[Federal Register Volume 76, Number 44 (Monday, March 7, 2011)]
[Notices]
[Pages 12380-12384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5024]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-63999; File No. SR-FINRA-2010-061]
Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing of Amendment No. 1 and Order Granting
Accelerated Approval of a Proposed Rule Change Adopting, as Modified by
Amendment No. 1, Rules Governing Guarantees, Carrying Agreements,
Security Counts and Supervision of General Ledger Accounts in the
Consolidated FINRA Rulebook
March 1, 2011.
I. Introduction
On November 12, 2010, 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 adopt rules governing
guarantees, carrying agreements, security counts and supervision of
general ledger accounts in the consolidated FINRA Rulebook. The
proposed rule change was published for comment in the Federal Register
on November 24, 2010.\3\ The Commission received one comment letter on
the proposed rule change.\4\ On February 24, 2011, FINRA responded to
the comments and filed Amendment No. 1 to the proposed rule change.\5\
The Commission is publishing this notice and order to solicit comments
on Amendment No. 1 and to approve the
[[Page 12381]]
proposed rule change, as modified by Amendment No. 1, on an accelerated
basis.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Exchange Act Release No. 63375 (November 24, 2010), 75
FR 74759 (December 1, 2010) (Notice of Filing of Proposed Rule
Change; File No. SR-FINRA-2010-061) (``Notice'').
\4\ See Letter from D. Grant Vingoe, Arnold & Porter LLP
(``Arnold & Porter''), to Elizabeth M. Murphy, Secretary, SEC, dated
December 22, 2010 (available at http://www.sec.gov/comments/sr-finra-2010-061/finra2010061.shtml).
\5\ See Amendment No. 1 dated February 24, 2011 (``Amendment No.
1'') and FINRA's response to comments, dated February 24, 2011
(``Response to Comments''), which are available on FINRA's Web site
at http://www.finra.org, at the principal office of FINRA, and on
the Commission's Web site at http://www.sec.gov/rules/sro.shtml.
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II. Description of Proposed Rule Change, as Modified by Amendment No. 1
A. Background
1. Purpose
As part of the process of developing a new consolidated rulebook
(``Consolidated FINRA Rulebook''),\6\ FINRA is proposing to adopt new,
consolidated rules governing guarantees, carrying agreements, security
counts and supervision of general ledger accounts. FINRA proposes to
adopt FINRA Rules 4150 (Guarantees by, or Flow Through Benefits for,
Members), 4311 (Carrying Agreements), 4522 (Periodic Security Counts,
Verifications and Comparisons) and 4523 (Assignment of Responsibility
for General Ledger Accounts and Identification of Suspense Accounts) in
the Consolidated FINRA Rulebook and to delete NASD Rule 3230, NYSE
Rules 322, 382, 440.10 and 440.20 and NYSE Rule Interpretations 382/01
through 382/05, 409(a)/01 and 440.20/01.\7\
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\6\ The current FINRA rulebook consists of: (1) FINRA Rules; (2)
NASD Rules; and (3) rules incorporated from NYSE (``Incorporated
NYSE Rules'') (together, the NASD Rules and Incorporated NYSE Rules
are referred to as the ``Transitional Rulebook''). While the NASD
Rules generally apply to all FINRA members, the Incorporated NYSE
Rules apply only to those members of FINRA that are also members of
the NYSE (``Dual Members''). The FINRA Rules apply to all FINRA
members, unless such rules have a more limited application by their
terms. For more information about the rulebook consolidation
process, see Information Notice, March 12, 2008 (Rulebook
Consolidation Process).
\7\ For convenience, the Incorporated NYSE Rules are referred to
as the ``NYSE Rules.''
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The proposed rules would, in combination with other consolidated
financial responsibility rules approved by the SEC,\8\ enhance FINRA's
authority to execute effectively its financial and operational
surveillance and examination programs. Consistent with the approach
that FINRA discussed in SR-FINRA-2008-067 and Regulatory Notice 09-71,
many of the requirements set forth in the proposed rules are
substantially the same as requirements found in current rules and,
where appropriate, are tiered to apply only to carrying or clearing
firms, or to firms that engage in certain specified activities.\9\
Certain of the proposed rule provisions are new for FINRA members that
are not Dual Members (``non-NYSE members''). Certain other provisions
are new for both Dual Members and non-NYSE members alike.
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\8\ See Exchange Act Release No. 60933 (November 4, 2009), 74 FR
58334 (November 12, 2009) (Order Granting Accelerated Approval to
Proposed Rule Change; File No. SR-FINRA-2008-067). See also
Regulatory Notice 09-71 (December 2009) (SEC Approves Consolidated
FINRA Rules Governing Financial Responsibility) and Regulatory
Notice 09-03 (January 2009) (Financial Responsibility and Related
Operational Rules).
\9\ For purposes of the new consolidated financial
responsibility rules and the proposed rules, FINRA has specified in
the rule text where appropriate that all requirements that apply to
a member that clears or carries customer accounts also apply to any
member that, operating pursuant to the exemptive provisions of
Exchange Act Rule 15c3-3(k)(2)(i), either clears customer
transactions pursuant to such exemptive provisions or holds customer
funds in a bank account established thereunder. For further
discussion, see 74 FR 58334. See also proposed FINRA Rule 4523.02 in
this rule filing.
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In Amendment No. 1, FINRA proposes new Supplementary Material .04
to Rule 4311. This Supplementary Material is technical in nature. It is
intended to remind members that, for purposes of paragraphs (c)(1)(F)
and (c)(2) of Rule 4311, the receipt and delivery of customers' funds
and securities and the safeguarding of such funds and securities must
comply with the requirements of the SEC's financial responsibility
rules, in particular Exchange Act Rule 15c3-3 and applicable SEC
guidance. Amendment No. 1 would redesignate the original Supplementary
Material .04 as .05.
2. Proposed Amendments
FINRA proposes the following amendments to its rules.
(A) Proposed FINRA Rule 4150 (Guarantees by, or Flow Through Benefits
for, Members)
As stated in the Notice, Proposed Rule 4150(a) is based in large
part on NYSE Rule 322.\10\ Proposed Rule 4150(a) requires that prior
written notice be given to FINRA whenever a member guarantees, endorses
or assumes, directly or indirectly, the obligations \11\ or liabilities
of another person (including an entity).\12\ Paragraph (b) of the rule
requires that prior written approval must be obtained from FINRA
whenever any member receives flow-through capital benefits in
accordance with Appendix C of Exchange Act Rule 15c3-1.\13\
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\10\ NASD Rules do not have a provision that corresponds to NYSE
Rule 322. Accordingly, the requirements of proposed FINRA Rule 4150
would be new to non-NYSE members.
\11\ FINRA noted that the term ``obligations'' includes
financial obligations, as well as other obligations that may have a
financial impact on a member, such as performance obligations.
\12\ NASD Rule 0120(n) defines ``person'' to include any natural
person, partnership, corporation, association, or other legal
entity. Similarly, NYSE Rule 2(d) states that ``person'' means a
natural person, corporation, limited liability company, partnership,
association, joint stock company, trust, fund or any organized group
of persons whether incorporated or not. All references to
``persons'' in this filing include entities.
\13\ FINRA notes the proposed rule is designed to align with the
requirements of Appendix C.
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(B) Proposed FINRA Rule 4311 (Carrying Agreements)
Proposed FINRA Rule 4311 is based on NASD Rule 3230 and NYSE Rule
382.\14\ The proposed rule governs the requirements applicable to
members when entering into agreements for the carrying of any customer
accounts in which securities transactions can be effected.
Historically, the purpose of the NASD and NYSE rules upon which the
proposed rule is based has been to ensure that certain functions and
responsibilities are clearly allocated to either the introducing or
carrying firm, consistent with the requirements of the self-regulatory
organization and SEC's financial responsibility and other rules and
regulations, as applicable.\15\
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\14\ Proposed FINRA Rule 4311 also is based on NYSE Rule
Interpretations 382/01 through/05 and 409(a)/01.
\15\ See, e.g., Notice to Members 94-7 (February 1994) (SEC
Approves New NASD Rule Relating to the Obligations and
Responsibilities of Introducing and Clearing Firms) and NYSE
Information Memo 82-18 (March 1982) (Carrying Agreements--Amendments
to Rules 382 and 405).
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As discussed in the Notice, Proposed FINRA Rule 4311(a)(1)
prohibits a member, unless otherwise permitted by FINRA, from entering
into an agreement for the carrying on an omnibus or fully disclosed
basis, of any customer account in which securities transactions can be
effected, unless the agreement is with a carrying firm that is a FINRA
member.
Proposed FINRA Rule 4311(b)(1) requires that the carrying firm must
submit to FINRA for prior approval any agreement for the carrying of
accounts, whether on an omnibus or fully disclosed basis, before such
agreement may become effective.\16\ The proposed rule also provides
that the carrying firm must submit to FINRA for prior approval any
material changes to an approved carrying agreement before the changes
may become effective. The proposed rule codifies the practice under
NASD Rule 3230 of permitting use of pre-approved standardized forms of
agreement, with the exception of agreements with parties that are not
U.S.-registered broker-dealers. The proposed rule requires a carrying
firm to submit to FINRA for approval each carrying agreement with a
non-U.S.-registered broker-dealer.
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\16\ Proposed FINRA Rule 4311(b)(1) is consistent with the
requirements of NASD Rule 3230(e) and NYSE Rule 382(a).
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FINRA Rule 4311(b)(3) codifies the current practice under NYSE Rule
382 of requiring that as early as possible, but
[[Page 12382]]
not later than 10 business days, prior to the carrying of any accounts
of a new introducing firm (including the accounts of any piggyback or
intermediary introducing firm(s)), the carrying firm must submit to
FINRA a notice identifying each such introducing firm by name and CRD
number and include such additional information as FINRA may
require.\17\ FINRA Rule 4311(b)(4) expressly requires each carrying
firm to conduct appropriate due diligence with respect to any new
introducing firm relationship. The rule provides that such due
diligence must assess the financial, operational, credit and
reputational risk that such arrangement will have upon the carrying
firm. The rule also provides that FINRA, in its review of any
arrangement, may in its discretion require specific items to be
addressed by the carrying firm as part of the firm's due diligence
requirement under the rule. The rule further provides that the carrying
firm must maintain a record, in accord with the time frames prescribed
by Exchange Act Rule 17a-4(b), of the due diligence conducted for each
new introducing firm.
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\17\ This is a new requirement for non-NYSE carrying members,
and permits FINRA to obtain additional information that enables it
to evaluate the impact of the new carrying arrangement on the
financial and operational condition of the member.
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Proposed FINRA Rule 4311(c) requires that each carrying agreement
in which accounts are to be carried on a fully disclosed basis must
specify the responsibilities of each party to the agreement.\18\ The
proposed rule also requires each carrying agreement in which accounts
are to be carried on a fully disclosed basis to expressly allocate to
the carrying firm the responsibility for preparing and transmitting
statements of account to customers.
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\18\ Proposed FINRA Rule 4311(c) is based in part on NASD Rule
3230(a) and NYSE Rule 382(b).
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FINRA Proposed Rule 4311(d) requires that each customer whose
account is introduced on a fully disclosed basis must be notified in
writing upon the opening of the account of the existence of the
carrying agreement and the responsibilities allocated to each
respective party.\19\
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\19\ Proposed FINRA Rule 4311(d) is based in part on NASD Rule
3230(g), NYSE Rule 382(c), and NYSE Rule Interpretation 382/03.
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Proposed FINRA Rule 4311(e) requires that each carrying agreement
must expressly state that to the extent that a particular
responsibility is allocated to one party, the other party or parties
will supply to the responsible organization all appropriate data in
their possession pertinent to the proper performance and supervision of
that responsibility.\20\
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\20\ This is a new requirement for non-NYSE members.
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Proposed FINRA Rule 4311(f) provides that a carrying agreement may
authorize an introducing firm to issue negotiable instruments directly
to its customers on the carrying firm's behalf, using instruments for
which the carrying firm is the maker or drawer, provided that the
parties comply with Exchange Act Rule 15c3-3 and further that the
introducing firm represents to the carrying firm in writing that the
introducing firm maintains, and will enforce, supervisory policies and
procedures with respect to such negotiable instruments that are
satisfactory to the carrying firm.\21\
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\21\ Proposed FINRA Rule 4311(f) is based in part on NASD Rule
3230(d) and NYSE Rule 382(f).
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Proposed FINRA Rules 4311(g) and 4311(h) generally address
obligations of parties to provide referenced information, such as any
written customer complaints and exception reports, to each other and/or
to FINRA and are based upon existing NASD and NYSE rule provisions.
Proposed FINRA Rule 4311(i) provides that all carrying agreements
must require each introducing firm to maintain its proprietary and
customer accounts, and the proprietary and customer accounts of any
introducing firm for which it is acting as an intermediary in obtaining
clearing services from the carrying firm, in such a manner as to enable
the carrying firm and FINRA to specifically identify the proprietary
and customer accounts belonging to each introducing firm.\22\
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\22\ Proposed FINRA Rule 4311(i) is based largely on NASD Rule
3230(h) and does not have a corresponding provision in NYSE Rule
382.
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(C) Proposed FINRA Rule 4522 (Periodic Security Counts, Verifications
and Comparisons)
Proposed FINRA Rule 4522(a) requires each member firm that is
subject to the requirements of Exchange Act Rule 17a-13 to make the
counts, examinations, verifications, comparisons, and entries set forth
in that rule.\23\ Proposed FINRA Rule 4522(b) requires each carrying or
clearing member subject to Exchange Act Rule 17a-13 to make more
frequent counts, examinations, verifications, comparisons, and entries
where prudent business practice would so require.\24\
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\23\ Proposed FINRA Rule 4522(a) is based in part on NYSE Rule
440.10.
\24\ Id.
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(D) Proposed FINRA Rule 4523 (Assignment of Responsibility for General
Ledger Accounts and Identification of Suspense Accounts)
Proposed FINRA Rule 4523 is intended to help assure the accuracy of
each member's books and records.\25\ Proposed FINRA Rule 4523(a)
requires that each member must designate an associated person to be
responsible for each general ledger bookkeeping account and account of
similar function used by the member. The associated person must control
and oversee entries into each such account and determine that the
account is current and accurate as necessary to comply with all
applicable FINRA rules and federal securities laws governing books and
records and financial responsibility requirements.
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\25\ Proposed FINRA Rule 4523 is based on NYSE Rule 440.20. NASD
Rules do not have a provision that corresponds to NYSE Rule 440.20;
therefore, the requirements of proposed FINRA Rule 4523 are new to
non-NYSE members.
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Proposed FINRA Rule 4523(b) requires that each carrying or clearing
member must maintain a record of the name of each individual assigned
primary and supervisory responsibility for each account as required by
paragraph (a) of the rule.
Proposed FINRA Rule 4523(c) provides that each member must record,
in an account that must be clearly identifiable as a suspense account,
money charges or credits and receipts or deliveries of securities whose
ultimate disposition is pending determination.
(E) Implementation Date
FINRA will announce the implementation date of these proposed rule
changes in a Regulatory Notice to be published no later than 90 days
following Commission approval. The implementation date will be no later
than 120 days following publication of the Regulatory Notice announcing
Commission approval.
III. Summary of Comment Letter and FINRA's Response
The proposed rule change was published for comment in the Federal
Register on November 24, 2010, and the comment period closed on
December 22, 2010. The Commission received one comment letter in
response to the proposing release, the Arnold & Porter letter.\26\
Arnold & Porter expressed concerns about the scope of proposed FINRA
Rule 4311. Specifically, the commenter suggested that proposed FINRA
Rule 4311 was not clear as to whether a FINRA member firm that
[[Page 12383]]
operates pursuant to the exemptive provision of Exchange Act Rule 15c3-
3(k)(2)(i) is engaged in carrying activity and, thereby, subject to the
rule. In FINRA's response, it noted that FINRA had specified in the
rule text where appropriate those requirements of the proposed rule
which are intended to apply to firms that operate pursuant to the
exemptive provisions of Exchange Act Rule 15c3-3(k)(2)(i).\27\
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\26\ See supra note 4.
\27\ See also Notice, note 6, at FR 74760 (stating, ``[f]or
purposes of the new consolidated financial responsibility rules and
the proposed rules, FINRA has specified in the rule text where
appropriate that all requirements that apply to a member that clears
or carries customer accounts also apply to any member that,
operating pursuant to the exemptive provisions of SEA Rule 15c3-
3(k)(2)(i), either clears customer transactions pursuant to such
exemptive provisions or holds customer funds in a bank account
established thereunder.'').
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The Arnold & Porter letter also raised concerns as to whether
proposed FINRA Rule 4311 impacts the status of DVP/RVP clearance and
settlement arrangements across international borders that may be
structured as omnibus accounts where U.S.-registered broker-dealers
seek to designate these accounts at a foreign affiliate as approved
foreign control locations under Exchange Act Rule 15c3-3. As FINRA
stated in its response, the proposed rule applies to arrangements to
carry customer accounts and is ``not meant to address the substantive
requirements of SEA Rule 15c3-3(c) as it applies to good control
locations nor to apply to cross-border clearance and settlement
arrangements that are structured on a basis that is permissible under
and consistent with SEC rules.'' \28\
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\28\ See Response to Comments.
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Finally, FINRA noted that the propriety of structuring cross-border
clearance and settlement arrangements in the manner described by the
commenter, and the propriety of a U.S.-registered broker-dealer's
reliance on Exchange Act Rule 15c3-3(k)(2)(i) for various business
activities, were outside the scope of the proposed rule change.\29\
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\29\ Id.
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IV. Discussion and Commission Findings
The Commission has carefully considered the proposed rule change,
as modified by Amendment No. 1, the comment letter received, and
FINRA's response, and 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.\30\ In particular, the Commission finds that the proposal
is consistent with Section 15A(b)(6) of the Exchange Act,\31\ which
requires, among other things, that the rules of a national securities
association be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, protect investors and the
public interest.
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\30\ In approving this proposed rule change, the Commission
notes that it has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
\31\ 15 U.S.C. 78o-3(b)(6).
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The Commission believes that FINRA adequately addressed the
concerns raised by the commenter in its response. Further, the rule
language in Amendment No. 1 reminds FINRA members that, for purposes of
paragraphs (c)(1)(F) and (c)(2) of Rule 4311, the receipt and delivery
of customers' funds and securities and the safeguarding of such funds
and securities must comply with the requirements of the SEC's financial
responsibility rules, in particular Exchange Act Rule 15c3-3 and
applicable SEC guidance. The Commission believes the proposed rule
change, as modified by Amendment No. 1, will further the purposes of
the Exchange Act by, among other things, clarifying and streamlining
the requirements surrounding carrying agreements, as well as the rules
governing guarantees, security counts, and supervision of general
ledger accounts.
V. Accelerated Approval
The Commission finds good cause, pursuant to Section 19(b)(2) of
the Exchange Act,\32\ for approving the proposed rule change, as
modified by Amendment No. 1 thereto, prior to the 30th day after
publication of Amendment No. 1 in the Federal Register. The changes
proposed in Amendment No. 1 add clarity to Rule 4311 and do not raise
novel regulatory concerns. In particular, Amendment No. 1 further
reminds FINRA members that, for purposes of paragraphs (c)(1)(F) and
(c)(2) of Rule 4311, receipt and delivery of customers' funds and
securities and the safeguarding of such funds and securities must
comply with the requirements of the SEC's financial responsibility
rules, in particular Exchange Act Rule 15c3-3 and applicable SEC
guidance.
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\32\ 15 U.S.C. 78s(b)(2).
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Accordingly, the Commission finds that good cause exists to approve
the proposal, as modified by Amendment No. 1, on an accelerated basis.
VI. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether Amendment No. 1
to the proposed rule change is consistent with the Exchange Act.
Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an e-mail to [email protected]. Please include
File Number SR-FINRA-2010-061 on the subject line.
Paper Comments
Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090. All submissions should refer to File Number
SR-FINRA-2010-061. This file number should be included on the subject
line if e-mail is used. To help the Commission process and review your
comments more efficiently, please use only one method. The Commission
will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent
amendments, all written statements with respect to the proposed rule
change that are filed with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for Web site viewing and printing in the Commission's Public
Reference Room, 100 F Street, NE., Washington, DC 20549, on official
business days between the hours of 10 a.m. and 3 p.m. Copies of such
filing also will be available for inspection and copying at the
principal office of FINRA. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to File Number
SR-FINRA-2010-061 and should be submitted on or before March 28, 2011.
[[Page 12384]]
VII. Conclusion
It is therefore ordered, pursuant to Section 19(b)(2) of the
Exchange Act,\33\ that the proposed rule change (SR-FINRA-2010-061), as
modified by Amendment No. 1, be, and hereby is, approved on an
accelerated basis.
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\33\ 15 U.S.C. 78(b)(2).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\34\
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\34\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-5024 Filed 3-4-11; 8:45 am]
BILLING CODE 8011-01-P