[Federal Register Volume 74, Number 101 (Thursday, May 28, 2009)]
[Notices]
[Pages 25586-25593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12342]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59955; File No. SR-FINRA-2009-012]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing and Order Granting Accelerated 
Approval of Proposed Rule Change, as Modified by Amendment No. 1, To 
Implement an Interim Pilot Program With Respect to Margin Requirements 
for Certain Transactions in Credit Default Swaps

May 22, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on March 11, 2009, Financial Industry Regulatory Authority, Inc. 
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc. 
(``NASD'')) filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') the proposed rule change as described in Items I and 
II below, which Items substantially have been prepared by FINRA. On May 
19, 2009, FINRA submitted Amendment No. 1 to the proposed rule change. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons and is simultaneously 
approving the proposed rule change as amended on an accelerated basis 
to establish an interim pilot program.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to adopt FINRA Rule 4240 (Margin Requirements 
for Credit Default Swaps). The proposed rule would implement an interim 
pilot program (the ``Interim Pilot Program'') with respect to margin 
requirements for transactions in credit default swaps (``CDS'') 
executed by a member (regardless of the type of account in which the 
transaction is booked), including those in which the offsetting 
matching hedging transactions (``matching transactions'') are effected 
by the member in CDS contracts that are cleared through the central 
counterparty clearing services of the Chicago Mercantile Exchange (the 
``CME''). The proposed rule would expire on September 25, 2009.
    The text of the proposed rule change is available on FINRA's Web 
site at http://www.finra.org, at the principal office of FINRA and at 
the Commission's Public Reference Room.

[[Page 25587]]

In addition, the text of the proposed rule change is set forth below. 
New language is in italics.
* * * * *

4000. FINANCIAL AND OPERATIONAL RULES

* * * * *

4200. MARGIN

* * * * *

4240. Margin Requirements for Credit Default Swaps

(a) Effective Period of Interim Pilot Program

    This Rule establishes an interim pilot program (``Interim Pilot 
Program'') with respect to margin requirements for any transactions in 
credit default swaps executed by a member (regardless of the type of 
account in which the transaction is booked), including those in which 
the offsetting matching hedging transactions (``matching 
transactions'') are effected by the member in contracts that are 
cleared through the central counterparty clearing services of the 
Chicago Mercantile Exchange (``CME''). The Interim Pilot Program shall 
automatically expire on September 25, 2009. For purposes of this Rule, 
the term ``credit default swap'' (``CDS'') shall mean any ``eligible 
credit default swap'' as defined in Securities Act Rule 239T(d), as 
well as any other CDS that would otherwise meet such definition but for 
being subject to individual negotiation, and the term ``transaction'' 
shall include any ongoing CDS position.

(b) Central Counterparty Clearing Arrangements

    Any member, prior to establishing any clearing arrangement with 
respect to CDS transactions that makes use of any central counterparty 
clearing services provided by any clearing agency, pursuant to 
Securities Act Rule 239T(a)(1), must notify FINRA in advance in 
writing, in such manner as may be specified by FINRA in a Regulatory 
Notice.

(c) Margin Requirements

(1) CDS Cleared on the Chicago Mercantile Exchange

    Members shall require as a minimum for computing customer or 
broker-dealer margin, with respect to any customer or broker-dealer 
transaction in CDS with a member in which the member executes a 
matching transaction that makes use of the central counterparty 
clearing facilities of the CME (``CME matching customer-side 
transaction''), the applicable margin pursuant to CME rules (sometimes 
referred to in such rules as a ``performance bond'') regardless of the 
type of account in which the transaction in CDS is booked. Members 
shall, based on the risk monitoring procedures and guidelines set forth 
in paragraph (d) of this Rule, determine whether the applicable CME 
requirements are adequate with respect to their customer and broker-
dealer accounts and the positions in those accounts and, where 
appropriate, increase such margin in excess of such minimum margin. For 
this purpose, members are permitted to use the margin requirements set 
forth in Supplementary Material .01 of this Rule.
    The aggregate amount of margin the member collects from customers 
and broker-dealers for transactions in CDS must equal or exceed the 
aggregate amount of margin the member is required to post at CME with 
respect to those customer and broker-dealer transactions.
    CME matching customer-side transactions are not subject to the 
provisions of paragraph (c)(2) of this Rule.

(2) CDS That Are Cleared on Central Counterparty Clearing Facilities 
Other Than the CME or That Settle Over-the-Counter (``OTC'')

    Members shall require, with respect to any transaction in CDS that 
makes use of central counterparty clearing facilities other than the 
CME or that settle OTC, the applicable minimum margin as set forth in 
Supplementary Material .01 of this Rule regardless of the type of 
account in which the transaction in CDS is booked. However, members 
shall, based on the risk monitoring procedures and guidelines set forth 
in paragraph (d) of this Rule, determine whether such margin is 
adequate with respect to their customer and broker-dealer accounts and, 
where appropriate, increase such requirements.

(d) Risk Monitoring Procedures and Guidelines

    Members shall monitor the risk of any customer or broker-dealer 
accounts with exposure to CDS and shall maintain a comprehensive 
written risk analysis methodology for assessing the potential risk to 
the member's capital over a specified range of possible market 
movements over a specified time period. For purposes of this Rule, 
members must employ the risk monitoring procedures and guidelines set 
forth in paragraphs (d)(1) through (8) of this Rule. The member must 
review, in accordance with the member's written procedures, at 
reasonable periodic intervals, the member's credit extension activities 
for consistency with the risk monitoring procedures and guidelines set 
forth in this Rule, and must determine whether the data necessary to 
apply the risk monitoring procedures and guidelines is accessible on a 
timely basis and information systems are available to adequately 
capture, monitor, analyze and report relevant data, including:
    (1) obtaining and reviewing the required account documentation and 
financial information necessary for assessing the amount of credit to 
be extended to customers and broker-dealers;
    (2) assessing the determination, review and approval of credit 
limits to each customer and broker-dealer, and across all customers and 
broker-dealers, engaging in CDS transactions;
    (3) monitoring credit risk exposure to the member from CDS, 
including the type, scope and frequency of reporting to senior 
management;
    (4) the use of stress testing of accounts containing CDS contracts 
in order to monitor market risk exposure from individual accounts and 
in the aggregate;
    (5) managing the impact of credit extended related to CDS contracts 
on the member's overall risk exposure;
    (6) determining the need to collect additional margin from a 
particular customer or broker-dealer, including whether that 
determination was based upon the creditworthiness of the customer or 
broker-dealer and/or the risk of the specific contracts;
    (7) monitoring the credit exposure resulting from concentrated 
positions within both individual accounts and across all accounts 
containing CDS contracts; and
    (8) maintaining sufficient margin in each customer and broker-
dealer account to protect against the default of the largest individual 
exposure in the account as measured by computing the largest maximum 
possible loss.

(e) Concentrations

    Where the maximum current and potential exposure with respect to 
the largest single name CDS across all accounts exceeds the member's 
tentative net capital, the member must take a capital charge equal to 
the aggregate margin requirement for such accounts on the positions in 
such single name CDS in accordance with the tables set forth in 
Supplementary Material .01 of this Rule. This capital charge may be 
reduced by the amount of excess margin held in all customer and broker-
dealer accounts.

[[Page 25588]]

* * * Supplementary Material:

    .01 Margin Requirements for CDS. The following customer and broker-
dealer margin requirements shall apply, as appropriate, pursuant to 
paragraph (c) of this Rule.

(a) Customer and Broker-Dealer Accounts That Are Short a CDS

    The following table shall be used to determine the margin that a 
member must collect from a customer or broker-dealer that is short a 
single name debt security CDS contract (sold protection). The margin is 
to be collected based upon the basis point spread over LIBOR of the CDS 
contract as well as the maturity of that contract as a percentage of 
the notional amount, shall be as follows:

----------------------------------------------------------------------------------------------------------------
                                                                Length of time to maturity of CDS contract (in
                                                                                   percent)
                     Basis point spread                      ---------------------------------------------------
                                                                                                      7 years &
                                                                 1 year      3 years      5 years       longer
----------------------------------------------------------------------------------------------------------------
0-100.......................................................            1            2            4            7
100-300.....................................................            2            5            7           10
300-500.....................................................            5           10           15           20
500-700.....................................................           10           15           20           25
700 and above...............................................           15           20           25           30
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    For those CDS contracts where the underlying obligation is a debt 
index, rather than a single name bond, the margin requirement as a 
percentage of the notional amount shall be as follows:

----------------------------------------------------------------------------------------------------------------
                                                     Length of time to maturity of CDS contract (in percent)
                     Index                      ----------------------------------------------------------------
                                                    1 year      3 years      5 years      7 years      10 years
----------------------------------------------------------------------------------------------------------------
CDX.IG.........................................            1            1            2            4            5
CDX.HY.........................................            3            5           10           12           15
CDX.HVOL.......................................            2            3            4            5            7
----------------------------------------------------------------------------------------------------------------

(b) Accounts That Are Long a CDS

    For customer or broker-dealer accounts that are long the CDS 
contracts (purchased protection), the margin to be collected shall be 
50% of the above amounts.

(c) Accounts That Maintain Both Long and Short CDS

    In instances where the customer or broker-dealer maintains both 
long and short CDS, the member may elect to collect 50% of the above 
margin requirements on the greater of the long or short position within 
the same Bloomberg CDS sector, provided those long and short positions 
are in the same spread and maturity bucket.
    If a customer or broker-dealer is long the bond and long a CDS 
contract on the same underlying obligor, margin needs to be collected 
only on the long bond position, provided that bond can be delivered 
against the long CDS contract, as prescribed pursuant to applicable 
FINRA margin rules.
    In instances where the customer or broker-dealer is short the bond 
and short the CDS on the same underlying obligor, margin need only be 
collected on the short bond, as prescribed pursuant to applicable FINRA 
margin rules.
* * * * *

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. FINRA has prepared summaries, set forth in sections A, 
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    FINRA is proposing to adopt FINRA Rule 4240 (Margin Requirements 
for Credit Default Swaps). The proposed rule would implement an Interim 
Pilot Program with respect to margin requirements for transactions in 
CDS executed by a member (regardless of the type of account in which 
the transaction is booked), including those in which matching 
transactions are effected by the member in CDS contracts that are 
cleared through the central counterparty clearing services of the CME. 
The proposed rule would expire on September 25, 2009.
(A). Background
    On March 13, 2009, the Commission issued an Order granting 
temporary exemptions under the Exchange Act in response to a request by 
CME and Citadel Investment Group, LLC with respect to their proposal 
for CME to provide clearance and settlement services as a central 
counterparty for certain transactions in CDS.\3\ The Commission issued 
similar Orders to LCH.Clearnet Ltd \4\ and ICE U.S. Trust LLC.\5\ The 
Commission also recently enacted interim final temporary rules 
providing enumerated exemptions under the federal securities laws for 
certain CDS to facilitate the operation of one or more central clearing 
counterparties in such CDS.\6\ Finally,

[[Page 25589]]

the Commission has provided temporary exemptions in connection with 
Sections 5 and 6 of the Exchange Act for transactions in non-excluded 
CDS \7\ (these Commission actions are hereinafter referred to 
collectively as the ``Commission's CDS Relief''). The Commission noted 
that these measures were intended to address concerns arising from 
systemic risk posed by CDS, including, among others, risks to the 
financial system arising from the lack of a central clearing 
counterparty to clear and settle CDS.\8\
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    \3\ See Securities Exchange Act Release No. 59578 (Mar. 13, 
2009), 74 FR 11781 (Mar. 19, 2009).
    \4\ See Securities Exchange Act Release No. 59164 (Dec. 24, 
2008), 74 FR 139 (Jan. 2, 2009).
    \5\ See Securities Exchange Act Release No. 59527 (Mar. 6, 
2009), 74 FR 10791 (Mar. 12, 2009).
    \6\ See Securities Act Release No. 8999 (Jan. 14, 2009), 74 FR 
3967 (Jan. 22, 2009) (Temporary Exemptions for Eligible Credit 
Default Swaps To Facilitate Operation of Central Counterparties To 
Clear and Settle Credit Default Swaps). Generally, as noted by the 
Commission, a CDS is a bilateral contract between two parties, known 
as counterparties. The value of this contract is based on underlying 
obligations of a single entity or on a particular security or other 
debt obligation, or an index of several such entities, securities, 
or obligations. The obligation of a seller to make payments under a 
CDS contract is triggered by a default or other credit event as to 
such entity or entities or such security or securities.
    \7\ See Securities Exchange Act Release No. 59165 (Dec. 24, 
2008), 74 FR 133 (Jan. 2, 2009).
    \8\ See supra, notes 3, 4, 5, 6, and 7.
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    Historically, in the absence of a central clearing counterparty, 
CDS transactions entered into by U.S. investment banks have not been 
booked in the member, but rather in the affiliated entities. In light 
of the rapid growth of the CDS market, and the potential inability of 
parties to meet their obligations as counterparties, the lack of a 
central clearing counterparty poses risks not only to the two parties 
to a CDS transaction, but also to the financial system overall because 
of the resulting chain of significant economic loss when one or more 
parties default on their obligations under a CDS transaction.
    As discussed above, the Commission has issued exemptive Orders to 
allow three entities to act as CDS central clearing counterparties. Of 
these, the CME has requested that FINRA adopt customer margin rules for 
CDS and suggested a specific customer margin methodology that could be 
employed.\9\ FINRA performed an analysis of the margin methodology 
suggested by CME, as well as the alternative methodology for CDS \10\ 
prior to proposing Rule 4240. FINRA believes it is appropriate to adopt 
the proposed customer margin rule for CDS transactions during a limited 
pilot period for the reasons described below; however, FINRA represents 
that it will consider proposals it receives from other CDS central 
clearing counterparties to amend its customer margin rules for CDS and, 
if appropriate, will propose changes to its customer margin rules for 
CDS.\11\
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    \9\ The methodology CME proposed was amended based on FINRA's 
analysis. FINRA's proposed rule sets forth additional requirements. 
See Proposed FINRA Rule 4240(c)(1).
    \10\ See Proposed FINRA Rule 4240(c)(2).
    \11\ Based on communications on or about April 22, 2009 between 
Bonnie Gauch of the Commission's Division of Trading and Markets and 
Grace Vogel of FINRA.
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    Accordingly, FINRA proposes to adopt Proposed FINRA Rule 4240, 
which would impose margin rules for certain CDS transactions. The 
Interim Pilot Program is intended to be coterminous with the 
Commission's CDS Relief and would expire on September 25, 2009.
    FINRA requests comment on the proposed rule during the period of 
the Interim Pilot Program. Among other matters that commenters may wish 
to address, FINRA is particularly interested in the following 
questions:
    1. Since historically CDS transactions have not been undertaken in 
broker-dealers and therefore have not exposed broker-dealers to the 
risks of such transactions, is the advent of broker-dealer 
participation in these transactions, which entails greater individual 
risks to broker-dealers but which fosters less systemic risk because of 
the existence of a central clearing party for the matching transaction, 
a correct balancing of risks as a matter of public policy?
    2. Do commenters believe that different or amended margin 
provisions would be superior to those set forth in the proposed rule?
(B). Proposal
(1) Scope of the Proposed Rule
    Proposed FINRA Rule 4240(a) provides that the Interim Pilot Program 
would apply to margin requirements for any transactions in CDS executed 
by a member (regardless of the type of account in which the transaction 
is booked), including those in which the matching transactions are 
effected by the member in contracts that are cleared through the 
central clearing counterparty clearing services of the CME. FINRA notes 
that matching transactions that are cleared through the CME as the 
central clearing counterparty would be subject to margin requirements 
pursuant to CME rules (sometimes referred to in such rules as 
``performance bond''). Accordingly, with respect to these matching 
transactions, the proposed rule is intended to apply to the side of the 
CDS transaction--executed between a member and a customer or other 
broker-dealer \12\--that is not cleared through the CME.\13\
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    \12\ NASD Rule 0120(g) states that the term ``customer'' shall 
not include a broker or dealer. For purposes of the proposed rule, 
the terms ``customer or broker-dealer'' and ``customer and broker-
dealer'' are intended to include any party with which a member 
executes a CDS transaction.
    \13\ Under Proposed FINRA Rule 4240(c)(1), such transactions are 
defined as ``CME matching customer-side transactions.'' See Section 
(B)(3) under this Item. Under Proposed FINRA Rule 4240(c)(1), the 
term ``CME matching customer-side transaction'' would include any 
party, including a broker-dealer.
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    Proposed FINRA Rule 4240(a) would define the term ``CDS'' for 
purposes of the rule. Specifically, CDS would include any ``eligible 
credit default swap'' as defined in Securities Act Rule 239T(d),\14\ as 
well as any other CDS that would otherwise meet such definition but for 
being subject to individual negotiation.\15\ In addition, the proposed 
rule provides that, for purposes of the rule, the term ``transaction'' 
includes any ongoing CDS position.
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    \14\ 17 CFR 230.239T(d).
    \15\ FINRA notes that Rule 239T(d) excludes contracts that are 
``subject to individual negotiation.'' The proposed FINRA rule would 
reach CDS contracts, subject to the other criteria set forth in Rule 
239T(d), without regard to whether they are individually negotiated.
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    Proposed FINRA Rule 4240(a) provides that the Interim Pilot Program 
would automatically expire on September 25, 2009.
(2) Central Counterparty Clearing Arrangements
    Proposed FINRA Rule 4240(b) would provide that any member, prior to 
establishing any clearing arrangement with respect to CDS transactions 
that makes use of any central counterparty clearing services provided 
by any clearing agency, pursuant to Securities Act Rule 239T(a)(1),\16\ 
must notify FINRA in advance in writing, in such manner as may be 
specified by FINRA in a Regulatory Notice.
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    \16\ 17 CFR 230.239T(a)(1).
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(3) Margin Requirements: CDS Cleared on the CME
    Proposed FINRA Rule 4240(c)(1) provides that a member, as a minimum 
for computing customer or broker-dealer margin, with respect to any 
customer or broker-dealer transaction in CDS with a member in which the 
member executes a CME matching customer-side transaction, must require 
the applicable margin pursuant to CME rules regardless of the type of 
account in which the transaction in CDS is booked. The proposed rule 
would require that members must, based on the risk monitoring 
procedures and guidelines set forth in paragraph (d) of the proposed 
rule,\17\ determine whether the applicable CME requirements are 
adequate with respect to their customer and broker-dealer accounts and 
the positions in those accounts and, where appropriate, increase such 
margin in excess of the minimum margin. For this purpose, the proposed 
rule would

[[Page 25590]]

permit members to use the margin requirements set forth in the proposed 
rule's Supplementary Material.\18\
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    \17\ See Proposed FINRA Rule 4240(d).
    \18\ See Proposed FINRA Rule 4240.01.
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    It is FINRA's understanding that, after calculating margin on an 
account-specific basis, CME performs stress tests to assess 
concentration risk across a member's customer and house portfolios.\19\ 
Further, CME may require that a member post additional margin based on 
the results of those concentration risk stress tests. Accordingly, 
Proposed FINRA Rule 4240(c)(1) would require that the aggregate amount 
of margin the member collects from customers and broker-dealers for 
transactions in CDS must equal or exceed the aggregate amount of margin 
the member is required to post at CME with respect to those customer 
and broker-dealer transactions.
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    \19\ See Letter from Adam Cooper, Senior Managing Director and 
General Counsel, Citadel Investment Group, L.L.C., and Ann K. 
Shulman, Managing Director and Deputy General Counsel, Chicago 
Merchantile Exchange Inc., to Elizabeth M. Murphy, Secretary, 
Securities and Exchange Commission, dated March 12, 2009 (available 
at http://www.sec.gov/rules/exorders/2009/cme-citadel-exreq.pdf). 
Letter from Lisa A. Dunsky, Director & Associate General Counsel, 
CME Group, to David Stawick, Secretary, Commodity Futures Trading 
Commission, dated December 19, 2008, (available at: http://www.cftc.gov).
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    CME matching customer-side transactions, being subject to the 
margin guidelines set forth in Proposed FINRA Rule 4240(c)(1), are not 
subject to the margin guidelines as set forth in paragraph (c)(2) of 
the proposed rule. However, members are encouraged to apply higher 
margin requirements where appropriate.
(4) Margin Requirements: CDS That Are Cleared on Central Counterparty 
Clearing Facilities Other Than the CME or That Settle Over-the-Counter 
(``OTC'')
    Proposed FINRA Rule 4240(c)(2) would provide that a member, with 
respect to any transaction in CDS that makes use of central 
counterparty clearing facilities other than the CME or that settle OTC, 
must require the applicable minimum margin as set forth in the proposed 
rule's Supplementary Material regardless of the type of account in 
which the transaction in CDS is booked.\20\ However, the proposed rule 
provides that a member must, based on the risk monitoring procedures 
and guidelines set forth in paragraph (d) of the proposed rule, 
determine whether such margin is adequate with respect to their 
customer and broker-dealer accounts and, where appropriate, increase 
the requirements.
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    \20\ See Proposed FINRA Rule 4240.01.
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(5) Risk Monitoring Procedures and Guidelines
    Proposed FINRA Rule 4240(d) provides that members must monitor the 
risk of any customer or broker-dealer accounts with exposure to CDS and 
must maintain a comprehensive written risk analysis methodology for 
assessing the potential risk to the member's capital over a specified 
range of possible market movements over a specified time period. The 
proposed rule would require that members must employ the risk 
monitoring procedures and guidelines set forth in Proposed FINRA Rule 
4240(d)(1) through (8).\21\ Further, the rule would require the member 
to review, in accordance with the member's written procedures, at 
reasonable periodic intervals, the member's credit extension activities 
for consistency with the risk monitoring procedures and guidelines set 
forth in the rule, and to determine whether the data necessary to apply 
the risk monitoring procedures and guidelines is accessible on a timely 
basis and information systems are available to adequately capture, 
monitor, analyze and report relevant data (i.e., the data relevant for 
purposes of the risk monitoring procedures and guidelines set forth in 
Proposed FINRA Rule 4240(d)(1) through (8)).
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    \21\ See Proposed FINRA Rule 4240(d)(1) through (8).
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(6) Concentrations
    Proposed FINRA Rule 4240(e) would require that, where the maximum 
current and potential exposure with respect to the largest single name 
CDS across all accounts exceeds the member's tentative net capital, the 
member must take a capital charge equal to the aggregate margin 
requirement for such accounts on the positions in such single name CDS 
in accordance with the tables set forth in the proposed rule's 
Supplementary Material.\22\ This additional requirement for 
concentrated positions reflects FINRA's concern for the possibility of 
a sudden default in the largest single name CDS across all accounts in 
respect of which a member has current or potential exposure. However, 
the proposed rule would allow a member to reduce this capital charge by 
the amount of the excess margin held in all customer and broker-dealer 
accounts.
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    \22\ See Proposed FINRA Rule 4240.01.
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(7) Proposed FINRA Rule 4240.01
    Proposed FINRA Rule 4240.01, a Supplementary Material, sets forth 
the customer and broker-dealer margin requirements that would apply 
with respect to CDS, as appropriate, pursuant to paragraph (c) of the 
proposed rule. The proposed rule addresses customer and broker-dealer 
accounts that are short a CDS, accounts that are long a CDS and 
accounts that maintain both long and short CDS. Paragraph (c) of the 
Supplementary Material provides, with respect to accounts that maintain 
both long and short CDS, that if a customer or broker-dealer is long 
the bond and long a CDS contract on the same underlying obligor, margin 
would need to be collected only on the long bond position, provided 
that bond can be delivered against the long CDS contract, as prescribed 
pursuant to applicable FINRA margin rules.\23\ In instances where the 
customer or broker-dealer is short the bond and short the CDS on the 
same underlying obligor, margin need only be collected on the short 
bond, again as prescribed pursuant to applicable FINRA margin 
rules.\24\ FINRA notes that, for purposes of the proposed rule, the 
term ``applicable FINRA margin rules'' refers to requirements pursuant 
to NASD Rule 2520 or Incorporated NYSE Rule 431, as applicable to the 
member.\25\ FINRA plans to address NASD Rule 2520 and Incorporated NYSE 
Rule 431 later as part of FINRA's rulebook consolidation process, and, 
accordingly, will amend Proposed FINRA Rule 4240.01(c) as appropriate 
to refer to the new, consolidated FINRA margin rule.\26\
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    \23\ As originally proposed, the rule change would have stated, 
``If a customer or broker-dealer is long the bond and long a CDS 
contract on the same underlying obligor, margin needs to be 
collected only on the long bond position, provided that bond can be 
delivered against the short CDS contract, as prescribed pursuant to 
applicable FINRA margin rules.'' Amendment No. 1 corrected this 
sentence by changing the word ``short'' directly preceding the 
second ``CDS'' to ``long.''
    \24\ As originally proposed, the rule change would have stated, 
``In instances where the customer or broker-dealer is short the bond 
and short the CDS, margin need only be collected on the short bond, 
as prescribed pursuant to applicable FINRA margin rules.'' Amendment 
No. 1 clarified this sentence by adding the phrase ``on the same 
underlying obligor'' directly following the word ``CDS.''
    \25\ The current FINRA rulebook consists of: (1) FINRA Rules; 
(2) NASD Rules; and (3) rules incorporated from NYSE (``Incorporated 
NYSE Rules''). 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.
    \26\ For more information about the rulebook consolidation 
process, see FINRA Information Notice, March 12, 2008 (Rulebook 
Consolidation Process).
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    FINRA will announce the effective date of the proposed rule change 
in a Regulatory Notice to be published no later than 60 days following 
Commission approval, but FINRA does

[[Page 25591]]

intend to issue such Regulatory Notice as soon as practicable in the 
event of SEC approval of the proposed rule change given the limited 
time period of the proposed Interim Pilot Program.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the 
provisions of Section 15A(b)(6) of the Act,\27\ which requires, among 
other things, that FINRA rules must be designed to prevent fraudulent 
and manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest. FINRA believes that the proposed rule change would 
further the purposes of the Act because, consistent with goals set 
forth by the Commission when it provided the Commission's CDS Relief 
with respect to the operation of central counterparties to clear and 
settle CDS, the margin requirements set forth by the proposed rule 
change will help to stabilize the financial markets.
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    \27\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Commission's Findings and Order Granting Accelerated Approval of a 
Proposed Rule Change

    Pursuant to Section 19(b)(2) of the Act,\28\ the Commission may not 
approve any proposed rule change, or amendment thereto, prior to the 
30th day after the date of publication of notice of the filing thereof, 
unless the Commission finds good cause for so doing and publishes its 
reasons for so finding. FINRA also has requested that the Commission 
find good cause for approving the proposed rule change prior to the 
30th day after publication in the Federal Register. For the Commission 
to approve rule changes proposed by a registered securities association 
(e.g., FINRA) the proposed rule changes must be consistent with the 
requirements of the Exchange Act, including Section 15A(b)(6) of the 
Act,\29\ and the rules and regulations thereunder. Section 15A(b)(6) 
requires that the rules of a registered securities association be, 
``designed to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, to foster 
cooperation and coordination with persons engaged in regulating, 
clearing, settling, processing information with respect to, and 
facilitating transactions in securities, 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; 
and are not designed to permit unfair discrimination between customers, 
issuers, brokers, or dealers, to fix minimum profits, to impose any 
schedule or fix rates of commissions, allowances, discounts, or other 
fees to be charged by its members, or to regulate by virtue of any 
authority conferred by [Section 15A] matters not related to the 
purposes of [Section 15A] or the administration of the association.''
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    \28\ 15 U.S.C. 78s(b)(2).
    \29\ 15 U.S.C. 78o-3(b)(6).
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    The over-the-counter (``OTC'') market for CDS has been a source of 
concerns to the Commission and other financial regulators.\30\ These 
concerns include the systemic risk posed by CDS, highlighted by the 
possible inability of parties to meet their obligations as 
counterparties and the potential resulting adverse effects on other 
markets and the financial system.\31\ Recent credit market events have 
demonstrated the seriousness of these risks in a CDS market operating 
without meaningful regulation, transparency,\32\ or central clearing 
counterparties.\33\ These events have emphasized the need for central 
clearing counterparties as mechanisms to help control such risks.\34\ 
Establishment of central clearing counterparties for CDS is expected to 
reduce the counterparty risks inherent in the CDS market, and thereby 
help mitigate potential systemic impacts. As we have stated 
previously,\35\ given the continued uncertainty in this market, taking 
action to help foster the prompt development of central clearing 
counterparties is in the public interest.
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    \30\ See Securities Exchange Act Releases Nos. 59164, p. 1 (Dec. 
24, 2008), 74 FR 139 (Jan. 2, 2009), 59165, p. 1 (Dec. 24, 2008), 74 
FR 133 (Jan. 2, 2009), 59527, p. 1 (Mar. 6, 2009), 74 FR 10791 (Mar. 
12, 2009), 59578, p. 1 (Mar 13, 2009), 74 FR 11781, at 11782 (Mar. 
19, 2009), and Securities Act Release No. 8999, p. 4 (Jan. 14, 
2009), 74 FR 3967 (Jan. 22, 2009).
    \31\ Id. In addition to the potential systemic risks that CDS 
pose to financial stability, we are concerned about other potential 
risks in this market, including operational risks, risks relating to 
manipulation and fraud, and regulatory arbitrage risks.
    \32\ See Policy Objectives for the OTC Derivatives Market, The 
President's Working Group on Financial Markets, November 14, 2008, 
available at http://www.ustreas.gov/press/releases/reports/ 
policyobjectives.pdf (``Public reporting of prices, trading volumes 
and aggregate open interest should be required to increase market 
transparency for participants and the public.'').
    \33\ See The Role of Credit Derivatives in the U.S. Economy 
Before the H. Agric. Comm., 110th Cong. (2008) (Statement of Erik 
Sirri, Director of the Division of Trading and Markets, Commission).
    \34\ See id.
    \35\ See Securities Exchange Act Release Nos. 59164 (Dec. 24, 
2008), 74 FR 139 (Jan. 2, 2009), 59527 (Mar. 6, 2009), 74 FR 10791 
(Mar. 12, 2009), and 59578 (Mar. 13, 2009), 74 FR 11781 (Mar. 19, 
2009).
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    The Commission believes that using well-regulated central clearing 
counterparties to clear transactions in CDS helps promote efficiency 
and reduce risk in the CDS market and among its participants.\36\ These 
benefits can be particularly significant in times of market stress, as 
central clearing counterparties can mitigate the potential for a market 
participant's failure to destabilize other market participants, and 
reduce the effects of misinformation and rumors\.37\ Central clearing 
counterparty-maintained records of CDS transactions may also aid the 
Commission's efforts to prevent and detect fraud and other abusive 
market practices.\38\
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    \36\ See Securities Exchange Act Releases Nos. 59164, p. 4 (Dec. 
24, 2008), 74 FR 139, at 140 (Jan. 2, 2009), 59527, p. 4 (Mar. 6, 
2009), 74 FR 10791, at 10792 (Mar. 12, 2009), and 59578, p. 4 (Mar. 
13, 2009), 74 FR 11781, at 11782 (Mar. 19, 2009).
    \37\ Id.
    \38\ Id.
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    Well-regulated central clearing counterparties also are expected to 
address concerns about counterparty risk by substituting the 
creditworthiness and liquidity of the central clearing counterparties 
for the creditworthiness and liquidity of the counterparties to a 
CDS.\39\ In the absence of central clearing counterparties, 
participants in the OTC CDS market must carefully manage their 
counterparty risks because a default by a counterparty can render 
worthless, and payment delay can reduce the usefulness of, the credit 
protection that has been bought by a CDS purchaser.\40\ Firms that 
trade CDS OTC attempt to manage counterparty risk by carefully 
selecting and monitoring their counterparties, entering into legal 
agreements that permit them to net gains and losses across contracts 
with a defaulting counterparty, and often requiring counterparty 
exposures to be collateralized.\41\ Central clearing

[[Page 25592]]

counterparties are expected to allow participants to avoid the risks 
specific to individual counterparties because central clearing 
counterparties generally ``novate'' bilateral trades by entering into 
separate contractual arrangements with both counterparties--becoming 
buyer to one and seller to the other.\42\ Through novation, it is the 
central clearing counterparty that assumes the counterparty risks. For 
this reason, central clearing counterparties for CDS are expected to 
contribute generally to the goal of market stability.\43\ As part of 
its risk management, a central clearing counterparty may subject 
novated contracts to initial and variation margin requirements and 
establish a clearing fund.\44\ A central clearing counterparty also may 
implement a loss-sharing arrangement among its participants to respond 
to a participant insolvency or default.\45\
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    \39\ Id.
    \40\ Id.
    \41\ See generally R. Bliss and C. Papathanassiou, ``Derivatives 
clearing, central counterparties and novation: The economic 
implications,'' http://www.ecb.int/events/pdf/conferences/ccp/BlissPapathanassiou_final.pdf (Mar. 8, 2006), at 6. See also ``New 
Developments in Clearing and Settlement Arrangements for OTC 
Derivatives,'' Committee on Payment and Settlement Systems, BIS, at 
25 (Mar. 2007), available at http://www.bis.org/pub/cpss77.pdf; 
``Reducing Risks and Improving Oversight in the OTC Credit 
Derivatives Market,'' Before the Sen. Subcomm. On Secs., Ins. and 
Investments, 110th Cong. (2008) (Statement of Patrick Parkinson, 
Deputy Director, Division of Research and Statistics, FRB).
    \42\ See Securities Exchange Act Releases Nos. 59164, p. 4 (Dec. 
24, 2008), 74 FR 139, at 140 (Jan. 2, 2009), 59527, p. 4 (Mar. 6, 
2009), 74 FR 10791, at 10792 (Mar. 12, 2009), and 59578, p. 4 (Mar. 
13, 2009), 74 FR 11781, at 11782 (Mar. 19, 2009). ``Novation'' is a 
``process through which the original obligation between a buyer and 
seller is discharged through the substitution of the central 
clearing counterparty as seller to buyer and buyer to seller, 
creating two new contracts.'' Committee on Payment and Settlement 
Systems, Technical Committee of the International Organization of 
Securities Commissioners, Recommendations for Central Counterparties 
(November 2004) at 66.
    \43\ See Securities Exchange Act Releases Nos. 59164, p. 5 (Dec. 
24, 2008), 74 FR 139, at 140 (Jan. 2, 2009), 59527, p. 5 (Mar. 6, 
2009), 74 FR 10791, at 10792 (Mar. 12, 2009), and 59578, p. 5 (Mar. 
13, 2009), 74 FR 11781, at 11782 (Mar. 19, 2009).
    \44\ Id.
    \45\ Id.
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    Central clearing counterparties also are expected to reduce CDS 
risks through multilateral netting of trades.\46\ Trades cleared 
through a central clearing counterparty would limit a participant's 
exposure to an OTC market dealer, permitting the participant to accept 
the best bid or offer in the OTC market regardless of the 
creditworthiness of the dealer.\47\ In addition, by allowing netting of 
positions in similar instruments, and netting of gains and losses 
across different instruments, central clearing counterparties are 
expected to reduce redundant notional exposures and promote the more 
efficient use of resources for monitoring and managing CDS 
positions.\48\ Through risk controls, including controls on market-wide 
concentrations that cannot be implemented effectively when counterparty 
risk management is decentralized, central clearing counterparties are 
expected to help prevent a single market participant's failure from 
destabilizing other market participants and, ultimately, the broader 
financial system.\49\
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    \46\ See Securities Exchange Act Releases Nos. 59164, p. 5 (Dec. 
24, 2008), 74 FR 139, at 140 (Jan. 2, 2009), 59527, p. 5 (Mar. 6, 
2009), 74 FR 10791, at 10792 (Mar. 12, 2009), and 59578, p. 5 (Mar. 
13, 2009), 74 FR 11781, at 11782 (Mar. 19, 2009). See also, ``New 
Developments in Clearing and Settlement Arrangements for OTC 
Derivatives,'' supra note 11, at 25. Multilateral netting of trades 
would permit multiple counterparties to offset their open 
transaction exposure through the central clearing counterparty, 
spreading credit risk across all participants in the clearing system 
and more effectively diffusing the risk of a counterparty's default 
than could be accomplished by bilateral netting alone.
    \47\ Id.
    \48\ Id.
    \49\ Id.
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    After careful consideration, the Commission finds that FINRA's 
proposed rule change to establish a pilot program implementing minimum 
customer margin requirements for transactions in CDS is consistent with 
the requirements of the Exchange Act,\50\ including Section 15A(b)(6) 
of the Act.\51\ In particular, the Commission finds that FINRA's 
proposed rule is consistent with Section 15A(b)(6) of the Act \52\ in 
that it is designed to perfect the mechanism of a free and open market 
and to protect investors and the public interest. The Commission notes 
that the proposed rule is intended to promote greater accuracy and 
efficiency with respect to Exchange margin requirements. The proposed 
rule is intended to align a customer's total margin requirement for CDS 
positions with the actual risk associated with those positions taken as 
a whole. FINRA's proposed rule also is consistent with 15A(b)(6) of the 
Act \53\ because it is designed to limit the amount of leverage a 
customer can obtain though CDS positions and decreases the risk that a 
broker-dealer will fail because its customers are unable to fulfill 
their obligations to the firm.
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    \50\ In approving this proposed rule change, the Commission has 
considered its impact on efficiency, competition, and capital 
formation. See 15 U.S.C. 78c(f).
    \51\ 15 U.S.C. 78o-3(b)(6).
    \52\ Id.
    \53\ Id.
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    The Commission also finds that accelerated approval is appropriate. 
More specifically, accelerated approval will allow the pilot program, 
which will expire on September 25, 2009, to be in effect for a 
sufficient period of time to permit FINRA to properly evaluate the 
performance of the margin rule so that it can propose suitable 
permanent margin rules for CDS. Further, accelerated approval is 
appropriate because it will enable the CME to immediately begin 
clearing customer, in addition to proprietary, CDS positions, and 
therefore, enable market participants to receive more quickly the 
benefits described above, such as increased market stability, arising 
from the existence of a well-regulated central clearing counterparty.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the 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-2009-012 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-2009-012. 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 inspection 
and copying 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

[[Page 25593]]

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-2009-012 and should be submitted on or before June 
18, 2009.

V. Conclusion

    For the foregoing reasons, pursuant to Section 19(b)(2) of the 
Act,\54\ the Commission finds good cause to approve the proposed rule 
change on an accelerated basis.
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    \54\ 15 U.S.C. 78s(b)(2).
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    It is hereby ordered, pursuant to Section 19(b)(2) of the Act, that 
the proposed rule change (SR-FINRA-2009-012) be, and it hereby is, 
approved on an accelerated basis to establish an interim pilot program 
expiring on September 25, 2009.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-12342 Filed 5-27-09; 8:45 am]
BILLING CODE 8010-01-P