[Federal Register Volume 76, Number 238 (Monday, December 12, 2011)]
[Notices]
[Pages 77287-77297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31762]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65899; File No. SR-FICC-2008-01]


Self-Regulatory Organizations; Fixed Income Clearing Corporation; 
Notice of Filing of Proposed Rule Change To Allow the Mortgage-Backed 
Securities Division To Provide Guaranteed Settlement and Central 
Counterparty Services

 December 6, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 \2\ thereunder, notice is hereby given 
that on March 12, 2008, the Fixed Income Clearing Corporation 
(``FICC'') filed with the Securities and Exchange Commission 
(``Commission''), and on November 21, 2011, amended the proposed rule 
change as described in Items I, II, and III below, which Items have 
been prepared primarily by FICC. The Commission is publishing this 
notice to solicit comments on the proposed rule change, as amended, 
from interested persons.
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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

    The proposed rule changes consist of modifications to the rules of 
FICC's MBSD to allow MBSD to provide guaranteed settlement and central 
counterparty (``CCP'') services.

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

    In its filing with the Commission, FICC 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. FICC 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

    (a) The purpose of this rule filing is to introduce CCP and 
guaranteed settlement services for the MBSD. Establishment of these 
processes for the MBSD has necessitated the drafting of a new MBSD 
rulebook. Therefore, the existing MBSD clearing rulebook will be 
replaced, in its entirety, by a new rulebook.\3\ Certain provisions in 
the current MBSD rules which reflect processes that will continue upon 
the introduction of the CCP services have been retained in the proposed 
MBSD rulebook, where applicable. In order to promote uniformity between 
FICC's two Divisions and to create transparency for common members, the 
new MBSD rulebook follows the structure of the Government Securities 
Division (the ``GSD'') rulebook. In addition, where possible and/or 
applicable, the new MBSD provisions mirror the equivalent GSD 
provisions. It should be noted that under the current MBSD Clearing 
Rules, member firms are referred to as ``Participants.'' In the new 
MBSD CCP rulebook, which is proposed by this filing, member firms shall 
be referred to as ``Clearing Members.''
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    \3\ The MBSD's Electronic Pool Notification Service rulebook 
will remain unchanged.
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I. Overview
    With the introduction of CCP services and guaranteed settlement for 
transactions submitted to the MBSD, FICC will provide a trade guarantee 
for all existing types of trades upon comparison of trade details 
submitted by members.\4\ Additionally, a new pool netting system will 
perform a daily net of pool allocations for those TBA trades that 
according to the MBSD rules and procedures are eligible for pool 
netting.\5\ It should be noted that not all guaranteed trades will be 
included in the pool netting system. A determination of which trades 
are included will be determined by netting percentages. FICC will 
become CCP to those obligations, and settlement will occur versus FICC. 
For all other obligations, settlement will occur outside of FICC, with 
original settlement counterparties.
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    \4\ Currently, the MBSD recognizes two types of trades. Those 
are ``to be announced'' (``TBA'') trades and specified pool trades 
(``SPTs''). TBA trades may proceed through the Settlement Balance 
Order engine for netting or may settle on a trade-for-trade basis. A 
TBA is a contract for the purchase or sale of agency mortgage-backed 
securities to be delivered at a future agreed-upon date; however, 
the actual pool identities or the number of pools that will be 
delivered to fulfill the trade obligation or terms of the contract 
are unknown at the time of the trade. The difference between TBAs 
and SPTs is that for an SPT all required pool data, including the 
pool number to be delivered on settlement date, are agreed upon by 
Clearing Members at the time of execution.
    \5\ SPTs are not eligible for pool netting under this proposal.
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A. Current Processing
    At no time during the current MBSD processing does FICC guarantee 
settlement, or act as a CCP for submitted transactions. Under the 
current MBSD processing model, the majority of the trading activity 
submitted to the MBSD for processing, is submitted as Settlement 
Balance Order Destined (``SBOD''). SBOD trades are eligible for 
comparison, risk management services and the TBA Netting cycle. Firms 
can submit TBA trades as Trade-For-Trade (``TFTD'') transactions, which 
are TBA trades that are eligible for comparison and risk management 
services but ineligible for the TBA Netting cycle. SPTs are not 
considered TBAs because the actual pool number is part of the trade 
terms; SPTs are eligible for comparison and risk management services 
but ineligible for the TBA Netting cycle.

[[Page 77288]]

    Each of the transactions mentioned above is compared by FICC's 
RTTMTM system. Settlement obligations for SPTs and TBA TFTD 
transactions are generally established when a report indicating the 
trade as compared is made available by the MBSD to the Participants on 
both sides of the transaction.\6\ Settlement obligations for TBA SBOD 
transactions are not established in this way. Instead, SBOD 
transactions proceed to the MBSD's settlement balance order (``SBO'') 
engine for TBA netting. The TBA Netting process establishes the 
settlement obligations for the SBOD transactions.
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    \6\ Participants use FICC's Interactive Submission Method, 
Multiple Batch Submission Method or Single Batch Submission Method 
to submit trade data to the MBSD. Contemporaneous with successful 
compassion of the trade data in FICC's RTTM system, FICC generates 
output indicating that such trade data is compared, is uncompared 
and/or has been deleted. FICC makes available to the Participants, 
the RTTM Compare Report, which establishes the settlement obligation 
for TBA TFTD transactions and for SPTs between the counterparties 
since these trades do not enter the TBA netting process.
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    The SBO netting system produces settlement obligations between MBSD 
Participants. Once Participants' settlement obligations are 
established, Participants use FICC's electronic pool notification 
service (the ``EPN Service'') to inform each other with respect to the 
specific pools that will be delivered for settlement purposes. 
Thereafter, members transmit notifications of settlement to FICC when 
they have ultimately settled their obligations with applicable 
counterparties.
B. Proposed Processing--Overview
    Under the proposed MBSD rules, each Clearing Member will be 
required to submit to the MBSD for processing transactions with other 
Clearing Members in all securities that are netting-eligible according 
to MBSD rules and procedures. Certain MBSD processes will continue to 
operate as they do today. Specifically, eligible transactions will 
continue to be submitted to the RTTMTM system for matching 
purposes.\7\ FICC will provide output of the trade as compared, 
uncompared and/or deleted. The SBO netting process for TBA trades will 
also continue to generate settlement obligations between Clearing 
Members. However, the MBSD will now provide a trade guarantee at the 
point of comparison of all submitted transactions (i.e., SBOD trades, 
TFTD trades, SPT trades and Option Contracts (collectively, ``MBSD 
Eligible Trades'') will be guaranteed by the MBSD), as is currently 
done in the GSD. The timing of comparison of MBSD Eligible Trades is 
the point at which the MBSD will make available to the Clearing Members 
on both sides of the transaction an output indicating that such trade 
data has been compared. In the event of a member default, FICC will 
settle the guaranteed trade.
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    \7\ Trade data submitted to the MBSD must include such 
identifying information as the MBSD may require and must be 
submitted in the form and manner and in accordance with the time 
schedules prescribed by the MBSD rules or otherwise set forth by 
FICC from time to time. The symbol corresponding to the name of a 
Clearing Member that is printed, stamped or written on any form, 
document or other item issued by the Clearing Member pursuant to 
Rule 5 Section 2 shall be deemed to have been adopted by the 
Clearing Member as its signature and shall be valid and binding upon 
the Clearing Member in all respects as though it had manually 
affixed its signature to such form document or other item.
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    The MBSD proposes to introduce ``pool comparison'' and ``pool 
netting,'' and interpose itself as settlement counterparty to certain 
settlement obligations. Specifically, after the netting of TBA trades 
occurs through the SBO engine, settlement obligations will be issued 
between members and members will allocate pools for settlement via the 
EPN Service (just as is done today). Additionally, however, members 
will be required to submit pool details for those netted TBA Settlement 
obligations via the RTTMTM system for pool comparison and 
for consideration for pool netting. Pools allocated to obligations 
associated with Settlement Balance Order Non-Original Counterparty 
trades, Settlement Balance Order Original Counterparty trades and with 
TFTD trades will be eligible for pool netting which establishes 
settlement obligations.\8\
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    \8\ SPTs will not be considered an eligible transaction type for 
pool netting at this time.
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    Compared pools will be evaluated for eligibility for pool netting. 
The MBSD's system will determine which pools will receive maximum 
benefit from pool netting by considering such factors as trading 
velocity and projected netting factor. It is important to note that not 
every compared pool will proceed to the pool netting system.
    Upon FICC's issuance of pool netting results to members, those 
pools that are eligible for netting will be novated, i.e., settlement 
obligations between the Clearing Members will be replaced with 
obligations to settle with FICC. Certain outstanding obligations will 
still require the Notification of Settlement (``NOS'') process. These 
will include (1) SPTs, because they are not eligible for pool netting; 
(2) transactions for which Clearing Members chose not to submit 
allocation information into pool netting \9\; and (3) certain 
transactions with an incomplete master file on a pool record or number. 
When a pool is matched, in order for it to be considered for pool 
netting, FICC must have the required pool information on its Security 
Masterfile. This data for example would include the pool itself, factor 
information and data to map it back to a TBA.\10\ With respect to any 
obligations that fail to settle, these obligations will not be re-
netted, as they are in the GSD.\11\
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    \9\ For example, if a Clearing Member has a trade that was 
matched with stipulations, the Clearing Member would not submit it 
for pool netting. Pool netting creates delivery obligations based 
off the net position of Members without regard to the original 
counterparty relationship. With a trade matched with stipulations, 
the buyer/seller will want to ensure receipt/delivery is maintained 
between themselves to ensure the stipulated terms are adhered to.
    \10\ For example, if FICC has not received current month factor 
on the pool number.
    \11\ The MBSD will retain the discretion to re-net fails or to 
conduct pair-offs if it believes that such actions are necessary to 
protect itself and its Clearing Members due to market conditions or 
events.
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II. Proposed MBSD Rulebook

    As noted above, the current MBSD rulebook will be replaced in its 
entirety by a new proposed rulebook. Set forth below is an overview of 
the significant substantive and structural changes to the rules.

A. Definitions

    The MBSD rules will have a revised Rule 1, ``Definitions,'' which 
will include terminology applicable to new MBSD processing and 
procedures. For example, terms relevant to pool netting have been 
included (such as ``pool deliver obligation'' and ``pool receive 
obligation''). Where practical and/or applicable, the MBSD rulebook 
uses terms from the current GSD rules, in order to harmonize language 
between the Divisions.

B. Membership

    Rule 2, ``Members'', Rule 2A, ``Initial Membership Requirements,'' 
Rule 3, ``Ongoing Membership Requirements,'' and Rule 3A, ``Cash 
Settling Bank Members,'' will govern membership types, member 
application requirements and ongoing reporting requirements.
1. Initial Membership Requirements
    The new MBSD rules will provide for two membership types (as set 
forth in Rule 2): Clearing Members and Cash Settling Bank Members. 
Those entities qualifying for clearing membership will be guaranteed 
service members of the MBSD--trades submitted by these Members will be 
guaranteed at the point

[[Page 77289]]

of comparison, and eligible, as applicable, for pool comparison, 
netting and settlement. Categories of clearing membership will include: 
(i) Registered brokers or dealers; (ii) other registered clearing 
agencies; (iii) registered investment companies; (iv) banks \12\; (v) 
government securities issuers/government sponsored enterprises; (vi) 
insurance companies; \13\ and (vii) unregistered investment pools.\14\ 
In addition, the MBSD will have the discretion to make its services 
available to other entity types which it deems appropriate subject to 
the approval of the Commission. Membership requirements for Cash 
Settling Bank Members are set forth in Rule 3A, ``Cash Settling Bank 
Members''. These requirements remain unchanged from the current MBSD 
rulebook and they mirror the requirements of the GSD-equivalent 
members, known as funds-only settling banks.
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    \12\ The term ``Banks'' shall include Federal Savings 
Associations.
    \13\ The MBSD does not currently have any insurance company 
Clearing Members. Financial and other membership requirements for 
this category will be established in a future rule filing.
    \14\ Currently there are two members who do not fit the listed 
membership types. As a result, these entities will be grandfathered 
in and subject to ongoing membership requirements.
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    With respect to initial membership requirements as set forth in 
Rule 2A, ``Initial Membership Requirements,'' the MBSD has mirrored the 
current requirements for the GSD netting membership, where there is an 
existing membership type in the GSD rules. The two membership 
categories where there are no GSD equivalents are the unregistered 
investment pools (the ``UIPs'') and the registered investment 
companies. In addition to standard requirements regarding financial and 
operational responsibility applicable to all Clearing Members, 
registered investment companies must be registered under the Investment 
Company Act of 1940, and have minimum net assets of $100 million. With 
respect to the UIPs, membership standards that were adopted for these 
entities via a 2006 rule filing \15\ will be revised in the new MBSD 
rulebook, in consideration of their new status as guaranteed service 
members. Revised requirements will be as follows:
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    \15\ See Securities Exchange Release Act Release No. 34-55037 
(Jan. 3, 2007), 72 FR 1252 (Jan. 10, 2007) [SR-FICC-2006-10].
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     The UIP applicant must have an investment advisor 
domiciled in the United States.
     The UIP's investment advisor must be registered with the 
SEC under the Investment Advisors Act of 1940, the UIP must have (i) 
$250 million in net assets, or (ii) have $100 million in net assets and 
the UIP's investment advisor must advise an existing UIP Clearing 
Member that has assets under management of $1.5 billion.
    Additional requirements for UIPs will appear in Rule 3, ``Ongoing 
Membership Requirements,'' discussed further below. As is the case with 
all MBSD Clearing Member applicants, UIPs must meet all applicable 
financial requirements set forth in the proposed MBSD rules in order to 
be admitted into membership. The required levels must be maintained as 
a condition of membership on an ongoing basis.\16\ With respect to all 
MBSD Clearing Member categories, as is currently the case under the 
MBSD rules, applicants whose financial statements are not prepared in 
accordance with U.S. generally accepted accounting principles 
(``GAAP'') will be subject to increased minimum financial 
requirements.\17\
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    \16\ Required membership levels must be maintained by all 
members on an ongoing basis as a condition of membership.
    \17\ These higher GAAP-based requirements remain unchanged from 
the current GSD and MBSD rules. Specifically, firms whose financial 
statements are prepared in accordance with International Financial 
Reporting Standards, Canadian GAAP or UK GAAP will have a minimum 
financial requirement that is 1.5 times the U.S. GAAP requirement, 
firms whose financial statements are prepared in accordance with the 
GAAP principles of a European Union country other than the United 
Kingdom will have a minimum financial requirement that is 5 times 
the U.S. GAAP requirement, and firms whose financial statements are 
prepared in accordance with any other type of GAAP will have a 
minimum financial requirement that is 7 times the U.S. GAAP 
requirement.
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    The MBSD will continue to require non-domestic membership 
applicants to submit, with their membership application, legal opinions 
on the laws of the applicants' home jurisdictions. Updates to such 
legal opinions will be required from direct foreign members on an 
annual basis. Any additional legal risk \18\ posed by such applicants 
due to their home country law may result in additional risk mitigation 
measures, including, for example, the posting of letters of credit as 
collateral. Members that are U.S. branches or agencies of non-U.S. 
banks (``U.S. Branches'') will be classified as U.S. members, based 
particularly on the rationale that such U.S. Branches are regulated by 
the U.S. and/or state regulators.\19\
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    \18\ ``Legal risk'' is currently defined in the rules as the 
risk that, as a result of a law applicable to a Clearing Member's 
insolvency or bankruptcy, FICC may be delayed or prohibited from: 
(i) Accessing any portion of the Member's Clearing Fund, (ii) 
netting, closing out or liquidating transactions, or setting off 
obligations, or taking any other action contemplated by the rules 
regarding clearing fund, cease to act, insolvency of a member or 
(iii) otherwise exercising its rights pursuant to the rules.
    \19\ As in the current version of MBSD rule Article III Rule 15 
``Special Provisions Applicable to Non-Domestic Participants'', U.S. 
Branches will not be required to submit annual updates to their 
foreign legal opinions unless FICC deems it necessary to address 
legal risk; applicants in this category will, however, continue to 
be required to submit an initial foreign legal opinion on their home 
country law with their membership application. See Securities 
Exchange Release Act Release No. 34-62828 (Sep. 2, 2010), 75 FR 
54929 (Sep. 9, 2010) [SR-FICC-2010-02].
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2. Ongoing Membership Requirements
    Pursuant to Rule 3, ``Ongoing Membership Requirements,'' current 
provisions applicable to the GSD netting membership under the GSD rules 
have been carried over to the MBSD rules to apply to certain member 
types. For example, the GSD currently assesses a premium against any 
member whose Clearing Fund requirement exceeds its specified regulatory 
capital figure.\20\ The MBSD will also apply this premium to members. 
Also, bank, broker-dealer and UIP members of the MBSD will be rated. 
Among other things, financial measures relevant to these types of 
entities will be assessed. Any member that receives a poor rating may 
be monitored more closely and/or placed on FICC's internal watch list.
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    \20\ By way of example, under the current GSD rules, if a member 
has a Clearing Fund requirement of $11.4 million and excess net 
capital of $10 million, its ``ratio'' is 1.14 (or 114 percent), and 
the applicable collateral premium would be 114 percent of $1.4 
million (which is equal to the amount by which the member's Clearing 
Fund requirement exceeds its excess net capital), or $1,596,000. The 
current GSD rules provide that FICC has the right to: (i) Apply a 
lesser collateral premium (including no premium) based on specific 
circumstances (such as a member being subject to an unexpected 
haircut or capital charge that does not fundamentally change its 
risk profile), and (ii) return all or a portion of the collateral 
premium amount if it believes that the member's risk profile does 
not require the maintenance of that amount. These rights will be 
carried over to the proposed MBSD rules.
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    As set forth in Rule 3, the MBSD will take additional risk 
management measures with respect to UIP members. Specifically, the 
``value at risk'' (``VaR'') confidence level for UIP members will be 
set at 99.5%, half a percentage higher than the standard assumption set 
forth in the procedures of the Corporation (currently set to 99%).\21\ 
As set forth in Rule 2A, UIP members will also be required to achieve a 
qualitative assessment rating of at least ``medium'' as part of the 
initial membership requirement. Qualitative assessments will be based 
on such factors as

[[Page 77290]]

management, capital, strategy/risk and profile, valuation procedures 
and internal risk management controls. Any UIP member rated less than 
``medium'' may be subject to an increased Required Fund Deposits that 
may be achieved via higher confidence levels and may also become 
subject to revocation of membership as set forth in Rule 3, Section 6. 
Also, pursuant to Rule 4, the Clearing Fund requirement of UIPs shall 
be no less than $1 million, whereas the current minimum is 
$100,000.\22\
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    \21\ The MBSD rules will provide FICC with the discretion to 
increase the confidence level if it determines that it is 
appropriate to do so with respect to a particular Clearing Member or 
Members generally. As an initial matter, UIPs will begin the service 
with a confidence level of 99.5%.
    \22\ The MBSD rules will provide FICC with the discretion to 
increase the minimum charge if it determines that it is appropriate 
to do so with respect to a particular member or members generally. 
As an initial matter, UIPs will begin the service with the higher 
minimum of $1 million.
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C. Clearing Fund and Loss Allocation

    MBSD Rule 4, ``Clearing Fund and Loss Allocation'' will set forth 
requirements with respect to Clearing Fund \23\ deposited by Clearing 
Members.
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    \23\ The MBSD is adopting the term ``Clearing Fund'' to replace 
``Participants Fund.''
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    The MBSD has already standardized the clearing and settlement 
processes. The objective in offering CCP services is to leverage 
potential means by which risks can be curbed, efficiency increased, and 
operational risk within the marketplace can be reduced.
    The conversion of the MBSD to a CCP increases the amount of risk 
for the clearing agency. The purpose of a CCP is to ensure settlement 
can continue in the face of a member firm failure, and to reduce the 
risk of loss due to that member failure. A CCP interposes itself as a 
legal counterparty to both sides of a transaction. The CCP assumes the 
counterparty credit risk of the other Clearing Members which primarily 
includes (1) The market risk associated with liquidating the defaulted 
Member's portfolio, and (2) the liquidity risk associated with 
maintaining sufficient liquid resources to finance the defaulted 
Member's scheduled settlement obligations.
    The MBSD has established a robust risk management framework to 
manage the credit risks from its Clearing Members and the credit risks 
involved with its payment, clearing and settlement process.
    The MBSD relies on five different controls to manage its 
counterparty risk: Member standards, initial/variation margins, back/
stress testing, position/risk monitoring and non-margin collateral. The 
first set of controls aims to prevent the CCP from dealing with or 
reducing activity of counterparties that have unacceptably high 
probabilities of default. As noted above in section B, concurrent with 
the introduction of CCP services the MBSD will increase its minimum 
financial standard for clearing membership eligibility to mirror GSD 
eligibility standards and enhance its risk monitoring for UIPs.
    The second line of defense is the margins collected from 
counterparties in the form of cash and highly liquid government 
securities in the Clearing Fund. The dual purpose of the Clearing Fund 
is to provide readily accessible liquidity to facilitate settlement and 
reduce loss-related costs which may be incurred in the event of a 
Clearing Member's insolvency or failure to fulfil its contractual 
obligations to the MBSD. Margins are intended to cover possible losses 
between the time of default of a counterparty, at which point the CCP 
would inherit its positions, and the close-out of these positions 
through selling or hedging. For this purpose, the MBSD marks member 
portfolios to the market on a daily basis and charges variation margins 
accordingly, and establishes initial margins to cover a minimum 99th 
percentile of expected possible losses that could arise over a 3-day 
settlement period utilizing a VaR-based approach.\24\ In order to 
enhance the MBSD's risk framework and concurrent with the introduction 
of CCP services, the MBSD will add two new components--the margin 
requirement differential and the coverage charge--to the Clearing Fund, 
as well as additional MBSD mark-to-market items related to the new pool 
netting services. The MBSD also has the ability to collect charges 
above the systemically generated Clearing Fund charges when deemed 
appropriate in order to protect the corporation and its members. If any 
loss were incurred in the liquidation of a Member that was not covered 
by the Member's Clearing Fund deposit or amounts available under the 
cross guaranty arrangement to which FICC is a party, the MBSD would 
invoke its loss allocation process.
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    \24\ An index-based haircut methodology will be used for 
securities with insufficient pricing data.
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    The MBSD uses regular back and stress testing to monitor the 
sufficiency of collected margin levels vis-a-vis the risk represented 
by the 99th percentile of expected possible losses from member 
portfolios and to monitor its tail risk exposure that is beyond the 
99th percentile. If a member portfolio does not pass the back test, 
additional margin will be collected via the coverage charge. Stress 
tests are also used to evaluate margin adequacy. The MBSD's framework 
reflects stress events from the last 10 years as well as special stress 
events that were not within the past 10 years and takes the form of 
swap rate shifts and credit spread shocks that reflect market 
conditions for the instruments that the MBSD clears or holds as 
collateral. As described in the Clearing Fund section below, the MBSD 
analyzes and reviews on an intraday basis certain components of the 
Clearing Fund that are recalculated using updated positions and prices 
if there is increased exposure in a member's portfolio intraday. In 
addition, the MBSD may at its discretion call for additional collateral 
on an intraday basis if exposures are in excess of predefined 
thresholds.
    Finally, aside from the risk of loss that could be encountered from 
a Clearing Member failure, a central counterparty could also face 
liquidity risk, defined as the risk that the central counterparty has 
insufficient financial resources to cover a default by a Clearing 
Member to which it has the largest exposure. To that end, the MBSD 
maintains sufficient resources to meet its observed liquidity risk. The 
Clearing Fund would be the primary source to fulfil the liquidity need 
incurred if MBSD had to complete settlement on behalf of the defaulting 
Clearing Member. Other conventional funding tools such as loans secured 
via the MBSD clearing banks and/or tri-party repo transactions would 
also be used to fulfil the liquidity need, but if those were 
unavailable or insufficient, the MBSD would invoke the ``Capped 
Contingency Liquidity Facility,'' described in section G below to 
provide additional financing in the event of a member default.
    Tail risk is one of the risks the MBSD has to manage. The MBSD 
addresses this through a continuous process of (1) Reviewing margining 
methodologies with stakeholders; (2) analysis and monitoring of margin/
collateral requirements; (3) actively reviewing and timely/appropriate 
action on market conditions and credit events; (4) reviews of back/
stress tests, and (5) identifying, assessing and managing risks 
associated with the products and services provided by the MBSD and 
FICC.
1. Clearing Fund
    The underlying Clearing Fund methodology is designed primarily to 
account for market risks associated with a Clearing Member's unsettled 
portfolio. The Clearing Fund model is back tested on a monthly basis 
and periodically validated by outside experts. Additional charges and 
premiums may be considered to address additional risks (i.e., credit, 
reputation, legal, etc.) or non-compliance with MBSD rules. The 
Clearing Fund is calculated every business day for each MBSD Clearing 
Member.

[[Page 77291]]

    Clearing Fund requirements will be calculated in accordance with 
the VaR model. The Clearing Fund components will consist of the VaR 
charge,\25\ the coverage charge, the margin requirement differential 
charge and the deterministic components charge (which will include the 
mark-to-market charges, cash obligation items and accrued principal and 
interest). The VaR methodology will utilize the prior 252 days of 
historical information for cash positions, including prices, spreads, 
and market variables to simulate the market environments in the 
forthcoming three days. Projected portfolio losses are then calculated 
assuming these simulated environments actually will be realized. The 
coverage charge is an additional charge to bring the Clearing Member's 
coverage to a targeted confidence level. The margin requirement 
differential considers intra-day portfolio variations and estimates the 
potential increased risk intra-day and the risk that the next margin 
call will not be satisfied. The deterministic risk component combines 
the mark-to-market of the portfolio, gain or loss for the difference 
between the original contract value and the internally generated 
netting price derived from the TBA netting process, principal and 
interest adjustments on failed positions, and other miscellaneous cash 
items. The deterministic risk component can result in an increase or 
decrease to a member's total clearing fund requirement.
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    \25\ The definition of ``VaR Charge'' (which is referred to as 
``VaR Component'' in the current rules) is being amended to remove 
the reference to the application of ``minimum amounts'' to such VaR 
Charge. The MBSD is currently applying a minimum 5-basis point 
charge which will not be applicable when the MBSD CCP becomes a CCP 
because of the addition of the other components to the overall 
Clearing Fund calculation. Minimum Clearing Fund deposit amounts per 
Rule 4 remain applicable.
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    Requirements as to acceptable forms of collateral will remain 
unchanged in the new MBSD rulebook.
    In order to further mitigate risk, and as part of FICC's efforts to 
enhance its intraday monitoring capabilities, FICC has determined to 
expand its intraday monitoring \26\ to recalculate the mark-to-market 
elements of the deterministic risk component. This component of the 
risk calculations will be updated at least hourly using intraday 
pricing and position feeds for FICC members and compared against the 
amounts that were previously collected in the Clearing Fund. If the 
exposures increase above certain defined thresholds Risk Management 
staff will be alerted to consider additional intraday margin calls, 
outside of the formal Clearing Fund collection process. The proposed 
rule change provides that such calls would need to be satisfied by the 
affected members within one hour of FICC's notice. The initial 
thresholds will be based on changes to a Clearing Member's position 
size, composition and price changes on the constituent securities. 
Qualitative factors including, but not limited to, Watch List status 
and internal rating will also be considered in the application of 
intraday mark-to-market.
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    \26\ This proposal is different from the intra-day margining 
that was approved by the Commission to implement the single-pot 
margining with New York Portfolio Clearing, LLC (``NYPC''). See 
Securities Exchange Act Release No. 63986 (Feb. 28, 2011), 76 FR 
12144 (Mar. 4, 2011). In the FICC-NYPC rule filing, established 
second scheduled calls were approved. In the present proposal, FICC 
is seeking the authority to require additional margin outside of the 
formal calls.
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2. Other Changes--Clearing Fund
Use of Payments and Deposits
    FICC is proposing to revise Rule 4 ``Clearing Fund and Loss 
Allocation'', Section 5 ``Use of Payments'' to include additional 
disclosure relating to the Corporation's use of a Clearing Member's 
deposits and payments for temporary financing needs. The proposed 
revisions also clarify that whenever the Clearing Fund is charged for 
any reason, other than to satisfy a clearing loss attributable to a 
Clearing Member solely from that Clearing Member's Clearing Fund 
deposit, the Corporation will provide the reasons therefore to each 
Clearing Member. This would apply when the Clearing Fund is charged, 
meaning the Corporation has applied the Clearing Fund for more than 30 
days and is allocating the amount as a loss or for other loss 
allocation purposes.
3. Loss Allocation
    In this CCP proposal, FICC is also introducing a new loss 
allocation methodology for the MBSD. If a defaulting Clearing Member's 
Clearing Fund and any amounts of the Defaulting Member available under 
a cross-guaranty agreement are not sufficient to cover losses incurred 
in the liquidation of the defaulting Clearing Member's positions (the 
``Remaining Losses''), the MBSD's loss allocation methodology will be 
invoked. Under this proposed loss allocation methodology, Remaining 
Losses will first be allocated to the retained earnings of FICC 
attributable to the MBSD, in the amount of up to 25 percent of the 
retained earnings or such higher amount as may be approved by the Board 
of Directors of FICC. If a loss still remains, MBSD Clearing Members 
are placed into one of two tiers for loss allocation purposes: Tier One 
members are subject to loss mutualization, whereas Tier Two members are 
not subject to loss mutualization.\27\ FICC will divide the Remaining 
Losses between the Tier One members and Tier Two members. The division 
of Remaining Losses is based on the amount each solvent Clearing Member 
would have lost or gained if it had closed out its original outstanding 
trades with the defaulting Clearing Member on a bilateral basis.\28\ 
FICC then will determine the relevant share of each Tier One member's 
bilateral losses (members with a bilateral liquidation profit are 
ignored) in the total of all members' bilateral losses and sum these 
shares to determine the Tier One Remaining Loss. Similarly, FICC will 
determine the relative share of each Tier Two member's bilateral loss 
in the total of all members' bilateral losses and sum these shares to 
determine the Tier Two Remaining Loss.
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    \27\ Tier Two members are those that are legally prohibited from 
participating in loss mutualization. Currently, only investment 
companies registered under the Investment Company Act of 1940, as 
amended, qualify as Tier Two members.
    \28\ With respect to brokered trades, in the MBSD such trades 
are done on a ``give-up basis,'' and brokers are thus not considered 
parties to fully-matched trades. However, for purposes of loss 
allocation, broker members will be subject to loss allocation for 
certain partially-matched trades. Brokers are considered Tier One 
members, and as such will be subject to loss mutualization.
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    Tier One Remaining Losses will be allocated to Tier One members 
first by assessing the Required Fund Deposit of each such Member in the 
amount of up to $50,000, equally. If a loss remains, Tier One members 
will be assessed ratably, in accordance with the respective amounts of 
their Required Fund Deposits, based on the average daily amount of the 
Clearing Member's Required Fund Deposit over the prior twelve months. 
Tier Two Remaining Loss will be allocated to Tier Two Clearing Members 
based on each Tier Two member's original trading activity with the 
Defaulting Member that resulted in a loss. Tier Two members will only 
be subject to loss to the extent they originally traded with the 
Defaulting Member consistent with regulatory requirements applicable to 
the Tier Two members. FICC shall assess such loss against the Tier Two 
members ratably based upon their loss as a percentage of the entire 
amount of the Tier Two Remaining Loss. This ensures that Tier Two 
members are not subject to loss mutualization. Tier Two counterparties 
will be liable for losses related to both direct and brokered trades 
\29\ including partially-matched

[[Page 77292]]

trades for which the Tier Two member did not submit a statement to FICC 
denying the existence of the trade.\30\
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    \29\ Brokered trades involve a broker intermediary between two 
dealers. Each dealer and broker must submit the trade details to the 
MBSD for trade comparison. This means that each dealer submits 
against the broker and the broker submits against each dealer. A 
fully matched trade will be achieved when both dealers match against 
the broker (i.e. all submissions discussed above match). With a 
fully matched trade, both dealers assume principle status which 
results in the broker having no settlement obligations with respect 
to the trade; the broker cannot be subject to any loss with respect 
to such trade. A partially matched trade results when only one of 
the two submissions achieves a bilateral match versus the broker. 
The dealer who has matched with the broker will have a settlement 
guarantee and is subject to Clearing Fund requirements with respect 
to such trade. If the unmatched dealer submits a statement to FICC 
denying the existence of the trade, the broker becomes the other 
side of the trade which means that the broker is responsible for 
such trade from a risk management perspective and loss allocation. 
If the unmatched dealer does not submit a statement to FICC denying 
the existence of the trade, the dealer becomes responsible for the 
settlement and risk management and the broker is released from these 
responsibilities.
    \30\ To illustrate the proposed MBSD Tier One (``T1'')/Tier 2 
(``T2'') loss allocation rules, consider an example where the $20 
million Clearing Fund requirement of an insolvent MBSD member X 
turns out to be insufficient to cover the $30 million liquidation 
loss that the MBSD incurred as a result of closing out all of X's 
open positions. If X doesn't have any excess collateral, MBSD would 
need to allocate a $10 million remaining loss.
    Assume that X has unsettled trades with three Tier One original 
counterparties (T1A, T1B and T1C) and three Tier Two original 
counterparties (T2A, T2B and T2C), all executed directly.
    Further assume that the bilateral liquidation results of X's 
solvent original counterparties are as follows:
    T1A: $5 million; T1B: ($5 million); T1C: ($15 million); T2A: 
($20 million); T2B: ($10 million); T2C: $15 million; Total: ($30 
million).
    Also assume that there are no secondary defaults and no off-the-
market trades.
    Based on these assumptions, the bilateral Tier One liquidation 
losses amount to $20 million ($5 million attributable to T1B and $15 
million attributable to T1C), while the bilateral Tier Two 
liquidation losses amount to $30 million ($20 million attributable 
to T2A and $10 million attributable to T2B). This means that out of 
a total of $50 million bilateral liquidation losses, 40% or $20 
million can be attributed to Tier One counterparties and 60% or $30 
million to Tier Two counterparties. As a result, the Tier One 
remaining loss would be $4 million (i.e., 40% of the MBSD's $10 
million overall remaining loss) and the Tier Two remaining loss 
would be $6 million (i.e., 60% of the MBSD's $10 million overall 
remaining loss).
    Given that T2A's and T2B's bilateral losses represent \2/3\ and 
\1/3\ respectively of the Tier Two Remaining Loss, T2A's loss 
allocation will be $4 million and T2B's loss allocation will be $2 
million.
    The $4 million Tier One Remaining Loss would first be assessed 
equally to each Tier One member's clearing fund, up to an amount of 
$50,000 per Tier One member. If a loss still remains, the amount is 
allocated among Tier One members, pro-rata based on each Tier One 
member's average daily level of clearing fund over the prior twelve 
months (or shorter period if a member did not maintain a clearing 
fund deposit over the full twelve month period).
    Note that the loss allocation results are not impacted by 
whether the defaulting Clearing Member is a Tier One or a Tier Two 
member.
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D. TBA Trade Processing

    Rule 5, ``Trade Comparison'' and Rule 6, ``TBA Netting'' of the 
proposed MBSD rulebook mirror current MBSD rules as these processes 
will remain unchanged from an operational perspective. Members will 
continue to submit TBA transactions and SPTs to the MBSD through the 
RTTM\TM\ system to bilaterally match their trade data with trade data 
submitted by their counterparties. The significant change to the 
comparison rule is the introduction of FICC's guarantee. Transactions 
will be guaranteed for settlement at the point of comparison.\31\ SBOD 
TBA trades will proceed through the TBA/SBO netting process as they do 
today. After netting, members will use the EPN Service to allocate 
pools in satisfaction of open TBA obligations (both trade-for-trade and 
SBO transactions). In addition, members will now be required to submit 
pool allocation information to the MBSD's RTTM\TM\ system \32\--pool 
allocation processing will proceed as described below.
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    \31\ While SPTs will be guaranteed at the point of comparison, 
they will not be eligible for processing through the pool comparison 
or pool netting systems. All SPTs will settle outside of FICC with 
original counterparties.
    \32\ Because Clearing Members will be required to allocate pools 
via EPN and RTTM\TM\ in order for pool allocations to proceed to 
pool comparison and netting, all MBSD Clearing Members will be 
required to be EPN members.
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E. Pool Allocation Processing

    Pool allocation processing refers to the Clearing Member's 
submission via a RTTM\TM\ message of an allocated pool for matching and 
pool netting services.
    On the allocation date,\33\ Clearing Members will also be required 
to submit pool allocation information (called ``Pool Instructs'') via 
the RTTM system for pool comparison (which is a pre-requisite for pool 
netting). As with EPN allocation, Pool Instructs are to be submitted 
against all TBA obligations, whether stemming from Trade-for-Trade 
activity or TBA Netting. As noted previously, allocations are not 
performed for SPTs and they are not eligible for pool netting services 
and Clearing Members may choose not to submit Pool Instructs against 
trades matched with stipulations.\34\
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    \33\ Pool allocation information (also known as ``Pool 
instructs'') may be submitted up to the point that Pool Netting is 
executed.
    \34\ Trades with stipulations are those where certain trade 
terms are agreed to at point of match (e.g., one pool per million); 
under the proposal, Clearing Members will be provided with the 
option to hold out stipulation allocations from the pool netting 
process so that they can preserve their ability to obtain the pools 
that satisfy the stipulations of the trade.
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    Pool data information on Pool Instructs must be bilaterally 
compared (i.e., the mandatory comparison pool data submitted by the 
seller must match the mandatory comparison pool data submitted by the 
buyer) in order for the Pool Instructs to be eligible for consideration 
for pool netting. Pool Instructs must further be ``assigned'' by the 
MBSD to a valid, open TBA position, meaning that the trade terms 
submitted on the Pool Instruct must match the trade terms of a TBA 
CUSIP that has sufficient open position. Only compared and assigned 
Pool Instructs are evaluated for inclusion in pool netting.
    Pool allocation processing will be governed by Rule 7, ``Pool 
Comparison,'' Rule 8, ``Pool Netting,'' and Rule 9, ``Pool 
Settlement''. Once netting eligible pools are defined by the MBSD, each 
allocation will be netted into a single net position per pool CUSIP. 
Pool netting results will be novated, meaning that open TBA obligations 
will be terminated and replaced with resultant pool receive, deliver 
and associated payment obligations which will settle versus FICC as 
central counterparty.

F. Settlement

1. Settlement With FICC as Counterparty
    As stated above, obligations generated by the pool netting system 
will settle versus FICC--this settlement process will be governed by 
Rule 9, ``Pool Settlement with the Corporation.'' Clearing Members will 
be required to designate a clearing bank for purposes of delivering 
securities to, and receiving securities from, the MBSD in satisfaction 
of settlement obligations. All deliveries and receipts of securities in 
satisfaction of pool deliver obligations and pool receive obligations 
will be required to be made against simultaneous payment. These 
securities settlement procedures mirror the current GSD securities 
settlement rule.\35\
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    \35\ GSD Rule 12, ``Securities Settlement.''
---------------------------------------------------------------------------

2. Settlement Outside of FICC
    For those allocated pools (or pools matched as trade terms on SPT 
trades) which are not processed through the pool netting system, 
Clearing Members will be required to settle such transactions 
bilaterally with applicable settlement counterparties, outside of FICC. 
Please refer to ``Processing Overview'' referenced above, for a 
description of the trades that would be required to settle outside of 
FICC. It should be noted that such trades remain guaranteed for 
settlement by FICC; such

[[Page 77293]]

trades were guaranteed at the time of comparison. Pursuant to Rule 10, 
``Notification of Settlement'', Clearing Members must continue to 
submit to FICC Notifications of Settlement (``NOS''). NOS will be 
required to be received on the applicable clearance date for each 
transaction. When the MBSD receives NOS from each counterparty to a 
transaction, the MBSD will report clearance of the applicable 
transaction back to each Clearing Member, as is done today. At this 
point, the MBSD will stop collecting margin on the transaction, and 
will no longer be responsible for principal and interest payments.
3. Cash Settlement
    Rule 11, ``Cash Settlement with the Corporation'' provides that 
cash settlement processing will continue to be done via the Federal 
Reserve's National Settlement Service and through the use of cash 
settling banks appointed by Clearing Members. Several items have been 
added to the calculation of each Clearing Member's cash settlement 
obligation, including: (a) A ``net pool transaction adjustment 
payment'' (to reflect the difference between the pool net price \36\ 
and a settlement price established at the TBA level); (b) principal and 
interest payment amounts related to fails, and (c) a ``clearance 
difference amount'' \37\ (to take into account the delivery to FICC of 
mispriced securities by a member).
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    \36\ ``Pool Net Price'' is defined in the proposed rules as the 
uniform price for a pool (expressed in dollars per unit of par 
value), not including accrued interest, established by the 
Corporation on each business day, based on current market 
information for each eligible security.
    \37\ ``Clearance Difference Amount'' is defined in the proposed 
rules as the absolute value of the dollar difference between the 
settlement value of a pool deliver obligation or a pool receive 
obligation and the actual value at which such pool deliver 
obligation or pool receive obligation was settled.
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G. Additional Rule Changes

1. Capped Contingency Liquidity Facility
    FICC is proposing to add a provision to the proposed MBSD rules 
that introduces a ``Capped Contingency Liquidity Facility,'' which is a 
procedure designed to ensure that the MBSD has sufficient liquidity 
resources to cover the largest failure of a family of accounts. This 
facility will only be invoked if FICC declares a default or a cease to 
act against a Clearing Member, i.e., a defaulting Clearing Member and 
FICC does not have the ability to obtain sufficient liquidity through 
its Clearing Fund cash deposits and its established repurchase 
agreement arrangements (``CCLF Event''). FICC believes that the Capped 
Contingency Liquidity Facility provides Clearing Members with finality 
of settlement and allows firms to prepare for and manage their 
potential financing requirements in the event of a Member's default. 
Once a CCLF Event has been declared, FICC will contact Clearing Members 
that are due to deliver obligations to FICC that are owed to a 
defaulting Clearing Member. FICC will either cancel the Clearing 
Member's obligations or instruct the Clearing Member to hold the 
obligations (or a portion thereof) and await instructions as to when to 
make these deliveries. With respect to the obligations subject to 
financing (the ``Financing Amount'') up to the Clearing Member's 
defined liquidity contribution cap (the ``Defined Capped Liquidity 
Amount''),\38\ FICC as counterparty, will enter into repurchase 
agreements with the Clearing Member equal to the Financing Amount 
pursuant to the terms of the deemed 1996 SIFMA Master Repurchase 
Agreement (without referenced annexes). If a liquidity need still 
exists (the ``Remaining Financing Amount''), FICC will inform Clearing 
Members that are below the Defined Capped Liquidity Amount and also 
inform Clearing Members that do not have a delivery obligation to 
defaulting Clearing Member.\39\ After these Clearing Members have been 
notified, FICC will distribute the remaining financing need to such 
Clearing Members on a pro rata basis and enter into repurchase 
agreements pursuant to the terms of the deemed 1996 SIFMA Master 
Repurchase Agreement (without referenced annexes). These transactions 
would remain open until FICC completes the liquidation of the 
underlying obligations and a haircut based on market conditions will be 
applied to the transactions.
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    \38\ The ``Defined Capped Liquidity Amount'' is the maximum 
amount that a Clearing Member shall be required to fund during a 
CCLF Event. The Defined Capped Liquidity Amount will be established 
as follows:
    (a) For those Clearing Members that are eligible for and that 
have established borrowing privileges at the Federal Reserve 
Discount Window or for those Clearing Members who have an affiliate 
that is eligible for and has established borrowing privileges at the 
Federal Reserve Discount Window, FICC will conduct a study every six 
months, or such other time period as FICC shall determine from time 
to time as specified in Important Notices to Clearing Members, to 
determine each Clearing Member's largest liquidity requirement for 
the applicable time period based on a Clearing Member's sell 
positions versus other Clearing Members at the family level on a 
bilateral net basis within a TBA CUSIP. Based on the overall study, 
FICC will define an adjustable percentage (the initial percentage 
will be set at 60%), as determined by FICC from time to time, and 
multiply that percentage amount against the maximum amount to 
establish each Clearing Member's Defined Capped Liquidity Amount; 
and
    (b) For those Clearing Members that are ineligible for or have 
not established borrowing privileges at the Federal Reserve Discount 
Window and for those Clearing Members that do not have an affiliate 
that is eligible for or has established borrowing privileges at the 
Federal Reserve Discount Window, FICC will conduct a study every 
month or such other time period as FICC shall determine from time to 
time as specified in Important Notices to Clearing Members, to 
determine each Clearing Member's largest liquidity requirement for 
the applicable time period based on a Clearing Member's sell 
positions versus other Clearing Members at the family level on a 
bilateral net basis within a TBA CUSIP. The Clearing Member's 
largest liquidity requirement for the past month, adjusted in each 
case of a CCLF Event to be no greater than the actual Pool Delivery 
Obligation to the defaulting Clearing Member, will represent the 
Clearing Member's Defined Capped Liquidity Amount. Firms in this 
category will have a defined non-adjustable percentage amount set to 
100%. Clearing Members in this category will not be required to 
finance any Remaining Financing Amount.
    (c)
    \39\ Applicable to those Clearing Members that are eligible for 
and that have established borrowing privileges at the Federal 
Reserve Discount Window or to those Clearing Members who have an 
affiliate that is eligible for and has established borrowing 
privileges at the Federal Reserve Discount Window.
---------------------------------------------------------------------------

    Once FICC completes the liquidation of the underlying obligation, 
FICC will instruct the Clearing Member to deliver the securities back 
to FICC. FICC will then close the repurchase transaction and deliver 
the securities to complete settlement on the contractual settlement 
date of the liquidating trade. Because FICC would be receiving and 
delivering securities on the same day, FICC would not have a liquidity 
need resulting from the transaction of a defaulting Clearing Member.
    The applicable provisions of Rule 17 outline detailed procedures of 
the mechanism that will be followed should FICC declare a Capped 
Contingency Liquidity Facility event.
2. Corporation Default
    FICC has been approached by some of its dealer Clearing Members who 
have requested that FICC add provisions to the rules of the MBSD CCP 
\40\ to make explicit the close-out netting of obligations running 
between FICC and its Clearing Members in the unlikely event that FICC 
becomes insolvent or defaults in its obligations to its Clearing 
Members which are included in the proposed rule change. The firms have 
stated that the proposed rule changes will provide clarity in their 
application of balance sheet netting to their positions with FICC under 
U.S. GAAP in accordance with the criteria specified

[[Page 77294]]

in the Financial Accounting Standards Board's Interpretation No. 39, 
Offsetting of Amounts Related to Certain Contracts (FIN 39). The firms 
have stated further that the provisions would allow them to comply with 
Basel Accord Standards relating to netting. Specifically, firms are 
able to calculate their capital requirements on the basis of their net 
credit exposure where they have legally enforceable netting 
arrangements with their counterparties, which includes a close-out 
netting provision in the event of the default of the counterparty (in 
this case, the division of the clearing corporation acting as a central 
counterparty).
---------------------------------------------------------------------------

    \40\ The firms have also requested the filing with respect to 
the GSD and this change was submitted as a rule filing and approved 
by the Commission. See Securities Exchange Act Release No. 63038 
(Oct. 5, 2010), 75 FR 62899 (Oct. 13, 2010) [SR-FICC-2010-04].
---------------------------------------------------------------------------

H. Fails Charge

    The Treasury Markets Practices Group (the ``TMPG''), a group of 
market participants active in the Treasury securities market sponsored 
by the Federal Reserve Bank of New York (the ``FRBNY''), has been 
addressing the persistent settlement fails in Agency debt and mortgage-
backed securities transactions that have arisen, in part, due to low 
interest rates.
    To encourage market participants to resolve fails promptly, the 
TMPG recommends expanding the applicability of the fails charge (which 
currently applies to Treasury securities transactions) to the Agency 
debt and MBS markets with the objective of reducing the incidence of 
delivery failures and supporting liquidity in these markets.
    The fails charge will apply to certain trades settled in the MBSD, 
i.e., settlement of pools versus FICC involving failing agency MBS 
issued or guaranteed by Fannie Mae, Freddie Mac and Ginnie Mae. 
Pursuant to the TMPG recommendations, a fails charge will not apply to 
TBA and pool level ``round robins.'' \41\
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    \41\ ``Round robins'' are a circular series of transactions 
between multiple parties where there is no ultimate long and short 
position to be settled. For example, if A sells to B and B sells to 
C and C sells to A, this group of transactions would constitute a 
``round robin''. In a round robin, there is no settlement of 
securities, but there is satisfaction of money across all interested 
parties. There can be a fail in a round robin transaction when a 
deliver obligation arises because the trade submission of certain 
members of the round robin do not match. The MBSD will not apply the 
fails charge to a round robin if each affected Clearing Member in 
the round robin provides the MBSD with the required information to 
resolve the trade.
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    The proposed charge will be equal to the greater of (a) 0 percent 
and (b) 2 percent per annum minus the Federal funds target rate. The 
charge accrues each calendar day a fail is outstanding. The MBSD will 
not impose a fails charge if delivery occurs on either of the two 
business days following the contractual settlement date. The MBSD will 
not employ a minimum fail charge amount, but, instead, will apply the 
fails charge to any pool for which delivery has not occurred within the 
two business day grace period.\42\ Each business day, the MBSD will 
provide reports reflecting fail charge amounts to Clearing Members and 
will generate a consolidated monthly report at month end. Failing 
parties with a net debit (i.e., the fails charge amounts such party 
owes exceed the fails charge amounts it is owed) will be required to 
pay such net amount in respect of those pools that have settled the 
previous month and which are reflected in the previous month's 
consolidated month end report by the Class ``B'' payable date (as 
established by SIFMA guidelines) of the month following settlement in 
conjunction with other cash movements. The fails charge funds received 
by the MBSD then will be used to pay Clearing Members with fail net 
credits.
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    \42\ Fails charges are calculated between legal entities that 
are counterparties to one another in an MBS transaction. Because the 
MBSD is acting as a counterparty in multiple transactions, the MBSD 
may owe a net credit to one counterparty which is financed by the 
net debits owed to the MBSD by multiple counterparties (some of 
which may be below the minimum $500 threshold identified in the TMPG 
recommendations.) To ensure that the MBSD will be in a position to 
deliver the net credits it owes, the MBSD is proposing to its 
Clearing Members that it will not employ a minimum fails charge for 
either debits or credits. Current Participants were informed of this 
deviation from the TMPG recommendations via Important Notice (MBS 
119.11) and have not objected.
---------------------------------------------------------------------------

    The MBSD will implement a rate change procedure so that if fails 
accrue at one rate and the rate changes, the fail will keep the 
original accrual and new fails calculations will be subject to the new 
rate. When there is a substitution of the underlying pool, the fails 
charge will be calculated pursuant to the above formula, using (in the 
formula) the Fed funds target rate for each day of the substitution 
period beginning on the contractual settlement date.
    In the event that the MBSD is the failing party because (i) The 
MBSD received agency MBS issued or guaranteed by Fannie Mae, Freddie 
Mac, or Ginnie Mae too near the close of Fedwire for redelivery or for 
any other reason or (ii) MBSD received a substitution of a pool deliver 
obligation of agency MBS issued or guaranteed by Fannie Mae, Freddie 
Mac or Ginnie Mae too near the specified time in the SIFMA 48-hour rule 
for same day redelivery of securities or for any other reason, the 
fails charge will be distributed pro-rata to the Clearing Members based 
upon usage of the MBSD's services.
    The MBSD will not guaranty fails charge proceeds in the event of a 
default (i.e., if a defaulting Clearing Member does not pay its fail 
charge, Clearing Members due to receive fails charge proceeds will have 
those proceeds reduced pro-rata by the defaulting Clearing Member's 
unpaid amount).

    Example 1: A delivery is contracted to occur on settlement date 
(S), a Tuesday, but does not occur until the second business day 
following contractual settlement, Thursday (S+2). The Clearing 
Member would not be subject to a fails charge because delivery 
occurs within the two business days following the contractual 
settlement date.
    Example 2: A delivery is contracted to occur on settlement date 
(S), a Tuesday, but does not occur until the third business day 
following contractual settlement, Friday (S+3). The Clearing Member 
would be subject to a three-day fails charge.
    Example 3: A delivery is contracted to occur on settlement date 
(S), a Wednesday, but does not occur until the third business day 
following contractual settlement, Monday (S+3). The Clearing Member 
would be subject to a five-day fails charge, as the charge accrues 
on each calendar day in the fail period.
    Example 4: A delivery is contracted to occur on settlement date 
(S), May 10th, but does not occur until the month following the 
contractual settlement date; it settles on June 8th. The Clearing 
Member will not be subject to collection of the fails charge in June 
(the month following the contractual settlement date) because 
delivery did not occur in May. The participant will be subject to 
the collection of the fails charge in July (on the Class ``B'' 
payable date) because delivery occurred in June. The charge will be 
recalculated for 29 days.

    The implementation of a fails charge trading practice in the 
mortgage-backed securities market requires that the current MBSD rules 
be amended to add a new rule (i.e., Rule 12--Fails Charge). This new 
rule specifies the charges levied on any Clearing Member who does not 
satisfy a delivery obligation of securities issued or guaranteed by 
Fannie Mae, Freddie Mac or Ginnie Mae and outlines the exceptions to 
this rule, including a two-day grace period.
Revocation of Charges
    The proposed rule changes provide that FICC's Board of Directors 
(or appropriate Committee thereof) will retain the right to revoke 
application of the charges if industry events or practices warrant such 
revocation.
Timing of Implementation
    Only as it applies to the proposed fails charge, FICC is proposing 
that such fails charges will apply to transactions in agency debentures 
and agency MBS entered into on or after the later of the approval of 
this rule proposal or February 1, 2012, as well as to

[[Page 77295]]

transactions that were entered into, but remain unsettled as of the 
later of the approval of this rule proposal or February 1, 2012. For 
transactions entered into prior to, and unsettled as of, the later of 
the approval of this rule proposal or February 1, 2012, the fails 
charge will begin accruing on the latest of the approval of this rule 
proposal, February 1, 2012, or the contractual settlement date.
I. Suspension of Rules in Emergency Circumstances
    Rule 33, ``Suspension of Rules in Emergency Circumstances'' in the 
proposed MBSD rules has been revised from the equivalent rule in the 
current MBSD rulebook to specify that (1) In the title of the Rule, 
that the rule applies to emergency circumstances, (2) an emergency 
shall exist in the judgement of the FICC Board or Officer, which causes 
the Board or the Officer, as applicable, to believe that an extension, 
waiver or suspension of the MBSD rules is necessary for the Corporation 
to continue to facilitate the prompt and accurate clearance and 
settlement of securities transactions, (3) the Corporation shall notify 
the Commission of such extension, waiver or suspension of the MBSD 
rules within 2 hours of such determination,\43\ (4) the written report 
of such extension shall include the nature of the emergency, along with 
the other requirements listed in the current rules and (5) such written 
report shall be submitted to the Commission no later than three (3) 
calendar days after the implementation of the extension, waiver or 
suspension of the MBSD rules.
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    \43\ But no later than one (1) hour before the close of the 
Federal Reserve Banks' Fedwire Funds Service if such determination 
relates to the extension of time for settlement and is made on a 
settlement day.
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J. Ceasing To Act, Wind-Down Members and Insolvency

    Rule 14, ``Restrictions on Access to Services'', Rule 15, ``Wind 
Down of a Member,'' Rule 16, ``Insolvency of a Member,'' and Rule 17, 
``Procedures for When the Corporation Ceases to Act,'' mirror the 
current GSD rules, but have been conformed to apply to the specifics of 
MBSD processing as applicable. For example, upon the MBSD ceasing to 
act for a Clearing Member, Members will be required to submit immediate 
NOS so that the MBSD has all necessary settlement information with 
respect to a defaulting Member to effect a close-out of such Member. In 
addition, the MBSD will have the right, with respect to specified pool 
trades, to substitute alternate pools as necessary.\44\
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    \44\ As is the case under Rule 4, ``Clearing Fund and Loss 
Allocation'', in the event of a close out of a defaulting Member, 
broker members will be responsible for partially-matched trades for 
which FICC has received a statement denying the existence of the 
trade.
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K. Other \45\
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    \45\ It should be noted that DTCC has an Audit Committee and 
such Committee would not be dismantled without prior notification to 
the Commission.
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    a. It should be noted that certain current MBSD rules will not be 
included in the proposed MBSD rules. These are as follows:
     With respect to Article III (Participants), in the current 
MBSD rules: Rule 1, ``Requirements Applicable to Participants and 
Limited Purpose Participants''; Section 5, ``Supplemental Agreement of 
Participants and Limited Purpose Participants''; and Section 14 
``Special Provisions Applicable to Partnerships'' are not included in 
the proposed MBSD rules because each of these rules is no longer 
necessary. Proposed Rule 2A serves to harmonize the attached proposed 
MBSD rules with the GSD rules on this subject. Rule 1, ``Requirements 
Applicable to Participants and Limited Purpose Participants'' Section 
15 ``Special Provisions Applicable to Non-Domestic Participants'' is 
not included in the proposed MBSD rules because as with the GSD, the 
MBSD will be using the Netting Agreement for foreign members and not 
the master agreement format. Proposed Rule 2A, ``Initial Membership 
Requirements'', Section 5, ``Member Agreement'' covers the provisions 
of the membership agreement generally and thereby serves to harmonize 
the proposed MBSD rules with the GSD rules with respect to this 
subject.
     Rule 3, ``Corporation Declines to Act for a Participant or 
Limited Purpose Participant'' Section 2 ``Other Grounds for Ceasing to 
Act for a Participant or Limited Purpose'' is not included in the 
proposed MBSD rules because it is being replaced by proposed MBSD Rule 
14 ``Restrictions on Access to Services'' and Rule 16 ``Insolvency of a 
Member'' which cover the same matters and harmonize these provisions 
with those in the GSD rules.
     In an effort to harmonize with the GSD rules, Rule 3, 
``Corporation Declines to Act for a Participant or Limited Purpose 
Participant'' Section 3 is not reflected in the proposed MBSD Rules. We 
do not believe it is necessary to state the current MBSD concept in the 
proposed MBSD rules because it would apply regardless of whether it is 
stated in the rules. Rule 3, ``Corporation Declines to Act for a 
Participant or Limited Purpose Participant'' Sections 5(a) 
``Disposition of Open Commitments'' is not included in the proposed 
MBSD rules because FICC does not accept Letters of Credit as a 
permissible form of Clearing Fund collateral as a routine matter; 
however, FICC reserves the right to accept this type of collateral, if 
needed. In addition, the current MBSD rule addresses the liquidation of 
other types of collateral posted by the defaulting Member. Under the 
proposed MBSD rule, close out processes, in general, are covered by 
Rule 17, which has been drafted to be harmonized with the equivalent 
GSD Rule to the extent possible. Section 5(c) of the current MBSD Rule 
3 in Article III has not been carried into the proposed rulebook 
because these current provisions speak to non-defaulting Members 
engaging in the close-out of the defaulting Member's positions, which 
will be undertaken by the MBSD as CCP under the proposed rules.
     Under the section titled ``Schedule of Charges Broker 
Account Group'' in the appendix to the proposed MBSD rules, FICC no 
longer provides hardcopy output from microfiche. As a result, the 
reference to this charge is being removed.
    b. The following rules do not appear in the current MBSD rules and 
have been added to the proposed MBSD rules in connection with this 
filing:
     Rule 3, Section 6 ``General Continuance Standard'' of the 
proposed MBSD rules includes additional language which states that FICC 
may require that increased or modified Required Fund Deposits be 
deposited by the Clearing Member on the same Business Day on which the 
FICC requests additional assurances from such Member. FICC has always 
interpreted that the current rules permit such action, however, this 
additional language makes it explicit.
     Rule 5, ``Trade Comparison'' Section 1 ``General'' and 
Section 3 ``Trade Submission Communication Methods'' includes 
disclosure relating to the means by which data may be entered and 
submitted to the Corporation. Section 10 ``Modification of Trade Data'' 
of this rule allows the Corporation to unilaterally modify trade data 
submitted by Clearing Members if the Corporation becomes aware of any 
changes to the transaction which invalidates the original terms upon 
which it was submitted or compared and Rule 12 ``Obligations'' of this 
Section discusses the point at which trade data becomes a settlement 
obligation.

[[Page 77296]]

     With respect to the computation of cash balances under 
Rule 11, ``Cash Settlement'', FICC has included a new process with 
respect to fail tracking. Fail tracking is an automated process that 
takes place when the actual settlement date of a transaction is beyond 
the contract date. An adjustment is made when one or more beneficiary 
dates fall between the contract date and the settlement date. The 
adjustment results in the payment of funds from the message originator 
to the message receiver through the Federal Reserve's National 
Settlement Service (``NSS''). This eliminates a cumbersome manual 
process for tracking and clearing adjustments from securities 
transaction counter-parties and it impacts all Fed-eligible mortgage-
backed securities, including Freddie Mac, Fannie Mae and Ginnie Mae.
     With respect to Rule 26, ``Financial Reports and Internal 
Accounting Control Reports'', Section 1 ``Financial Reports'' has been 
revised to state that the Corporation will (1) Prepare its financial 
statements in accordance with Generally Accepted Accounting Principles, 
(2) make unaudited financial statements for the fourth quarter 
available to its Clearing Members within 60 days following the close 
the Corporation's calendar year, and (3) provide a certain level of 
minimum disclosures in its quarterly financial statements. This rule 
has also been revised to include Section 2 ``Internal Accounting 
Control Reports'', which requires the Corporation to make internal 
accounting control reports available to its Clearing Members.
     The proposed MBSD rules also introduce pool netting fees. 
Below is a description of each fee:
    1. Matched Pool Instruct (``PID'') (per side): When a pool instruct 
is matched resulting from either an instruct or an affirmation (with 
our without pending status) a matched fee is charged to both sides.
    2. Customer Delivery Request (``CDR'') Pool Instruct Fee: When a 
pool instruct in a matched status is included in the net (vs. FICC) a 
CDR fee is charged at the instruct PID level to the Clearing Member 
that submitted the CDR.
    3. Cancel of Matched Pool Instruct: This fee is assessed to the 
Clearing Member submitting a unilateral cancel on a matched pool 
instruct.
    4. Pool Obligation: This fee is charged to the net long and short 
Clearing Member when a Pool Obligation (``POID'') is created vs. FICC.
    5. Post Net Subs: Charged to the Clearing Member that submits a 
substitution (the net seller) on a POID vs. FICC.
    6. Clearance of Pool vs. FICC: Fee associated with clearing a POID 
vs. FICC.
    7. Financing Charges (Financing costs are the costs of carrying 
positions overnight): For each other Clearing Member, a pass-through 
charge calculated on a percentage of the total of all such costs 
incurred by the Corporation, allocated by agency product.
    c. The provisions listed below are in the current GSD rules and 
have been further revised in the proposed MBSD rules in an effort to 
harmonize the two rulebooks:

 Rule 3 Section 12 (Excess Capital Premium)
 Rule 5 Section 10 (Modification of Trade Data by the 
Corporation)
 Rule 14 (Restrictions on Access to Services)
 Rule 15 (Wind-Down of a Member)
 Rule 16 (Insolvency of a Member)
 Rule 17 (Procedures For When the Corporation Ceases to Act)
 Rule 17A (Corporation Default)
 Rule 18 (Charges for Services Rendered)
 Rule 19 (Bills Rendered)
 Rule 20 (Admission to Premises of the Corporation, Powers of 
Attorney, etc.)
 Rule 21 (Forms)
 Rule 22 (Release of Clearing Data)
 Rule 23 (Lists to be Maintained)
 Rule 24 (Signatures)
 Rule 25 (Insurance)
 Rule 26 (Financial Reports and Internal Accounting Control 
Reports)
 Rule 27 (Rule Changes)
 Rule 28 (Hearing Procedures)
 Rule 29 (Governing Law and Captions)
 Rule 30 (Limitations of Liability)
 Rule 31 (General Provisions)
 Rule 32 (Cross-Guaranty Agreements)
 Rule 33 (Suspension of Rules in Emergency Circumstances)
 Rule 34 (Action by the Corporation)
 Rule 35 (Notices)
 Rule 36 (Interpretation of Terms)
 Rule 37 (Interpretation of Rules)
 Rule 38 (Disciplinary Proceedings)
 Rule 39 (DTCC Shareholders Agreement)

    (b) By establishing guaranteed settlement and CCP services for the 
MBSD, FICC is promoting efficiencies in the mortgage-backed securities 
marketplace, and for its membership. The MBSD guarantee of settlement 
upon comparison of submitted trades will reduce risks associated with 
defaults among counterparties. The introduction of pool comparison, 
netting, and settlement services will reduce, for MBSD Clearing 
Members, the number of pool settlements and the associated risks and 
costs. In addition, providing CCP services will protect Clearing 
Members from undue risks by allowing FICC to ``step in'' as settlement 
counterparty on eligible trades. The proposed changes are therefore 
consistent with the Securities and Exchange Act of 1934 and the rules 
and regulations promulgated there under, in that they will further the 
abilities of FICC to support the prompt and accurate clearance and 
settlement of securities transactions.

B. Self-Regulatory Organization's Statement on Burden on Competition

    FICC does not believe that the proposed rule change will have any 
impact, or impose any burden, on competition.

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

    Written comments relating to the proposed change have not yet been 
solicited or received. FICC will notify the Commission of any written 
comments received by FICC.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) As the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will: 
(a) By order approve or disapprove such proposed rule change or (b) 
institute proceedings to determine whether the proposed rule change 
should be disapproved.

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 email to [email protected]. Please include 
File Number SR-FICC-2008-01 on the subject line.

[[Page 77297]]

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-FICC-2008-01. This file 
number should be included on the subject line if email 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 FICC and on FICC's 
Web site at http://dtcc.com/downloads/legal/rule_filings/2008/ficc/2008-01_Amendment_No_1.pdf. 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 File Number SR-FICC-
2008-01 and should be submitted on or before January 3, 2012.

For the Commission, by the Division of Trading and Markets, pursuant 
to delegated authority.\46\
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    \46\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-31762 Filed 12-9-11; 8:45 am]
BILLING CODE 8011-01-P