Act,\17\ which requires, among other things, that rules of a national 
securities association be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to remove impediments to and perfect the mechanism 
of a free and open market and a national market system, and, in 
general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \16\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
    \17\ See 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    The Commission believes that the proposed rule change is consistent 
with the Exchange Act because expanding the reporting requirements of 
the OBS to the proposed non-clearing firms should permit FINRA to 
assess effectively on an ongoing basis the potential impact off-balance 
sheet activities may have on these firms' net capital, leverage and 
liquidity, and ability to fulfill obligations to other members and 
counterparties. In addition, impacted non-clearing firms, as well as 
their correspondent clearing firms, may benefit from increased 
awareness of their open trade exposures, which may

[[Page 7867]]

reduce their potential for losses, encourage better counterparty risk 
management and promote firms' financial stability.
    The Commission does not believe that the proposed rule change will 
result in burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Exchange Act. The Commission 
believes FINRA has carefully crafted the proposed rule change to 
achieve its intended and necessary regulatory purpose while minimizing 
the burden on firms. Although the proposed rule change expands the 
number of firms required to file the OBS, the expansion is limited to 
non-clearing firms that have a minimum dollar net capital requirement 
equal to or greater than $100,000, and at least $10 million in 
reportable items pursuant to the OBS. In addition, the current de 
minimis exception continues to remain available to any firm that 
conducts off-balance sheet activity that is limited relative to its 
excess net capital.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Exchange Act,\18\ that the proposed rule change (SR-FINRA-2015-059) be 
and hereby is approved.
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    \18\ See 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\19\
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    \19\ See 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-02990 Filed 2-12-16; 8:45 am]
 BILLING CODE 8011-01-P



                                                                              Federal Register / Vol. 81, No. 30 / Tuesday, February 16, 2016 / Notices                                                      7865

                                                  C. Self-Regulatory Organization’s                       provisions of 5 U.S.C. 552, will be                   Federal Register on January 7, 2016.3
                                                  Statement on Comments on the                            available for Web site viewing and                    The Commission did not receive written
                                                  Proposed Rule Change Received From                      printing in the Commission’s Public                   comments in response to the proposed
                                                  Members, Participants, or Others                        Reference Room, 100 F Street NE.,                     rule change. This order approves the
                                                    The Exchange has neither solicited                    Washington, DC 20549 on official                      proposed rule change.
                                                  nor received written comments on the                    business days between the hours of
                                                                                                          10:00 a.m. and 3:00 p.m. Copies of such               II. Description of Proposed Rule Change
                                                  proposed rule change.
                                                                                                          filing also will be available for                        FINRA Rule 4524 requires each firm,
                                                  III. Date of Effectiveness of the                       inspection and copying at the principal               as FINRA shall designate, to file such
                                                  Proposed Rule Change and Timing for                     office of the Exchange. All comments                  additional financial or operational
                                                  Commission Action                                       received will be posted without change;               schedules or reports as FINRA may
                                                     Within 45 days of the date of                        the Commission does not edit personal                 deem necessary or appropriate for the
                                                  publication of this notice in the Federal               identifying information from                          protection of investors or in the public
                                                  Register or within such longer period (i)               submissions. You should submit only                   interest as a supplement to the FOCUS
                                                  as the Commission may designate up to                   information that you wish to make                     Report.4 In February 2013, the SEC
                                                  90 days of such date if it finds such                   available publicly. All submissions                   approved FINRA’s adoption, pursuant
                                                  longer period to be appropriate and                     should refer to File Number SR–BATS–                  to FINRA Rule 4524, of the OBS as a
                                                  publishes its reasons for so finding or                 2016–03, and should be submitted on or                supplement to the FOCUS report.5 The
                                                  (ii) as to which the Exchange consents,                 before March 8, 2016.                                 OBS captures important information
                                                  the Commission will: (a) By order                         For the Commission, by the Division of              that is not otherwise reported on firms’
                                                  approve or disapprove such proposed                     Trading and Markets, pursuant to delegated            balance sheets and requires all firms
                                                  rule change, or (b) institute proceedings               authority.37                                          that carry customer accounts or self-
                                                  to determine whether the proposed rule                  Brent J. Fields,                                      clear or clear transactions for others
                                                  change should be disapproved.                           Secretary.                                            (referred to, collectively, as ‘‘carrying or
                                                                                                          [FR Doc. 2016–02981 Filed 2–12–16; 8:45 am]           clearing firms’’) to file with FINRA the
                                                  IV. Solicitation of Comments
                                                                                                          BILLING CODE 8011–01–P
                                                                                                                                                                OBS within 22 business days of the end
                                                     Interested persons are invited to                                                                          of each calendar quarter, unless a
                                                  submit written data, views, and                                                                               carrying or clearing firm meets the de
                                                  arguments concerning the foregoing,                     SECURITIES AND EXCHANGE                               minimis exception set forth in the
                                                  including whether the proposed rule                     COMMISSION                                            instructions to the OBS.6
                                                  change, as modified by Amendment No.                                                                             Pursuant to FINRA Rule 4524, FINRA
                                                  1 thereto, is consistent with the Act.                                                                        proposed to amend the instructions to
                                                                                                          [Release No. 34–77098; File No. SR–FINRA–
                                                  Comments may be submitted by any of                     2015–059]                                             the OBS to expand its application
                                                  the following methods:                                                                                        beyond carrying or clearing firms to
                                                  Electronic Comments                                     Self-Regulatory Organizations;                        include firms that neither carry
                                                                                                          Financial Industry Regulatory                         customer accounts nor clear
                                                    • Use the Commission’s Internet                       Authority, Inc.; Order Approving a                    transactions (referred to, collectively, as
                                                  comment form (http://www.sec.gov/                       Proposed Rule Change To Amend the                     ‘‘non-clearing firms’’) that have,
                                                  rules/sro.shtml); or                                    Derivatives and Other Off-Balance
                                                    • Send an email to rule-comments@                     Sheet Items Schedule Pursuant to                         3 See Exchange Act Release No. 76813 (Dec. 31,
                                                  sec.gov. Please include File Number SR–                 FINRA Rule 4524 (Supplemental                         2015), 81 FR 844 (Jan. 7, 2016).
                                                  BATS–2016–03 on the subject line.                       FOCUS Information)                                       4 See Securities Exchange Act Release No. 66364

                                                                                                                                                                (Feb. 9, 2012), 77 FR 8938 (Feb. 15, 2012) (Order
                                                  Paper Comments                                                                                                Approving File No. SR–FINRA–2011–064). FINRA
                                                                                                          February 9, 2016.
                                                    • Send paper comments in triplicate                                                                         Rule 4524 also provides that FINRA will specify the
                                                  to Secretary, Securities and Exchange                   I. Introduction                                       content of additional schedules or reports, their
                                                                                                                                                                format, and the timing and the frequency of such
                                                  Commission, 100 F Street NE.,                              On December 23, 2015, the Financial                supplemental filings in a Regulatory Notice (or
                                                  Washington, DC 20549–1090.                              Industry Regulatory Authority, Inc.                   similar communication), the content of which
                                                                                                                                                                FINRA will file with the Commission pursuant to
                                                  All submissions should refer to File                    (‘‘FINRA’’) filed with the Securities and             Section 19(b) of the Exchange Act.
                                                  Number SR–BATS–2016–03. This file                       Exchange Commission (‘‘SEC’’ or                          5 See Securities Exchange Act Release No. 68832
                                                  number should be included on the                        ‘‘Commission’’), pursuant to Section                  (Feb. 5, 2013), 78 FR 9754 (Feb. 11, 2013) (Order
                                                  subject line if email is used. To help the              19(b)(1) of the Securities Exchange Act               Approving File No. SR–FINRA–2012–050). Carrying
                                                  Commission process and review your                                                                            or clearing firms were required to file with FINRA
                                                                                                          of 1934 (‘‘Exchange Act’’) 1 and Rule                 their initial OBS on or before July 31, 2013, to
                                                  comments more efficiently, please use                   19b–4 thereunder,2 a proposed rule                    disclose off-balance sheet information as of June 30,
                                                  only one method. The Commission will                    change to amend the instructions to the               2013. See Regulatory Notice 13–10 (March 2013)
                                                  post all comments on the Commission’s                   Derivatives and Other Off-Balance Sheet               (Supplemental FOCUS Information).
                                                                                                                                                                   6 The de minimis exception relieves a carrying or
                                                  Internet Web site (http://www.sec.gov/                  Items Schedule (‘‘OBS’’) pursuant to
                                                                                                                                                                clearing firm from filing the OBS for the reporting
                                                  rules/sro.shtml). Copies of the                         FINRA Rule 4524 (Supplemental                         period if the aggregate of all gross amounts of off-
                                                  submission, all subsequent                              FOCUS Information) to expand the                      balance sheet items is less than 10 percent of the
                                                  amendments, all written statements                      application of the OBS to certain non-                firm’s excess net capital on the last day of the
                                                                                                                                                                reporting period. For purposes of the OBS, as well
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                  with respect to the proposed rule                       carrying/non-clearing firms that have a
                                                                                                                                                                as the proposed amendments to the OBS, the term
                                                  change that are filed with the                          certain amount of off-balance sheet                   ‘‘excess net capital’’ means net capital reduced by
                                                  Commission, and all written                             obligations. The proposed rule change                 the greater of the minimum dollar net capital
                                                  communications relating to the                          was published for comment in the                      requirement or two percent of combined aggregate
                                                  proposed rule change between the                                                                              debit items as shown in the Formula for Reserve
                                                                                                                                                                Requirements pursuant to Exchange Act Rule 15c3–
                                                  Commission and any person, other than                     37 17 CFR 200.30–3(a)(12).                          3. See Securities Exchange Act Release No. 68832
                                                  those that may be withheld from the                       1 See 15 U.S.C. 78s(b)(1).                          (Feb. 5, 2013), 78 FR 9754, 9755 (Feb. 11, 2013)
                                                  public in accordance with the                             2 See 17 CFR 240.19b–4.                             (Order Approving File No. SR–FINRA–2012–050).



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                                                  7866                        Federal Register / Vol. 81, No. 30 / Tuesday, February 16, 2016 / Notices

                                                  pursuant to Exchange Act Rule 15c3–1,7                  on the OBS, FINRA states that it has                   non-clearing firms that have a minimum
                                                  a minimum dollar net capital                            been able to more effectively monitor on               dollar net capital requirement equal to
                                                  requirement equal to or greater than                    an ongoing basis the potential impact                  or greater than $100,000, and at least
                                                  $100,000, and at least $10 million in                   that such off-balance sheet activities                 $10 million in reportable items pursuant
                                                  reportable items pursuant to the OBS.                   may have on carrying or clearing firms’                to the OBS. The current de minimis
                                                  The proposed rule change does not                       net capital, leverage and liquidity, and               exception would remain available to
                                                  otherwise change the OBS or its                         their ability to fulfill their customer                any firm that conducts limited off-
                                                  instructions, including the de minimis                  protection obligations.                                balance sheet activity.14
                                                  exception. Accordingly, consistent with                    Since the OBS became effective,                        FINRA stated that it will announce
                                                  the current OBS, any firm (i.e., either a               however, FINRA has observed                            the proposed rule change’s
                                                  carrying or clearing firm or a non-                     considerable principal trading activities              implementation date (i.e., the first
                                                  clearing firm) that meets the de minimis                of some non-clearing firms. In                         quarterly reporting period for newly
                                                  exception need not file the OBS for the                 particular, through its efforts to                     affected firms 15) in a Regulatory Notice
                                                  reporting period.8 Further, under the                   establish margin requirements for the                  to be published no later than 60 days
                                                  proposed rule change, as well as under                  TBA market 11 and subsequent                           following Commission approval of the
                                                  the current OBS, any firm that is                       examinations of firms’ margining                       rule change, and that the
                                                  required to file the OBS must do so as                  practices related to all securities                    implementation date will be no later
                                                  of the last day of a reporting period                   transactions with extended settlement                  than 210 days following Commission
                                                  within 22 business days of the end of                   dates, FINRA has become aware of non-                  approval of the rule change.
                                                  each calendar quarter.                                  clearing firms with both material TBA
                                                                                                                                                                 III. Discussion and Commission
                                                     When FINRA proposed the OBS,                         transactions as well as other types of
                                                                                                                                                                 Findings
                                                  FINRA noted the need, in the aftermath                  securities transactions with extended
                                                  of the financial crisis, to obtain more                 settlement dates. In the case of TBA                      After careful consideration of the
                                                  comprehensive and consistent                            transactions, non-clearing firms may                   proposed rule change, the Commission
                                                  information regarding carrying or                       have entered into a Master Securities                  finds that the proposed rule change is
                                                  clearing firms’ off-balance sheet assets,               Forward Transaction Agreement                          consistent with the requirements of the
                                                  liabilities and other commitments.9 By                  (‘‘MSFTA’’) 12 with their clients and are              Exchange Act, and the rules and
                                                  requiring carrying or clearing firms to                 principal to the TBA transactions. In the              regulations thereunder that are
                                                  report their gross exposures in financing               case of other transactions with extended               applicable to a national securities
                                                  transactions (e.g., reverse repos, repos                settlement dates cleared through a                     association.16 In particular, the
                                                  and other transactions that are                         clearing firm, non-clearing firms are                  Commission finds that the proposal is
                                                  otherwise netted under generally                        principal to the trades and financially                consistent with the provisions of
                                                  accepted accounting principles, reverse                 responsible to the clearing firms for any              Section 15A(b)(6) of the Exchange Act,17
                                                  repos and repos to maturity and                         losses that may result from clients’                   which requires, among other things, that
                                                  collateral swap transactions), interests                failures to complete the transactions on               rules of a national securities association
                                                  in and exposure to variable interest                    the date of settlement. Therefore, these               be designed to prevent fraudulent and
                                                  entities, non-regular way settlement                    transactions may present significant                   manipulative acts and practices, to
                                                  transactions (including to-be-announced                 financial exposure for non-clearing                    promote just and equitable principles of
                                                  or TBA 10 securities and delayed                        firms, and FINRA is concerned about                    trade, to remove impediments to and
                                                  delivery/settlement transactions),                      firms appropriately monitoring their                   perfect the mechanism of a free and
                                                  underwriting and other financing                        financial exposure and applying capital                open market and a national market
                                                  commitments, and gross notional                         charges for these transactions as                      system, and, in general, to protect
                                                  amounts in centrally cleared and non-                   required for compliance with Exchange                  investors and the public interest.
                                                  centrally cleared derivative transactions               Act Rule 15c3–1.13 Further, such                          The Commission believes that the
                                                                                                          transactions are not reported on non-                  proposed rule change is consistent with
                                                     7 See 17 CFR 240.15c3–1 (Net Capital                 clearing firms’ balance sheets, making it              the Exchange Act because expanding
                                                  Requirements for Brokers or Dealers). Exchange Act      difficult to monitor their compliance                  the reporting requirements of the OBS to
                                                  Rule 15c3–1(a)(2)(iii) requires a ‘‘dealer’’ (as
                                                                                                          with capital requirements.                             the proposed non-clearing firms should
                                                  defined in Exchange Act Rule 15c3–1(a)(2)(iii)) to                                                             permit FINRA to assess effectively on an
                                                  maintain net capital of not less than $100,000.            As a result of these concerns, and to
                                                     8 However, a firm that claims the de minimis         ensure that all firms with significant                 ongoing basis the potential impact off-
                                                  exception must affirmatively indicate through the       derivative and off-balance sheet                       balance sheet activities may have on
                                                  eFOCUS system that no filing is required for the        positions report these positions to                    these firms’ net capital, leverage and
                                                  reporting period. See Regulatory Notice 13–10           FINRA on a consistent and regular basis,               liquidity, and ability to fulfill
                                                  (March 2013) (Supplemental FOCUS Information).
                                                     9 See Securities Exchange Act Release No. 68270      FINRA proposed to expand the                           obligations to other members and
                                                  (Nov. 20, 2012), 77 FR 70860 (Nov. 27, 2012)            reporting requirements of the OBS to                   counterparties. In addition, impacted
                                                  (Notice of Filing File No. SR–FINRA–2012–050).                                                                 non-clearing firms, as well as their
                                                     10 FINRA Rule 6710(u) defines ‘‘TBA’’ to mean a        11 See Securities Exchange Act Release No. 76148     correspondent clearing firms, may
                                                  transaction in an Agency Pass-Through Mortgage-         (Oct. 14, 2015), 80 FR 63603 (Oct. 20, 2015) (Notice   benefit from increased awareness of
                                                  Backed Security (‘‘MBS’’) or a Small Business           of Filing File No. SR–FINRA–2015–036).                 their open trade exposures, which may
                                                  Administration (‘‘SBA’’)-Backed Asset-Backed              12 The Securities Industry and Financial Markets
                                                  Security (‘‘ABS’’) where the parties agree that the     Association (‘‘SIFMA’’) developed, and
                                                                                                                                                                   14 See supra note 5.
                                                  seller will deliver to the buyer a pool or pools of     subsequently updated, in coordination with the
                                                                                                                                                                   15 Carrying  or clearing firms that are currently
                                                  a specified face amount and meeting certain other
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                                                                                                          Treasury Market Practices Group (‘‘TMPG’’), the
                                                  criteria but the specific pool or pools to be           MSFTA as a standard industry template for forward      subject to the OBS’s reporting requirements would
                                                  delivered at settlement is not specified at the Time    and other delayed delivery transactions involving      not be impacted by the proposed rule change and
                                                  of Execution, and includes TBA transactions for         mortgage-backed and asset-backed securities. See,      shall continue to file on a quarterly basis, as
                                                  good delivery and TBA transactions not for good         e.g., SIFMA Guidance Notes to the Master Securities    required, without interruption.
                                                                                                          Forward Transaction Agreement (December 2012),           16 In approving this proposed rule change, the
                                                  delivery. Agency Pass-Through MBS and SBA-
                                                  Backed ABS are defined under FINRA Rule 6710(v)         available at: http://www.sifma.org/services/           Commission has considered the proposed rule’s
                                                  and FINRA Rule 6710(bb), respectively. The term         standard-forms-and-documentation/mra,-gmra,-           impact on efficiency, competition, and capital
                                                  ‘‘Time of Execution’’ is defined under FINRA Rule       msla-and-msftas/.                                      formation. See 15 U.S.C. 78c(f).
                                                  6710(d).                                                  13 See 17 CFR 240.15c3–1.                              17 See 15 U.S.C. 78o–3(b)(6).




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                                                                                   Federal Register / Vol. 81, No. 30 / Tuesday, February 16, 2016 / Notices                                                                7867

                                                  reduce their potential for losses,                              SECURITIES AND EXCHANGE                                     places specified in Item IV below. The
                                                  encourage better counterparty risk                              COMMISSION                                                  Exchange has prepared summaries, set
                                                  management and promote firms’                                                                                               forth in sections A, B, and C below, of
                                                                                                                  [Release No. 34–77093; File No. SR–CBOE–
                                                  financial stability.                                            2016–008]
                                                                                                                                                                              the most significant aspects of such
                                                     The Commission does not believe that                                                                                     statements.
                                                  the proposed rule change will result in                         Self-Regulatory Organizations;                              A. Self-Regulatory Organization’s
                                                  burden on competition that is not                               Chicago Board Options Exchange,                             Statement of the Purpose of, and
                                                  necessary or appropriate in furtherance                         Incorporated; Notice of Filing and                          Statutory Basis for, the Proposed Rule
                                                  of the purposes of the Exchange Act.                            Immediate Effectiveness of a Proposed                       Change
                                                                                                                  Rule To Amend the Fees Schedule
                                                  The Commission believes FINRA has                                                                                           1. Purpose
                                                  carefully crafted the proposed rule                             February 9, 2016.
                                                  change to achieve its intended and                                 Pursuant to Section 19(b)(1) of the                        The Exchange proposes to amend its
                                                  necessary regulatory purpose while                              Securities Exchange Act of 1934                             Fees Schedule.3
                                                  minimizing the burden on firms.                                 (‘‘Act’’),1 and Rule 19b–4 thereunder,2                     CBOE Proprietary Products Sliding
                                                  Although the proposed rule change                               notice is hereby given that on February                     Scale
                                                  expands the number of firms required to                         4, 2016, Chicago Board Options
                                                                                                                  Exchange, Incorporated (the ‘‘Exchange’’                       The CBOE Proprietary Products
                                                  file the OBS, the expansion is limited to                                                                                   Sliding Scale table provides that
                                                  non-clearing firms that have a minimum                          or ‘‘CBOE’’) filed with the Securities
                                                                                                                  and Exchange Commission                                     Clearing Trading Permit Holder
                                                  dollar net capital requirement equal to                                                                                     Proprietary transaction fees and
                                                  or greater than $100,000, and at least                          (‘‘Commission’’) the proposed rule
                                                                                                                  change as described in Items I, II, and                     transaction fees for Non-Clearing
                                                  $10 million in reportable items pursuant                                                                                    Trading Permit Holder Affiliates in
                                                  to the OBS. In addition, the current de                         III below, which Items have been
                                                                                                                  prepared by the Exchange. The                               Underlying Symbol List A 4 are reduced
                                                  minimis exception continues to remain                                                                                       provided a Clearing Trading Permit
                                                                                                                  Commission is publishing this notice to
                                                  available to any firm that conducts off-                                                                                    Holder (‘‘Clearing TPH’’) (including its
                                                                                                                  solicit comments on the proposed rule
                                                  balance sheet activity that is limited                                                                                      Non-Trading Permit Holder affiliates)
                                                                                                                  change from interested persons.
                                                  relative to its excess net capital.                                                                                         reaches certain average daily volume
                                                                                                                  I. Self-Regulatory Organization’s                           (‘‘ADV’’) thresholds in all underlying
                                                  IV. Conclusion                                                  Statement of the Terms of Substance of                      symbols excluding Underlying Symbol
                                                    It is therefore ordered, pursuant to                          the Proposed Rule Change                                    List A and mini-options on the
                                                  Section 19(b)(2) of the Exchange Act,18                            The Exchange proposes to amend the                       Exchange in a month. The Exchange
                                                  that the proposed rule change (SR–                              Fees Schedule. The text of the proposed                     proposes to implement changes to the
                                                  FINRA–2015–059) be and hereby is                                rule change is available on the                             CBOE Proprietary Products Sliding
                                                  approved.                                                       Exchange’s Web site (http://                                Scale (‘‘Proprietary Sliding Scale’’).
                                                                                                                  www.cboe.com/AboutCBOE/                                     First, the Exchange proposes to amend
                                                    For the Commission, by the Division of                                                                                    the current qualifying ADV thresholds.
                                                                                                                  CBOELegalRegulatoryHome.aspx), at
                                                  Trading and Markets, pursuant to delegated                                                                                  Specifically, the threshold 20,000 ADV
                                                                                                                  the Exchange’s Office of the Secretary,
                                                  authority.19                                                                                                                to 79,999 ADV would be changed to
                                                                                                                  and at the Commission’s Public
                                                  Brent J. Fields,                                                Reference Room.                                             25,000 ADV to 69,999 ADV, and the
                                                  Secretary.                                                                                                                  threshold 80,000 ADV and above would
                                                                                                                  II. Self-Regulatory Organization’s                          be changed to 70,000 ADV and above.
                                                  [FR Doc. 2016–02990 Filed 2–12–16; 8:45 am]
                                                                                                                  Statement of the Purpose of, and                            The Exchange also proposes to increase
                                                  BILLING CODE 8011–01–P                                          Statutory Basis for, the Proposed Rule                      the rates set forth in Tiers B1 through
                                                                                                                  Change                                                      B3, as well as in Tiers A1 and A2.
                                                                                                                     In its filing with the Commission, the                   Specifically, the Exchange proposes to
                                                                                                                  Exchange included statements                                increase the rate in Tier B3 to $0.22
                                                                                                                  concerning the purpose of and basis for                     from $0.20, in Tier B2 to $0.12 from
                                                                                                                  the proposed rule change and discussed                      $0.10, in Tier B1 to $0.05 from $0.02, in
                                                                                                                  any comments it received on the                             Tier A2 to $0.18 from $0.16 and in Tier
                                                                                                                  proposed rule change. The text of these                     A1 to $0.02 from $0.01. The proposed
                                                                                                                  statements may be examined at the                           changes are further detailed below.

                                                                                           Current                                                                                   Proposed

                                                                          Proprietary product volume                   Transaction fee                                Proprietary product volume                   Transaction fee
                                                      Tier                                                                                        Tier
                                                                                  thresholds                             per contract                                         thresholds                             per contract

                                                   ≥20,000 ADV ≤79,999 ADV in multi list products                                              ≥25,000 ADV ≤69,999 ADV in multi list products

                                                  B3 ............   0.00%–6.50% ...................................                 $0.20     B3 ............   0.00%–6.50% ...................................               $0.22
                                                  B2 ............   6.51%–8.50% ...................................                  0.10     B2 ............   6.51%–8.50% ...................................                0.12
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                                                  B1 ............   Above 8.50% ....................................                 0.02     B1 ............   Above 8.50% ....................................              $0.05


                                                    18 See 15 U.S.C. 78s(b)(2).                                      3 The Exchange initially filed the proposed fee            4 As of December 31, 2015, Underlying Symbol

                                                    19 See 17 CFR 200.30–3(a)(12).                                changes on January 4, 2016 (SR–CBOE–2016–001).              List A includes the following products: OEX, XEO,
                                                    1 15 U.S.C. 78s(b)(1).                                        On January 27, 2016, the Exchange withdrew that             RUT, RLV, RLG, RUI, SPX (including SPXw),
                                                                                                                  filing and replaced it with SR–CBOE–2016–006. On            SPXpm, SRO, VIX, VXST, VOLATILITY INDEXES
                                                    2 17 CFR 240.19b–4.
                                                                                                                  February 4, 2016, the Exchange withdrew that filing
                                                                                                                                                                              and binary options.
                                                                                                                  and submitted this filing.



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Document Created: 2016-02-13 03:13:29
Document Modified: 2016-02-13 03:13:29
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation81 FR 7865 

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