[Federal Register Volume 79, Number 5 (Wednesday, January 8, 2014)]
[Rules and Regulations]
[Pages 1522-1550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31426]



[[Page 1521]]

Vol. 79

Wednesday,

No. 5

January 8, 2014

Part III





Securities and Exchange Commission





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





17 CFR Parts 240 and 249





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





Removal of Certain References to Credit Ratings Under the Securities 
Exchange Act of 1934; Final Rule

  Federal Register / Vol. 79 , No. 5 / Wednesday, January 8, 2014 / 
Rules and Regulations  

[[Page 1522]]


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

SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 240 and 249

[Release No. 34-71194; File No. S7-15-11]
RIN 3235-AL14


Removal of Certain References to Credit Ratings Under the 
Securities Exchange Act of 1934

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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

SUMMARY: The Securities and Exchange Commission (the ``Commission'') is 
adopting amendments that remove references to credit ratings in certain 
rules and one form under the Securities Exchange Act of 1934 (the 
``Exchange Act'') relating to broker-dealer financial responsibility 
and confirmations of securities transactions. This action implements a 
provision of the Dodd-Frank Wall Street Reform and Consumer Protection 
Act (the ``Dodd-Frank Act'').

DATES: The amendments will become effective on July 7, 2014.

FOR FURTHER INFORMATION CONTACT: Michael A. Macchiaroli, Associate 
Director, at (202) 551-5525; Thomas K. McGowan, Deputy Associate 
Director, at (202) 551-5521; Randall W. Roy, Assistant Director, at 
(202) 551-5522; Mark M. Attar, Branch Chief, at (202) 551-5889; Carrie 
A. O'Brien, Special Counsel, at (202) 551-5640; and Rachel B. Yura, 
Attorney, at (202) 551-5729, Office of Financial Responsibility (Net 
Capital, Customer Protection, and Books and Records Requirements); and 
Joseph M. Furey, Assistant Chief Counsel; and Brice D. Prince, Special 
Counsel, Office of the Chief Counsel, at (202) 551-5550 (Confirmations 
of Securities Transactions); Division of Trading and Markets, 
Securities and Exchange Commission, 100 F Street NE., Washington, DC 
20549-7010.

SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to 
Rules 10b-10,\1\ 15c3-1,\2\ 15c3-1a,\3\ 15c3-1e,\4\ 15c3-1f,\5\ 15c3-
3,\6\ and 17a-4 \7\ under the Exchange Act and corresponding amendments 
to the General Instructions to Form X-17A-5, Part IIB.\8\
---------------------------------------------------------------------------

    \1\ 17 CFR 240.10b-10.
    \2\ 17 CFR 240.15c3-1.
    \3\ 17 CFR 240.15c3-1a.
    \4\ 17 CFR 240.15c3-1e.
    \5\ 17 CFR 240.15c3-1f.
    \6\ 17 CFR 240.15c3-3.
    \7\ 17 CFR 240.17a-4.
    \8\ See the General Instructions to Form X-17A-5, Part IIB 
(referenced in 17 CFR 249.617).
---------------------------------------------------------------------------

I. Introduction

    On July 21, 2010, the President signed the Dodd-Frank Act into 
law.\9\ This legislation was enacted to, among other things, promote 
the financial stability of the United States by improving 
accountability and transparency in the financial system.\10\ Section 
939A of the Dodd-Frank Act requires each Federal agency, including the 
Commission, to review any regulation issued by such agency that 
requires the use of an assessment of the creditworthiness of a security 
or money market instrument and any references to or requirements in 
such regulations regarding credit ratings.\11\ The section further 
provides that each such agency shall ``modify any such regulations 
identified by the review . . . to remove any reference to or 
requirement of reliance on credit ratings, and to substitute in such 
regulations such standard of creditworthiness as each respective agency 
shall determine as appropriate for such regulations.'' \12\
---------------------------------------------------------------------------

    \9\ See Public Law 111-203, 124 Stat. 1376 (2010).
    \10\ Id. at Preamble.
    \11\ Public Law 111-203 Sec.  939A(a)(1)-(2). In July 2011, the 
Commission published a report on the staff's review of Commission 
regulations that relied on credit ratings. See Commission Staff, 
Report on Review of Reliance on Credit Ratings: As Required by 
Section 939A(c) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (July 2011). Section 939A of the Dodd-Frank Act 
applies to all federal agencies.
    \12\ See Public Law 111-203 Sec.  939A(b).
---------------------------------------------------------------------------

II. Discussion

A. Background

    Prior to and after enactment of the Dodd-Frank Act, the Commission 
has taken a number of steps toward removing references to credit 
ratings from its regulations under the federal securities laws.\13\ 
These steps include a 2011 proposal to remove references to credit 
ratings of nationally recognized statistical rating organizations 
(``NRSROs'') from certain rules under the Exchange Act relating to 
broker-dealer financial responsibility (Rule 15c3-1, Rule 15c3-3, and 
Form X-17A-5, Part IIB), confirmations of securities transactions (Rule 
10b-10), and distributions of securities (Rules 101 and 102 of 
Regulation M).\14\ Today the Commission is adopting amendments to 
remove references to credit ratings in the broker-dealer financial 
responsibility and confirmations of transactions rules. In doing so, 
the Commission considered its prior actions in this area. Regarding its 
proposal to remove credit ratings from its rules under Regulation M 
applicable to distributions of securities, the Commission is currently 
reviewing comments and considering alternatives and intends to address 
this proposal separately.\15\ In taking these actions, the Commission 
has carefully considered the eleven comment letters it received in 
response to the proposing release,\16\

[[Page 1523]]

five of which discussed the proposed amendments to the broker-dealer 
financial responsibility rules,\17\ and four of which discussed the 
proposed amendments to the confirmations of transactions rule.\18\
---------------------------------------------------------------------------

    \13\ See, e.g., Nationally Recognized Statistical Rating 
Organizations, Exchange Act Release No. 34616 (Aug. 31, 1994), 59 FR 
46314 (Sep. 7, 1994) (soliciting comment on, among other things, 
whether references to NRSRO credit ratings should be eliminated from 
Commission rules); Rating Agencies and the Use of Credit Ratings 
under the Federal Securities Laws, Exchange Act Release No. 47972 
(June 4, 2003), 68 FR 35258 (June 12, 2003) (soliciting comment on 
whether to eliminate the use of NRSRO credit ratings, and, if so, 
what alternative benchmarks could be used to meet the Commission's 
regulatory objectives); References to Ratings of Nationally 
Recognized Statistical Rating Organizations, Exchange Act Release 
No. 58070 (July 1, 2008), 73 FR 40088 (July 11, 2008) (proposing 
amendments to remove references to credit ratings from Commission 
rules under the Securities Act of 1933 (``Securities Act''), 
Exchange Act, and Investment Company Act of 1940 (``Investment 
Company Act'')); References to Ratings of Nationally Recognized 
Statistical Rating Organizations, Exchange Act Release No. 60789 
(Oct. 5, 2009), 74 FR 52358 (Oct. 9, 2009) (adopting amendments to 
remove references to credit ratings in certain Commission rules); 
References to Ratings of Nationally Recognized Statistical Rating 
Organizations, Exchange Act Release No. 60790 (Oct. 5, 2009), 74 FR 
52374 (Oct. 9, 2009) (re-opening comment on proposals to remove 
references to credit ratings in certain Commission rules); Security 
Ratings, Securities Act Release No. 9186 (Feb. 9, 2011), 76 FR 8961 
(Feb. 16, 2011) (proposing amendments to remove references to credit 
ratings in certain Commission rules); References to Credit Ratings 
in Certain Investment Company Act Rules and Forms, Securities Act 
Release No. 9193 (Mar. 3, 2011), 76 FR 12896 (Mar. 9, 2011) 
(proposing amendments to remove references to credit ratings in 
certain Commission rules); Security Ratings, Securities Act Release 
No. 9245 (July 27, 2011), 76 FR 46603 (Aug. 3, 2011) (adopting 
amendments to remove references to credit ratings in certain 
Commission rules).
    \14\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, Exchange Act Release No. 64352 
(Apr. 27, 2011), 76 FR 26550 (May 6, 2011). The Commission also 
proposed amendments in 2011 to remove references to credit ratings 
in rules under the Securities Act and the Investment Company Act. 
See References to Credit Ratings in Certain Investment Company Act 
Rules and Forms, 76 FR 12896; Security Ratings, 76 FR 8961.
    \15\ Regulation M is a set of anti-manipulation rules designed 
to preserve the integrity of the securities market by prohibiting 
activities that could artificially influence the market for an 
offered security. See 17 CFR 242.100-105. The rules include an 
exception for nonconvertible debt securities, nonconvertible 
preferred securities, and asset-backed securities that are rated by 
at least one NRSRO in one of its generic rating categories that 
signifies investment grade. See 17 CFR 242.101(c)(2); 17 CFR 
242.102(d)(2).
    \16\ Comment letter of Chris Barnard (June 6, 2011) (``Barnard 
Letter''); comment letter of Creative Investment Research, Inc. 
(July 4, 2011) (``Creative Investment Letter''); comment letter of 
Rothwell Consulting LLC (July 5, 2011) (``Rothwell Consulting 
Letter''); comment letter of Davis Polk & Wardwell LLP (July 5, 
2011) (``Davis Polk Letter''); comment letter of Bond Dealers of 
America (July 5, 2011) (``Bond Dealers Letter''); comment letter of 
the Securities Industry and Financial Markets Association (July 5, 
2011) (``SIFMA Letter''); comment letter of Better Markets, Inc. 
(July 5, 2011) (``Better Markets Letter''); comment letter of 
Sullivan & Cromwell LLP (July 5, 2011) (``Sullivan & Cromwell 
Letter''); comment letter of the Securitization Group, Securities 
Industry and Financial Markets Association (Sep. 23, 2011) (``SIFMA 
Securitization Letter''); comment letter of the CFA Institute (Dec. 
20, 2011) (``CFA Institute Letter''); and comment letter of the 
Honorable Sean P. Duffy, U.S. House of Representatives (Oct. 4, 
2013) (``Duffy Letter''). These comment letters are available at 
http://www.sec.gov/comments/s7-15-11/s71511.shtml. Comments are also 
available for Web site viewing and printing in the Commission's 
Public Reference Room, 100 F Street NE., Washington, DC (File No. 
S7-15-11).
    \17\ See Barnard Letter; Better Markets Letter; Bond Dealers 
Letter; CFA Institute Letter; SIFMA Letter.
    \18\ See Better Markets Letter; CFA Institute Letter; SIFMA 
Letter; Sullivan & Cromwell Letter. In addition, one letter 
discussed the proposed amendments to Regulation M and one letter 
discussed reference removal under section 939A generally. See 
Rothwell Consulting Letter (Regulation M); Duffy Letter (section 
939A generally).
---------------------------------------------------------------------------

    A number of other federal agencies have also taken action to 
implement section 939A of the Dodd-Frank Act, including regulations 
proposed or adopted by the Commodity Futures Trading Commission,\19\ 
the Office of the Comptroller of the Currency,\20\ the National Credit 
Union Administration,\21\ the Federal Housing Finance Agency,\22\ the 
Department of Labor,\23\ and jointly by the Office of the Comptroller 
of the Currency and the Federal Reserve Board.\24\ The actions taken by 
these other regulators were considered in adopting today's amendments.
---------------------------------------------------------------------------

    \19\ See Investment of Customer Funds and Funds Held in an 
Account for Foreign Futures and Foreign Options Transactions, 76 FR 
78776 (Dec. 19, 2011) (final rule); Removing Any Reference to or 
Reliance on Credit Ratings in Commission Regulations; Proposing 
Alternatives to the Use of Credit Ratings, 76 FR 44262 (July 25, 
2011) (final rule).
    \20\ See Alternatives to the Use of External Credit Ratings in 
the Regulations of the OCC, 77 FR 35253 (June 13, 2012) (final 
rule).
    \21\ See Alternatives to the Use of Credit Ratings, 77 FR 74103 
(Dec. 13, 2012) (final rule).
    \22\ See Removal of References to Credit Ratings in Certain 
Regulations Governing the Federal Home Loan Banks, 78 FR 30784 (May 
23, 2013) (proposed rule).
    \23\ See Proposed Amendments to Class Prohibited Transaction 
Exemptions to Remove Credit Ratings Pursuant to the Dodd-Frank Wall 
Street Reform and Consumer Protection Act, 78 FR 37572 (June 21, 
2013) (proposed rule).
    \24\ See Regulatory Capital Rules: Regulatory Capital, 
Implementation of Basel III, Capital Adequacy, Transition 
Provisions, Prompt Corrective Action, Standardized Approach for 
Risk-Weighted Assets, Market Discipline and Disclosure Requirements, 
Advanced Approaches Risk-Based Capital Rule, and Market Risk Capital 
Rule, 78 FR 62018 (Oct. 11, 2013) (interim final rule with request 
for comment).
---------------------------------------------------------------------------

    The following discussion summarizes the Commission's proposals with 
respect to the broker-dealer financial responsibility and confirmations 
of transaction rules, the comments received by the Commission in 
response to each of the proposals, and the amendments the Commission is 
adopting today.\25\
---------------------------------------------------------------------------

    \25\ In a separate release, the Commission is adopting final 
amendments to remove references to credit ratings in Rule 5b-3 and 
Forms N-1A, N-2, and N-3 under the Investment Company Act.
---------------------------------------------------------------------------

B. Amendments

1. The Broker-Dealer Financial Responsibility Rules
a. The Net Capital Rule
i. Proposal
    In 1975, the Commission adopted the term nationally recognized 
statistical rating organization as part of amendments to the broker-
dealer net capital rule (``Rule 15c3-1'').\26\ The Commission's initial 
regulatory use of the term was intended to provide a method for 
determining net capital charges on different grades of debt securities 
under Rule 15c3-1.\27\ Rule 15c3-1 prescribes a net liquid assets test 
that is designed to require a broker-dealer to maintain sufficient 
liquid assets to meet all obligations to customers and counterparties 
and have adequate additional resources to wind-down its business in an 
orderly manner without the need for a formal proceeding if the firm 
fails financially.\28\ Among other things, Rule 15c3-1 requires broker-
dealers to maintain specified minimum levels of net liquid assets, or 
net capital.\29\ In particular, it requires that a broker-dealer 
perform two calculations: (1) a computation of the minimum amount of 
net capital the broker-dealer must maintain; \30\ and (2) a computation 
of the amount of net capital the broker-dealer is maintaining.\31\ The 
minimum net capital requirement is the greater of a fixed-dollar amount 
specified in the rule or an amount determined by applying one of two 
financial ratios.\32\
---------------------------------------------------------------------------

    \26\ See Adoption of Uniform Net Capital Rule and an Alternative 
Net Capital Requirement for Certain Brokers and Dealers, Exchange 
Act Release No. 11497 (June 26, 1975), 40 FR 29795 (July 16, 1975); 
17 CFR 240.15c3-1.
    \27\ See 17 CFR 240.15c3-1.
    \28\ See Net Capital Rule, Exchange Act Release No. 38248 (Feb. 
6, 1997), 62 FR 6474 (Feb. 12, 1997).
    \29\ See 17 CFR 240.15c3-1.
    \30\ See 17 CFR 240.15c3-1(a).
    \31\ See 17 CFR 240.15c3-1(c)(2). The computation of net capital 
is based on the definition of net capital in paragraph (c)(2) of 
Rule 15c3-1. Id.
    \32\ See 17 CFR 240.15c3-1(a).
---------------------------------------------------------------------------

    In computing net capital, a broker-dealer must, among other things, 
make certain adjustments to net worth, including deducting illiquid 
assets, taking other net capital charges, and adding qualifying 
subordinated loans.\33\ The amount remaining after these adjustments is 
defined as tentative net capital.\34\ The final step in computing net 
capital is to take prescribed percentage deductions (``haircuts'') from 
the mark-to-market value of proprietary positions (e.g., securities, 
money market instruments, and commodities) that are included in the 
broker-dealer's tentative net capital.\35\ The haircuts are designed to 
account for the market risk inherent in these positions and create a 
buffer of liquidity to protect against other risks associated with the 
securities business.\36\
---------------------------------------------------------------------------

    \33\ See 17 CFR 240.15c3-1(c)(2)(i) through (xiii).
    \34\ See 17 CFR 240.15c3-1(c)(15).
    \35\ See 17 CFR 240.15c3-1(c)(2)(vi).
    \36\ See, e.g., Uniform Net Capital Rule, Exchange Act Release 
No. 13635 (June 16, 1977), 42 FR 31778 (June 23, 1977) (``[Haircuts] 
are intended to enable net capital computations to reflect the 
market risk inherent in the positioning of the particular types of 
securities enumerated in [the rule.]''); Net Capital Rule, Exchange 
Act Release No. 22532 (Oct. 15, 1985), 50 FR 42961 (Oct. 23, 1985) 
(``These percentage deductions, or `haircuts', take into account 
elements of market and credit risk that the broker-dealer is exposed 
to when holding a particular position.''); Net Capital Rule, 
Exchange Act Release No. 39455 (Dec. 17, 1997), 62 FR 67996 (Dec. 
30, 1997) (``Reducing the value of securities owned by broker-
dealers for net capital purposes provides a capital cushion against 
adverse market movements and other risks faced by the firms, 
including liquidity and operational risks.'') (footnote omitted).
---------------------------------------------------------------------------

    Rule 15c3-1 prescribes differing haircut amounts for a variety of 
classes of securities.\37\ The rule also contains catchall provisions 
to account for securities that are not included in the specified 
classes of securities.\38\ Generally, the catchall provisions impose 
higher deductions (15% or 40% of the mark-to-market value of the 
positions) than the haircuts applicable to the specifically identified 
classes of securities.\39\ Further, if a security does not have a ready 
market, it is subject to a 100% deduction from net worth.\40\
---------------------------------------------------------------------------

    \37\ See 17 CFR 240.15c3-1(c)(2)(vi)(A) through (H).
    \38\ See 17 CFR 240.15c3-1(c)(2)(vi)(J) through (K).
    \39\ Compare 17 CFR 240.15c3-1(c)(2)(vi)(A) through (H), with 17 
CFR 240.15c3-1(c)(2)(vi)(J) through (K).
    \40\ See 17 CFR 240.15c3-1(c)(2)(vii). The term ready market is 
defined in Rule 15c3-1 as ``a market in which there exists 
independent bona fide offers to buy and sell so that a price 
reasonably related to the last sales price or current bona fide 
competitive bid and offer quotations can be determined for a 
particular security almost instantaneously and where payment will be 
received in settlement of a sale at such price within a relatively 
short time conforming to trade custom.'' 17 CFR 240.15c3-1(c)(11).

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

[[Page 1524]]

    Prior to today's amendments, commercial paper, nonconvertible debt, 
and preferred stock rated in higher rating categories by at least two 
NRSROs were included in the classes of securities that had lower 
haircuts than securities subject to the catchall provisions.\41\ 
Specifically, to qualify for this treatment, among other things, 
commercial paper needed to be rated in one of the three highest rating 
categories by at least two NRSROs,\42\ nonconvertible debt needed to be 
rated in one of the four highest rating categories by at least two 
NRSROs,\43\ and preferred stock needed to be rated in one of the four 
highest rating categories by at least two NRSROs.\44\ Broker-dealers 
were not required to take as large a haircut for commercial paper, 
nonconvertible debt, and preferred stock meeting these rating 
conditions because the securities were considered to be less volatile 
in price than securities that were rated in lower rating categories or 
were unrated.
---------------------------------------------------------------------------

    \41\ See 17 CFR 240.15c3-1(c)(2)(vi)(E), (F), and (H). 
Generally, the haircut requirements in Rule 15c3-1 prior to today's 
amendments were based on the practice of many NRSROs having at least 
eight categories of ratings for debt securities, with the top four 
ratings commonly referred to in the industry as investment grade.
    \42\ See 17 CFR 240.15c3-1(c)(2)(vi)(E). The amount of the 
haircut ranged from 0% to \1/2\ of 1% depending on the time to 
maturity of the commercial paper. Id. Additional conditions to 
qualify for this treatment were that the commercial paper had a 
maturity at date of issuance not exceeding nine months exclusive of 
days of grace, or any renewal thereof, the maturity of which was 
likewise limited, and a fixed rate of interest or been sold at a 
discount. Id.
    \43\ See 17 CFR 240.15c3-1(c)(2)(vi)(F). The amount of the 
haircut ranged from 2% to 9% depending on the time to maturity of 
the nonconvertible debt security. Id. Additional conditions to 
qualify for this treatment were that the nonconvertible debt 
security had a fixed rate of interest, a fixed maturity, and did not 
trade flat and was not in default as to principal or interest. Id.
    \44\ See 17 CFR 240.15c3-1(c)(2)(vi)(H). The amount of the 
haircut was 10%. Id. Additional conditions to qualify for this 
treatment were that the preferred stock ranked prior to all other 
classes of stock of the same issuer and was not in arrears as to 
dividends. Id.
---------------------------------------------------------------------------

    The Commission proposed to remove references to credit ratings in 
the provisions of Rule 15c3-1 establishing lower haircuts for higher 
rated commercial paper, nonconvertible debt, and preferred stock and to 
substitute an alternative standard of creditworthiness as a condition 
for qualifying for the lower haircut treatment.\45\ The proposed 
amendments retained the non-credit rating conditions for these classes 
of securities to apply lower haircuts. Under the proposal, a broker-
dealer would have been permitted to apply the lower haircuts for 
commercial paper (i.e., between zero and \1/2\ of 1%), nonconvertible 
debt (i.e., between 2% and 9%), and preferred stock (i.e., 10%) if the 
position had only a minimal amount of credit risk as determined by the 
broker-dealer pursuant to written policies and procedures the broker-
dealer established, maintained, and enforced to assess 
creditworthiness.\46\ Consequently, to use these lower haircuts for 
commercial paper, nonconvertible debt, and preferred stock, a broker-
dealer would have been required to establish, maintain, and enforce 
written policies and procedures designed to assess the credit risks 
applicable to the position and, based on this process, would have had 
to determine that the investment had only a minimal amount of credit 
risk.\47\ A broker-dealer would have been required to take a larger 
deduction, normally the 15% ``catchall'' haircut, on its proprietary 
positions in commercial paper, nonconvertible debt, and preferred stock 
if the firm did not have procedures to assess the creditworthiness of 
the class of security or money market instrument or determined its 
position was not of minimal credit risk.\48\ Moreover, if an issuance 
of commercial paper, nonconvertible debt, or preferred stock did not 
trade in a ready market, the broker-dealer would continue to apply a 
100% haircut--meaning that the broker-dealer could not include the 
value of the security in its net capital.\49\
---------------------------------------------------------------------------

    \45\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26552-26554.
    \46\ Id. at 26552.
    \47\ Id.
    \48\ Id.
    \49\ Id.
---------------------------------------------------------------------------

    In the proposing release, the Commission identified the following 
factors a broker-dealer could consider, to the extent appropriate, when 
assessing credit risk for purposes of determining whether an issuance 
of commercial paper, nonconvertible debt, or preferred stock was of 
minimal credit risk: (1) Credit spreads; (2) securities-related 
research; (3) internal or external credit risk assessments; (4) default 
statistics; (5) inclusion in an index; (6) priorities and enhancements; 
(7) price, yield and/or volume; and (8) asset class-specific 
factors.\50\ The Commission stated that the list of factors was not 
intended to be exhaustive nor mutually exclusive and that the range and 
type of specific factors considered would vary depending on the 
particular securities that were reviewed.\51\
---------------------------------------------------------------------------

    \50\ Id. at 26552-26553.
    \51\ Removal of Certain References to Credit Ratings under the 
Securities Exchange Act of 1934, 76 FR at 26553.
---------------------------------------------------------------------------

    In addition, each broker-dealer would have been required to 
preserve for a period of not less than three years (the first two years 
in an easily accessible place) the written policies and procedures that 
the broker-dealer established, maintained, and enforced for assessing 
credit risk for commercial paper, nonconvertible debt, and preferred 
stock.\52\ Broker-dealers would have been subject to this requirement 
in the broker-dealer record retention rule (Rule 17a-4), which the 
Commission proposed to amend in conjunction with the rulemaking.\53\
---------------------------------------------------------------------------

    \52\ Id. at 26553.
    \53\ Id.; see also 17 CFR 240.17a-4.
---------------------------------------------------------------------------

ii. Comments
    Five commenters responded to the Commission's request for comment 
on the amendments to Rule 15c3-1.\54\ One additional commenter--writing 
about section 939A generally--supported the goals of section 939A to 
provide incentive for more information and diligence for investors and 
to increase competition in the credit rating agency industry but also 
cautioned that implementation of section 939A could be confusing to 
smaller banks and investors.\55\ Two commenters raised concerns 
generally about replacing credit ratings with a more subjective 
standard of creditworthiness.\56\ Three other commenters suggested 
modifications to the Commission's list of factors that a broker-dealer 
could consider when assessing creditworthiness under the proposed 
minimal amount of credit risk standard.\57\ Commenters also generally 
supported the Commission's proposal that broker-dealers document and 
retain their policies and procedures for assessing a position's 
creditworthiness to determine whether it is of minimal credit risk.\58\
---------------------------------------------------------------------------

    \54\ See Barnard Letter; Better Markets Letter; Bond Dealers 
Letter; CFA Institute Letter; SIFMA Letter; see also Removal of 
Certain References to Credit Ratings under the Securities Exchange 
Act of 1934, 76 FR at 26554.
    \55\ See Duffy Letter, at 1.
    \56\ See Bond Dealers Letter, at 2-3; SIFMA Letter, at 11.
    \57\ See Barnard Letter, at 1-2; Better Markets Letter, at 6-7; 
CFA Institute Letter, at 4.
    \58\ See Barnard Letter, at 2; Better Markets Letter, at 6-8.
---------------------------------------------------------------------------

    Among commenters raising concerns about the Commission replacing 
credit ratings with a more subjective approach for determining 
haircuts, one commenter stated that the proposal contains an inherent 
conflict of interest, is complicated, and would disproportionately 
burden smaller

[[Page 1525]]

firms.\59\ This commenter also stated that the Commission's proposal 
could result in inconsistent net capital treatment across broker-
dealers absent a mandatory list of factors or an objective standard 
that a broker-dealer could apply when determining net capital 
haircuts--``[f]or example, one firm may determine a security qualifies 
for a 9% haircut, while another might determine the haircut for the 
same security is 15%.'' \60\ This commenter also has concerns that a 
subjective approach would reduce liquidity, increase volatility, and 
could increase costs for issuers of securities.\61\
---------------------------------------------------------------------------

    \59\ Bond Dealers Letter, at 2. This commenter argued that the 
proposed amendments disadvantage smaller broker-dealers that lack 
the necessary internal resources to determine creditworthiness and, 
as a result, will be unable to apply reduced haircuts.
    \60\ Id.
    \61\ Id.
---------------------------------------------------------------------------

    The second commenter expressed concern that Commission and self-
regulatory organization (``SRO'') examiners would ``second guess'' a 
broker-dealer's policies and procedures and analysis under the new 
standard and that examiners should, instead, focus on the 
reasonableness of the policies and procedures.\62\ This commenter also 
requested that examiners avoid duplicating the work of other regulators 
who have already considered the adequacy of a broker-dealer's policies 
and procedures for assessing the creditworthiness of securities 
positions.\63\
---------------------------------------------------------------------------

    \62\ SIFMA Letter, at 19.
    \63\ Id. at 20-21.
---------------------------------------------------------------------------

    Regarding the Commission's proposed list of factors that broker-
dealers could consider when assessing creditworthiness under the 
minimal amount of credit risk standard, one commenter recommended that 
the Commission require broker-dealers to consider certain mandatory 
factors and suggested they be codified in the final rule.\64\ In 
contrast, another commenter did not believe that factors should be 
codified in the rule.\65\ Another stated that a broker-dealer's 
assessment of a security's creditworthiness should be based on ``hard'' 
factors, such as credit spreads and default statistics, rather than 
``soft'' factors, such as securities-related research.\66\
---------------------------------------------------------------------------

    \64\ Better Markets Letter, at 5-6.
    \65\ SIFMA Letter, at 20.
    \66\ Barnard Letter, at 2.
---------------------------------------------------------------------------

    One commenter requested that ``term to maturity'' and 
``concentration of credit risk'' be included as factors that a broker-
dealer could consider in assessing whether a position is of minimal 
credit risk.\67\ Another suggested that a broker-dealer's policies and 
procedures for assessing creditworthiness under the proposed standard 
be permitted to take into account the ``size of the [broker-dealer's] 
position and the purpose for which the position [was] acquired or held 
by the broker-dealer.'' \68\ This commenter also stated that a broker-
dealer's obligation to monitor credit determinations should be based on 
factors such as the volatility of business conditions within the 
relevant industry and the frequency with which the securities 
trade.\69\
---------------------------------------------------------------------------

    \67\ CFA Institute Letter, at 4.
    \68\ SIFMA Letter, at 10-11.
    \69\ Id. at 21.
---------------------------------------------------------------------------

    One commenter suggested that a broker-dealer be allowed to rely on 
a parent's or an affiliate's credit determination.\70\ Another stated 
that, to promote regulatory and market transparency, a broker-dealer 
that develops internal credit ratings should be required to compare its 
ratings to an external benchmark, such as NRSRO ratings, market data, 
or other credit information sources.\71\ Another stated, however, that 
a broker-dealer should be prohibited from considering internally or 
externally developed credit ratings as part of its credit risk 
assessment process and that permitting such use would conflict with 
section 939A of the Dodd-Frank Act.\72\
---------------------------------------------------------------------------

    \70\ Id.
    \71\ CFA Institute Letter, at 4.
    \72\ Better Markets Letter, at 7.
---------------------------------------------------------------------------

    Commenters generally supported the Commission's proposal that 
broker-dealers document their policies and procedures for determining 
creditworthiness under the minimal amount of credit risk standard.\73\ 
One commenter suggested that such documentation be maintained 
indefinitely.\74\ Another stated that the Commission should require a 
broker-dealer to maintain a record for each assessment of 
creditworthiness under the standard.\75\ Another stated that the 
Commission should only require the retention of records for 
determinations of credit risk when a broker-dealer is engaged in 
``sophisticated credit analysis.'' \76\ This commenter stated that a 
broker-dealer should not be required to document its credit analysis 
with respect to a position if the analysis was based on a small number 
of objective factors and could be easily reconstructed by the broker-
dealer.\77\
---------------------------------------------------------------------------

    \73\ One commenter stated that broker-dealers would otherwise 
make self-interested determinations at the expense of customers. 
Better Markets Letter, at 6-8. Another commenter stated that these 
policies and procedures should be preserved for three years and 
updated to reflect significant changes. Barnard Letter, at 2. This 
commenter further argued that broker-dealers that create and enforce 
procedures to determine creditworthiness be granted the lesser 
haircut. Id.
    \74\ Barnard Letter, at 2.
    \75\ Better Markets Letter, at 7-8.
    \76\ SIFMA Letter, at 22.
    \77\ Id.
---------------------------------------------------------------------------

iii. Final Rule
    The Commission is amending Rule 15c3-1 to remove references to 
NRSRO credit ratings in the provisions establishing lower haircuts for 
commercial paper, nonconvertible debt, and preferred stock. The 
Commission is adopting amendments to these provisions with 
modifications from the proposal, discussed below, to address issues 
raised by commenters.
    Under the final amendments and consistent with the proposal, when a 
broker-dealer applies haircuts for commercial paper, nonconvertible 
debt, and preferred stock that have a ready market for purposes of its 
net capital computation, it will have the option of: (1) Using the 
firm's own written policies and procedures to determine whether the 
security has only a minimal amount credit risk and, if so, applying the 
appropriate lower haircut if it meets the other conditions prescribed 
in Rule 15c3-1; or (2) applying the greater deduction applicable to the 
position, such as the 15% haircut under the catchall provision in 
paragraph (c)(2)(vi)(J) of Rule 15c3-1.\78\ Commercial paper, 
nonconvertible debt, and preferred stock without a ready market would 
continue to be subject to a 100% haircut.\79\
---------------------------------------------------------------------------

    \78\ See paragraphs (c)(2)(vi)(E), (c)(2)(vi)(F), (c)(2)(vi)(H), 
and (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \79\ See 17 CFR 240.15c3-1(c)(2)(vii).
---------------------------------------------------------------------------

    Unlike the objective approach of using NRSRO credit ratings, the 
minimal amount of credit risk standard is a subjective approach because 
it allows broker-dealers in the first instance to determine through 
their credit assessments whether a lower haircut is applicable to a 
given position. Further, whereas the rule prior to today's amendments 
required that commercial paper, nonconvertible debt, and preferred 
stock be given high credit ratings by an NRSRO before a reduced haircut 
is permitted, the minimal amount of credit risk standard provides 
flexibility to broker-dealers by allowing them to rely on a variety of 
factors, both objective and subjective, in assessing the credit and 
liquidity risks associated with their proprietary commercial paper, 
nonconvertible debt, and preferred stock positions. However, the 
Commission does not intend for the new standard to result in a more 
liberal requirement that broadens the scope of

[[Page 1526]]

the rule by allowing more positions to qualify for the lower 
haircuts.\80\ The Commission notes that credit ratings and market data 
(such as credit spreads and yields) can serve as useful benchmarks for 
evaluating whether a broker-dealer's policies and procedures, as 
applied to the minimal amount of credit risk standard, are increasing 
the types of commercial paper, nonconvertible debt, and preferred stock 
positions to which it applies the lower haircuts as compared to the 
eliminated NRSRO credit rating standard.
---------------------------------------------------------------------------

    \80\ As noted above, to qualify for the lower haircuts under the 
NRSRO credit rating standard being replaced today, commercial paper 
needed to be rated in one of the three highest rating categories by 
at least two NRSROs, nonconvertible debt needed to be rated in one 
of the four highest rating categories by at least two NRSROs, and 
preferred stock needed to be rated in one of the four highest rating 
categories by at least two NRSROs. For an example of one NRSRO's 
definitions of its four highest credit rating categories, see 
Standard & Poor's Ratings Definitions for long-term issuances 
available at http://img.en25.com/Web/StandardandPoors/Ratings_Definitions.pdf. Information about the credit rating categories of 
all the NRSROs can be obtained through the Forms NRSRO they file 
with the Commission and make publicly available. Links to these 
forms are available at http://www.sec.gov/about/offices/ocr.shtml.
---------------------------------------------------------------------------

    The Commission is amending paragraph (c)(2)(vi)(E) of Rule 15c3-1 
(relating to commercial paper haircuts), paragraphs (c)(2)(vi)(F)(1) 
and (c)(2)(vi)(F)(2) of Rule 15c3-1 (relating to nonconvertible debt 
haircuts), and paragraph (c)(2)(vi)(H) of Rule 15c3-1 (relating to 
preferred stock haircuts) by replacing references to NRSRO credit 
ratings with the alternative minimal amount of credit risk 
standard.\81\ Consistent with the proposal, the final rule provides 
that a broker-dealer may apply the lower haircuts applicable to 
commercial paper (i.e., between 0% and \1/2\ of 1%), nonconvertible 
debt (i.e., between 2% and 9%), and preferred stock (i.e., 10%) if the 
security has only a minimal amount of credit risk.\82\
---------------------------------------------------------------------------

    \81\ See paragraphs (c)(2)(vi)(E), (c)(2)(vi)(F), and 
(c)(2)(vi)(H) of Rule 15c3-1, as amended.
    \82\ Id.
---------------------------------------------------------------------------

    The Commission has made several modifications to its proposed rule 
text. First, the Commission has re-structured the rule by adding new 
paragraph (c)(2)(vi)(I) to specify requirements for the policies and 
procedures a broker-dealer must establish, document, maintain, and 
enforce for purposes of assessing whether a position has only a minimal 
amount credit risk under paragraphs (c)(2)(vi)(E), (c)(2)(vi)(F)(1), 
(c)(2)(vi)(F)(2), and (c)(2)(vi)(H).\83\ Under the proposal, each of 
the paragraphs (i.e., paragraphs (c)(2)(vi)(E), (c)(2)(vi)(F)(1), 
(c)(2)(vi)(F)(2), and (c)(2)(vi)(H)) separately provided that a broker-
dealer must determine whether a position has only a minimal amount of 
credit risk pursuant to ``written policies and procedures the broker-
dealer establishes, maintains, and enforces to assess 
creditworthiness.'' \84\ Consistent with the proposal, each paragraph 
still requires that the security or money market instrument have only a 
minimal amount of credit risk before the lower haircut may be applied; 
however the reference to policies and procedures in each paragraph has 
been removed. Instead, new paragraph (c)(2)(vi)(I) of Rule 15c3-1 
requires the broker-dealer to establish, document, maintain, and 
enforce policies and procedures to assess and monitor the 
creditworthiness of each security or money market instrument that are 
reasonably designed for the purpose of determining whether the position 
has only a minimal amount of credit risk.\85\ Securities or money 
market instruments assessed to have only a minimal amount of credit 
risk also must meet the other non-credit rating conditions prescribed 
in Rule 15c3-1 in order to apply the lower haircuts under paragraphs 
(c)(2)(vi)(E), (c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2), or 
(c)(2)(vi)(H).\86\
---------------------------------------------------------------------------

    \83\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \84\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26576.
    \85\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \86\ Paragraph (c)(2)(vi)(E) of Rule 15c3-1, as amended, retains 
the non-credit rating conditions that the commercial paper must have 
a maturity at date of issuance not exceeding nine months exclusive 
of days of grace, or any renewal thereof, the maturity of which is 
likewise limited, and a fixed rate of interest, or be sold at a 
discount. See 17 CFR 240.15c3-1(c)(2)(vi)(E). Paragraph 
(c)(2)(vi)(F) of Rule 15c3-1, as amended, retains the non-credit 
rating conditions that the nonconvertible debt security must have a 
fixed rate of interest, a fixed maturity, and not be traded flat or 
in default as to principal or interest. See 17 CFR 240.15c3-
1(c)(2)(vi)(F). Paragraph (c)(2)(vi)(H) of Rule 15c3-1, as amended, 
retains the non-credit rating conditions that the preferred stock 
must rank prior to all other classes of stock of the same issuer and 
not be in arrears as to dividends. See 17 CFR 240.15c3-
1(c)(2)(vi)(H). See also 17 CFR 240.15c3-1(c)(2)(vii) (establishing 
a 100% deduction for securities for which there is no ready market).
---------------------------------------------------------------------------

    Under the final rule, new paragraph (c)(2)(vi)(I) of Rule 15c3-1 
provides that in order to apply a deduction under paragraphs 
(c)(2)(vi)(E), (c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2), or (c)(2)(vi)(H), 
the broker-dealer must assess the creditworthiness of the security or 
money market instrument pursuant to policies and procedures for 
assessing and monitoring creditworthiness that the broker-dealer 
establishes, documents, maintains, and enforces.\87\ The Commission 
added the word ``monitoring'' to clarify that, after the initial 
determination by a broker-dealer, a position must continue to have only 
a minimal amount of credit risk in order to remain qualified for the 
lower haircut and that monitoring must be done in accordance with the 
firm's policies and procedures. Under Rule 15c3-1, a broker-dealer must 
at ``all times'' have and maintain an amount of net capital that is at 
least equal to the minimum amount of net capital required by the 
rule.\88\ Consequently, the broker-dealer must monitor its securities 
and money market instrument positions in order to ensure that it is 
applying the appropriate haircuts to those positions. For example, 
under the NRSRO credit rating standard being eliminated today, a 
broker-dealer needed to monitor whether the positions it held continued 
to have the required credit ratings to apply the lower haircuts because 
credit rating agencies may adjust (e.g., downgrade) their credit 
ratings. The same is true under the new minimal credit risk standard 
because the creditworthiness of a security or money market instrument 
can change over time and, consequently, a position that has only a 
minimal amount of credit risk at one point in time may not retain that 
status.
---------------------------------------------------------------------------

    \87\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \88\ See 17 CFR 240.15c3-1(a).
---------------------------------------------------------------------------

    In the proposing release, the Commission requested comment on how 
often a broker-dealer should be required to update its assessments.\89\ 
The Commission received one comment in response to this request.\90\ 
The commenter stated that the frequency of review ``should be a 
function of a number of factors, including, e.g., the size and purpose 
of the broker-dealer's position in the fixed-income security, the 
volatility of business conditions within the relevant industry, the 
amount of fixed-income securities issued, and the frequency with which 
the securities trade.'' \91\ The Commission generally agrees with the 
commenter that the frequency of review should depend on a variety 
factors such as those identified by the commenter. However, as 
discussed above, the requirement for a broker-dealer to maintain its 
required minimum amount of net capital is moment-to-moment. 
Consequently, a broker-dealer's policies and procedures for assessing 
whether an issuance of commercial paper, nonconvertible debt, or 
preferred stock

[[Page 1527]]

has only a minimal amount of credit risk must include a process that is 
designed to ensure that its credit determinations are current, and 
address the frequency with which the broker-dealer reviews and 
reassesses its credit determinations. For example, a broker-dealer's 
policies and procedures could require more frequent reassessments in 
the case of securities or money market instruments that are close to 
the line between having only a minimal amount of credit risk and having 
a greater level of credit risk or that are subject to macroeconomic 
conditions or issuer specific events that could have an impact on 
credit risk. In addition, a higher haircut must be taken when a 
security or money market instrument no longer has only a minimal amount 
of credit risk. The Commission expects that a broker-dealer's process 
for monitoring its credit determinations will be customized to the size 
and activities of the firm to ensure that it maintains the required 
amount of net capital at ``all times.'' \92\
---------------------------------------------------------------------------

    \89\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26554.
    \90\ See SIFMA Letter.
    \91\ Id. at 21.
    \92\ See 17 CFR 240.15c3-1(a).
---------------------------------------------------------------------------

    The Commission also modified the proposed rule text relating to 
policies and procedures by including in new paragraph (c)(2)(vi)(I) of 
Rule 15c3-1 the qualifier that the policies and procedures must be 
``reasonably designed'' for the purpose of assessing 
creditworthiness.\93\ As noted above, one commenter raised a concern 
that Commission and SRO examiners would ``second guess'' broker-dealer 
credit assessments and stated that the regulatory focus on compliance 
with the rule should be on the ``reasonableness'' of a firm's policies 
and procedures for assessing creditworthiness.\94\ The Commission 
agrees that the starting point for reviewing whether a firm is in 
compliance with the amendments should be to evaluate the reasonableness 
of the firm's policies and procedures in light of the firm's 
circumstances (e.g., the size of the broker-dealer and the types and 
sizes of the positions typically held by the broker-dealer). In this 
regard, the policies and procedures must specify with sufficient detail 
the steps the broker-dealer will take in performing a credit assessment 
so that Commission and SRO examiners can evaluate them.
---------------------------------------------------------------------------

    \93\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \94\ SIFMA Letter, at 19.
---------------------------------------------------------------------------

    However, the Commission also modified the final rule to add new 
text that provides that policies and procedures that are reasonably 
designed ``should result in assessments of creditworthiness that 
typically are consistent with market data.'' \95\ In particular, this 
standard for evaluating the reasonableness of a broker-dealer's 
policies and procedures will require examiners to compare market data 
(e.g., external factors such as credit spreads or yields) with the 
broker-dealer's determinations that a security or money market 
instrument has only a minimal amount of credit risk. This provision is 
designed to address concerns raised by commenters that the proposed 
minimal amount of credit risk standard was too subjective.\96\ 
Commenters raised concerns about requiring the use of a subjective 
standard because, among other things, it presents an inherent conflict 
of interest, is complicated, could reduce liquidity, and could result 
in uncertainty on the part of market participants.\97\ Requiring a 
broker-dealer's policies and procedures to produce credit risk 
determinations that typically are consistent with market data should 
mitigate concerns about potential consequences of the subjectivity 
inherent in the final rule. Furthermore, as explained throughout this 
release, a broker-dealer can make its credit risk determination 
pursuant to policies and procedures that specify the use of a small 
number of objective factors and, if a broker-dealer avails itself of 
this option, it should help the broker-dealer create a less-complicated 
methodology that aligns with market data, therefore easing the concerns 
of commenters.
---------------------------------------------------------------------------

    \95\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \96\ Bond Dealers Letter, at 2-3; SIFMA Letter, at 3.
    \97\ Bond Dealers Letter, at 2; SIFMA Letter, at 3.
---------------------------------------------------------------------------

    Notwithstanding the reasonableness of a broker-dealer's policies 
and procedures, examiners may still question a broker-dealer's credit 
risk determination, and are particularly likely to question a 
determination related to large concentrated positions or that is not 
consistent with market data. In addition, if a broker-dealer 
incorrectly determines pursuant to paragraph (c)(2)(vi)(I) of Rule 
15c3-1 that a security has only a minimal amount of credit risk, the 
broker-dealer could be in violation of Rule 15c3-1 to the extent the 
appropriate larger haircut would put the broker-dealer below the 
required minimum amount of net capital.\98\ Thus, a broker-dealer would 
need to be able to support each credit determination it makes in the 
context of a Commission or SRO examination. If the broker-dealer's 
determination that a position has only a minimal amount of credit risk 
is not consistent with market data, that result would not necessarily 
be dispositive that the position is not entitled to the lower haircut. 
However, the broker-dealer would have a high burden to demonstrate to 
examiners that the position has only a minimal amount of credit risk.
---------------------------------------------------------------------------

    \98\ Calculating a haircut incorrectly also could cause the 
broker-dealer to file incorrect reports with the Commission under 
Rule 17a-5. See 17 CFR 240.17a-5 (requiring broker-dealers to 
periodically file financial reports that, among other things, 
contain computations of net capital).
---------------------------------------------------------------------------

    When assessing whether a security or money market instrument has 
only a minimal amount of credit risk for purposes of Rule 15c3-1, a 
broker-dealer could consider pursuant to the policies and procedures it 
establishes, documents, maintains, and enforces the following factors, 
to the extent appropriate:
     Credit spreads (i.e., whether it is possible to 
demonstrate that a position in commercial paper, nonconvertible debt, 
and preferred stock has only a minimal amount of credit risk based on 
the spread between the security's yield and the yield on Treasury or 
other securities, or based on the spreads of credit default swaps that 
reference the security or money market instrument);
     Securities-related research (i.e., whether providers of 
research about securities or money market instruments believe the 
issuer of the security or money market instrument will be able to meet 
its financial commitments, generally, or specifically, with respect to 
securities or money market instruments held by the broker-dealer);
     Internal or external credit risk assessments (i.e., 
whether credit assessments developed internally by the broker-dealer or 
externally by a credit rating agency, irrespective of its status as an 
NRSRO, express a view as to the credit risk associated with a 
particular security or money market instrument of the issuer thereof);
     Default statistics (i.e., whether providers of credit 
information relating to securities or money market instruments express 
a view that specific securities or money market instruments (or their 
issuers) have a probability of default consistent with other securities 
or money market instruments that have only a minimal amount of credit 
risk);
     Inclusion in an index (i.e., whether a security, money 
market instrument, or the issuer of a security or money market 
instrument, is included as a component of a recognized index of 
instruments that have only a minimal amount of credit risk);
     Enhancements and priorities (i.e., the extent to which a 
security or money market instrument is covered by credit enhancements, 
such as overcollateralization and reserve accounts, or has priority 
under

[[Page 1528]]

applicable bankruptcy or creditors' rights provisions);
     Price, yield and/or volume (i.e., whether the price and 
yield of a security or money market instrument or a credit default swap 
that references the security or money market instrument are consistent 
with other securities or money market instruments that the broker-
dealer has determined have only a minimal amount of credit risk and 
whether the price resulted from active trading); and
     Asset class-specific factors (e.g., in the case of 
structured finance products, the quality of the underlying assets).
    The Commission does not intend this list of factors to be 
exhaustive or mutually exclusive. For example, other factors may be 
appropriate for assessing creditworthiness and, in particular, whether 
a position has only a minimal amount of credit risk.
    As noted above, several commenters identified additional factors 
that they believe would be appropriate for purposes of assessing 
whether a security or money market instrument has only a minimal amount 
of credit risk and one commenter suggested making certain factors 
mandatory.\99\ Some of these factors, such as the term to maturity of 
the security or money market instrument, are already factored into Rule 
15c3-1 and therefore do not need to be specifically added to the 
list.\100\ The Commission does not believe other factors should be 
added because the list is not meant to be exhaustive and broker-dealers 
should tailor their policies and procedures for assessing credit risk 
to their particular circumstances and specify in their policies and 
procedures those factors they deem appropriate, which may include 
factors that are not on the list above.\101\ In addition, the 
Commission recognizes that a broker-dealer's policies and procedures 
may specify the use of different factors, different sets of factors, or 
different combinations of factors depending on the characteristics of 
the security or money market instrument being assessed, the amount of 
time the broker-dealer intends to hold the position, and the size of 
the position, among other things. Further, the Commission does not 
expect that in order for a broker-dealer's policies and procedures to 
be ``reasonably designed'' that they must specify the use of every 
factor, or any particular factor, on the list. Certain factors, such as 
credit spreads, may not be applicable for bonds that are thinly traded. 
Thus, mandating that factor, or any other factor, would not necessarily 
help a broker-dealer make a creditworthiness determination. Instead, 
each broker-dealer should analyze its unique situation when designing 
its policies and procedures, including, for example, its size, the 
amount of proprietary trading by the broker-dealer in commercial paper, 
nonconvertible debt, and preferred stock, and the size and 
characteristics of the positions the firm typically holds, among other 
things.
---------------------------------------------------------------------------

    \99\ Better Markets Letter, at 6 (suggesting that the list ``be 
more comprehensive'' and include factors such as the nature of the 
issuer, the terms of the security, and the financial and regulatory 
context in which the issuer is operating); Id. at 3 (``the use of 
credit spreads and/or inclusion of an index should be the objective 
standard used to determine creditworthiness of these securities''); 
CFA Institute Letter, at 4 (suggesting the addition of ``term to 
maturity'' and ``concentration of credit risk'' as factors on the 
list).
    \100\ See, e.g., 17 CFR 15c3-1(c)(2)(vi)(F)(1) (nonconvertible 
debt securities must have a ``fixed maturity date,'' among other 
factors, in order to qualify for a reduced haircut).
    \101\ One commenter agreed with the Commission. SIFMA Letter, at 
20.
---------------------------------------------------------------------------

    Under the amendments, a broker-dealer must apply a higher 
deduction, such as the 15% ``catchall'' haircut, on a proprietary 
position in commercial paper, nonconvertible debt, and preferred stock 
if the firm determines the security has more than a minimal amount of 
credit risk or the firm opts not to have policies and procedures to 
assess the creditworthiness of the class of security or money market 
instrument.\102\ Moreover, if the commercial paper, nonconvertible 
debt, or preferred stock held by the broker-dealer does not trade in a 
ready market, the broker-dealer must apply a 100% haircut irrespective 
of the firm's credit risk determination.\103\
---------------------------------------------------------------------------

    \102\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended; 17 
CFR 240.15c3-1(c)(2)(vi)(J). If a broker-dealer chooses to apply the 
net capital deduction under paragraph (c)(2)(vi)(J) of Rule 15c3-1 
instead of making an assessment of the creditworthiness of each 
security, the broker-dealer will not be required to have policies 
and procedures to assess a security's creditworthiness for purposes 
of applying the haircuts prescribed in paragraphs (c)(2)(vi)(E), 
(c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2), or (c)(2)(vi)(H) of Rule 15c3-1.
    \103\ See 17 CFR 240.15c3-1(c)(2)(vii). As noted above, the term 
ready market is defined in Rule 15c3-1 as ``a market in which there 
exists independent bona fide offers to buy and sell so that a price 
reasonably related to the last sales price or current bona fide 
competitive bid and offer quotations can be determined for a 
particular security almost instantaneously and where payment will be 
received in settlement of a sale at such price within a relatively 
short time conforming to trade custom.'' 17 CFR 240.15c3-1(c)(11).
---------------------------------------------------------------------------

    Under today's amendments, and consistent with the proposed 
amendments, a broker-dealer must preserve for a period of not less than 
three years, the first two years in an easily accessible place, the 
policies and procedures that the broker-dealer establishes, documents, 
maintains, and enforces for assessing and monitoring the credit risk of 
commercial paper, nonconvertible debt, and preferred stock. This 
requirement is codified in new paragraph (b)(13) of Rule 17a-4.\104\
---------------------------------------------------------------------------

    \104\ See paragraph (b)(13) of Rule 17a-4, as amended.
---------------------------------------------------------------------------

    The amendments do not require a broker-dealer to maintain a record 
of each of its credit risk determinations for purposes of Rule 15c3-
1.\105\ However, a broker-dealer would need to be able to support each 
of its credit risk determinations both for internal risk management 
purposes and in the context of a Commission or SRO examination. A 
broker-dealer should maintain documentation of its credit risk 
determinations for this purpose. Alternatively, a firm that maintains 
or can access the data, information, and inputs used to make a credit 
risk determination could be in a position to replicate the original 
credit risk determination using the same process, information, and 
inputs employed to make the original determination.\106\ For example, 
if a broker-dealer uses market data to assess creditworthiness, it 
should be able to access information showing the data as of the date 
the credit risk determination was made.\107\ A broker-dealer that uses 
a model with multiple inputs should be able to replicate the model 
output upon request or maintain a record of the model output as of the 
date of the original credit risk determination.
---------------------------------------------------------------------------

    \105\ Paragraph (b)(5) of Rule 17a-4 provides, in pertinent 
part, that a broker-dealer shall preserve for a period of not less 
than three years (the first two years in an easily accessible place) 
all trial balances and computations of aggregate indebtedness and 
net capital (and working papers in connection therewith). See 17 CFR 
240.17a-4(b)(5). Working papers relating to credit risk 
determinations made for the purposes of computing net capital under 
Rule 15c3-1 will need to be preserved under this provision of Rule 
17a-4. Id.
    \106\ See SIFMA Letter, at 22.
    \107\ Although not required by today's amendments, a broker-
dealer could choose to keep a record of the market data it used to 
make the creditworthiness determination.
---------------------------------------------------------------------------

    The Commission recognizes that requiring a broker-dealer to make 
and maintain a record of each credit risk determination, as suggested 
by one commenter,\108\ may help facilitate examinations of broker-
dealers, but the Commission believes at this time that requiring 
broker-dealers to maintain a record of every credit risk determination 
could be burdensome in light of the benefits expected to be obtained. 
For example, a broker-dealer may make multiple determinations while 
assessing and monitoring the creditworthiness of a particular security. 
If the broker-dealer reaches the same result time after time

[[Page 1529]]

showing that the security in question has only a minimal amount of 
credit risk, the benefits of keeping every determination for three 
years, when the broker-dealer has the ability to replicate the relevant 
determination for an examiner, could create costs that provide little 
benefits, given the examiner will have access to the replicated credit 
risk determinations. Furthermore, if market data and other external 
factors (e.g., external credit assessments and analysis), strongly 
support the broker-dealer's assessment that a security has only a 
minimal amount of credit risk, retaining a record of the credit risk 
determination may not provide any incremental benefit to examiners. A 
broker-dealer that can replicate through application of its policies 
and procedures its original analysis to explain the basis of a credit 
risk determination should be in a position to demonstrate to examiners 
whether it is following its policies and procedures, and whether those 
policies and procedures are reasonably designed and effective in 
producing credit assessments that typically are consistent with market 
data.
---------------------------------------------------------------------------

    \108\ See Better Markets Letter, at 7-8.
---------------------------------------------------------------------------

    The Commission is cognizant of the potential conflict of interest 
inherent in a requirement that relies to some extent on the subjective 
judgment of the broker-dealer to determine whether a lower haircut 
should apply to a commercial paper, nonconvertible debt, or preferred 
stock position, as noted by some commenters.\109\ For example, a 
broker-dealer may want to hold securities with higher yields to earn 
more interest but at the same time apply lower haircuts to the 
positions to increase its net capital. This could bias the broker-
dealer's credit assessment towards finding the security has only a 
minimal amount of credit risk. As an initial matter, if a broker-dealer 
incorrectly determines a position has only a minimal amount of credit 
risk and applies a lower haircut, it could lead to the firm failing to 
maintain the minimum amount of required net capital in violation of the 
rule. As discussed above, the final rule provides that policies and 
procedures that are reasonably designed should result in assessments of 
creditworthiness that typically are consistent with market data.\110\ 
This provides objective benchmarks (i.e., market data) to use to 
evaluate the broker-dealer's policies and procedures. If a broker-
dealer has policies and procedures in place that are reasonably 
designed under the rule, and those policies and procedures are 
followed, the potential for bias to be a part of the assessment process 
should be mitigated. The Commission also expects that this potential 
conflict of interest will be mitigated by the Commission and SRO 
examination process, during which Commission and SRO examiners will 
review the reasonableness of broker-dealers' policies and procedures, 
the assessments that result from those policies and procedures, and the 
firms' adherence to the policies and procedures.\111\
---------------------------------------------------------------------------

    \109\ Better Markets Letter, at 5-6; Bond Dealers Letter, at 2; 
CFA Institute Letter, at 4.
    \110\ See paragraph (c)(2)(vi)(I) of Rule 15c3-1, as amended.
    \111\ As noted above, broker-dealers that do not keep detailed 
records of their credit risk determinations can replicate those 
determinations for Commission and SRO examiners to demonstrate that 
they followed their policies and procedures for assessing and 
monitoring creditworthiness.
---------------------------------------------------------------------------

    The Commission also is aware of the likelihood that broker-dealers 
may reach different conclusions when assessing whether a particular 
position has only a minimal amount of credit risk,\112\ or may reach 
conclusions that are contrary to market data. The Commission expects 
that Commission and SRO staff will examine for these types of 
differences and raise questions when a broker-dealer consistently 
determines that positions have only a minimal amount of credit risk 
notwithstanding the fact that external benchmarks (e.g., market data) 
in the factors listed above indicate otherwise. A determination that a 
position has only a minimal amount of credit risk that is contrary to 
some market data points and factors would not necessarily mean that the 
broker-dealer has failed to comply with the rule, but the broker-dealer 
would have a higher hurdle to overcome to demonstrate that its credit 
risk determination is correct. The Commission also notes that if a 
broker-dealer determines that a security or money market instrument has 
only a minimal amount of credit risk when the position actually does 
not meet that standard, and applies a lower haircut, the broker-
dealer's net capital may be less than its minimum net capital 
requirement in which case the broker-dealer would be in violation of 
the rule.\113\
---------------------------------------------------------------------------

    \112\ Bond Dealers Letter, at 3; SIFMA Letter, at 20.
    \113\ As noted above, applying an incorrect haircut also could 
cause the broker-dealer to file incorrect reports with the 
Commission under Rule 17a-5. See 17 CFR 240.17a-5 (requiring broker-
dealers to periodically file financial reports that, among other 
things, contain computations of net capital).
---------------------------------------------------------------------------

    The Commission understands, as noted by commenters, that the amount 
of resources broker-dealers can allocate toward making assessments of 
creditworthiness for purposes of Rule 15c3-1 will differ across broker-
dealers and expects that this difference will be reflected in the 
policies and procedures for assessing creditworthiness established by 
the firms.\114\ For example, a small broker-dealer may not have the 
resources to support a credit risk department comprised of analysts 
that perform internal credit assessments. In this case, the firm may 
establish a process for assessing creditworthiness that relies more on 
external factors, such as credit spreads, default statistics, and 
credit analysis. A broker-dealer with a large portfolio of debt 
securities may instead use an internal approach for assessing 
creditworthiness, which takes into consideration a multitude of 
factors, such as default probabilities, expected and unexpected losses, 
time effects, default correlations, and loss distributions, among other 
things. The Commission also anticipates that some broker-dealers, 
particularly those that hold few positions, may elect not to devote 
resources toward performing credit risk analysis and maintaining 
policies and procedures, and instead will apply a greater haircut to 
their proprietary positions in commercial paper, nonconvertible debt, 
and preferred stock, as permitted by the rule.
---------------------------------------------------------------------------

    \114\ See Bond Dealers Letter, at 3; SIFMA Letter, at 18.
---------------------------------------------------------------------------

    Finally, as discussed above, a broker-dealer (rather than its 
parent or an affiliate) must establish, document, maintain, and enforce 
the policies and procedures for assessing whether a position has only a 
minimal amount of credit risk.\115\ This does not mean that a broker-
dealer cannot incorporate into its own policies and procedures the 
credit policies and procedures used by its parent or an affiliate. 
However, the broker-dealer must establish, document, maintain, and 
enforce its own policies and procedures and apply them itself in making 
creditworthiness determinations. It may not simply rely on 
determinations made by its parent or an affiliate.
---------------------------------------------------------------------------

    \115\ See SIFMA Letter, at 21.
---------------------------------------------------------------------------

b. Appendix A to Rule 15c3-1
i. Proposal
    Appendix A to Rule 15c3-1 permits broker-dealers to employ a 
standardized theoretical option pricing model to determine a potential 
loss for a portfolio of listed options positions and related positions 
to compute a single haircut for the group of positions.\116\ Under 
Appendix A, a broker-dealer groups the options and related positions in 
a portfolio and stresses the current market

[[Page 1530]]

price for each position at various equidistant points along a range of 
positive and negative potential future market movements, using an 
approved theoretical option pricing model that satisfies certain 
conditions specified in the rule.\117\ Positions that have more 
potential price volatility must be stressed across a wider range of 
positive and negative potential future market movements than positions 
with lower price volatility.\118\ For example, a broker-dealer other 
than a non-clearing option specialist or market maker must employ a 
range of potential future market movements for major market foreign 
currencies of () 6%, whereas the range for all other 
foreign currencies is () 20%.\119\ Thus, major market 
foreign currency options receive more favorable treatment than options 
on all other currencies when using theoretical option pricing models to 
compute net capital deductions.\120\
---------------------------------------------------------------------------

    \116\ See 17 CFR 240.15c3-1a(b)(1). Broker-dealers also may 
elect a strategy-based methodology. See 17 CFR 240.15c3-1a(b)(2).
    \117\ See 17 CFR 240.15c3-1a(b)(1). Presently, there is only one 
theoretical options pricing model that has been approved for this 
purpose.
    \118\ See 17 CFR 240.15c3-1a(b)(1)(iii).
    \119\ See 17 CFR 240.15c3-1a(b)(1)(iii)(B) through (C). A 
broker-dealer that is a non-clearing option specialist or market 
maker must employ a range of potential future market movements for 
major market foreign currencies of () 4% (i.e., less 
than the () 6% required of other broker-dealers). 17 CFR 
240.15c3-1a(b)(1)(iv)(A).
    \120\ See 17 CFR 240.15c3-1a(b)(1)(iii)(B) through (C) and 
(b)(1)(iv)(A).
---------------------------------------------------------------------------

    Prior to today's amendments, the rule defined the term major market 
foreign currency to mean ``the currency of a sovereign nation whose 
short term debt is rated in one of the two highest categories by at 
least two nationally recognized statistical rating organizations and 
for which there is a substantial inter-bank forward currency market.'' 
\121\ Further, the rule provided that ``the European Currency Unit 
(ECU) shall be deemed a major market foreign currency.'' \122\
---------------------------------------------------------------------------

    \121\ Removal of Certain References to Credit Ratings under the 
Securities Exchange Act of 1934, 76 FR at 26554-26555.
    \122\ Id.
---------------------------------------------------------------------------

    With respect to the definition of major market foreign currency, 
the Commission proposed to remove the phrase ``whose short-term debt is 
rated in one of the two highest categories by at least two nationally 
recognized statistical rating organizations.'' \123\ The proposed 
change would modify the definition to include foreign currencies only 
``for which there is a substantial inter-bank forward currency 
market.'' \124\ The Commission also proposed to eliminate the specific 
reference in the rule to the European Currency Unit (``ECU''), which 
was the only currency explicitly identified in the rule as a major 
market foreign currency for the purposes of Appendix A.\125\ As the 
Commission stated in the proposing release, because of the 
establishment of the euro as the official currency of the euro-zone, a 
specific reference to the ECU was no longer needed.\126\ The Commission 
also stated that a specific reference to the euro was not necessary, as 
it is a foreign currency with a substantial inter-bank forward currency 
market.\127\
---------------------------------------------------------------------------

    \123\ Id.
    \124\ Id.
    \125\ Id.
    \126\ Id.
    \127\ Id.
---------------------------------------------------------------------------

ii. Comments
    The Commission received two comment letters in response to its 
request for comment.\128\ One commenter supported the proposed 
definition of the term major market foreign currency, stating that 
``the proposed definition is sufficient to allow broker-dealers to 
determine what currencies are `major market foreign currencies.' '' 
\129\ Both commenters stated that the Commission should create a list 
of major market foreign currencies and update it periodically to 
clarify the new definition in Appendix A.\130\ One commenter suggested 
that if the Commission chooses not to create a list of major market 
foreign currencies, it should propose an alternative measure of 
creditworthiness and define the term as one where the currency is 
issued by a nation whose sovereign debt presents ``minimal credit 
risk.'' \131\
---------------------------------------------------------------------------

    \128\ See Better Markets Letter; CFA Institute Letter; see also 
Removal of Certain References to Credit Ratings under the Securities 
Exchange Act of 1934, 76 FR at 26555.
    \129\ See CFA Institute Letter, at 4 (``[T]he existence of a 
substantial inter-bank forward currency market indicates market 
interest and the existence of market oversight and thus provides a 
strong indication of market sentiment about the quality of 
currencies within that definition.'').
    \130\ Better Markets Letter, at 9; CFA Institute Letter, at 5.
    \131\ See Better Markets Letter, at 9.
---------------------------------------------------------------------------

iii. Final Rule
    For the reasons described below, the Commission is adopting the 
amendments to Appendix A as proposed.\132\ Specifically, the Commission 
is removing from the definition of major market foreign currency the 
phrase ``whose short-term debt is rated in one of the two highest 
categories by at least two nationally recognized statistical rating 
organizations.'' \133\ The change modifies the definition to include 
foreign currencies only ``for which there is a substantial inter-bank 
forward currency market.'' \134\ Also, the Commission is eliminating 
the specific reference in the rule to the ECU, which was identified, by 
rule, as the only major market foreign currency for the purposes of 
Appendix A.\135\ As the Commission noted in the proposing release, 
specific reference to the ECU is no longer needed because the euro has 
been established as the official currency of the euro-zone.\136\ 
Further, the specific reference to the euro is not necessary as it is a 
foreign currency with a substantial inter-bank forward currency market, 
consistent with the rule as amended.
---------------------------------------------------------------------------

    \132\ See paragraph (b)(1)(i)(C) of Rule 15c3-1a, as amended.
    \133\ Id.
    \134\ Id.
    \135\ Id.
    \136\ Removal of Certain References to Credit Ratings under the 
Securities Exchange Act of 1934, 76 FR at 26555.
---------------------------------------------------------------------------

    In order to retain a degree of flexibility, the Commission is not 
codifying in the rule a list of currencies that meet the definition of 
major market foreign currency though some commenters requested such a 
list. However, broker-dealers may treat a foreign currency as a major 
market foreign currency for the purposes of Appendix A if the currency 
is a major foreign currency for purposes of applying a 6% (rather than 
20%) haircut under Rule 15c3-1. Currently, under a staff 
interpretation, broker-dealers are subject to a 6% (rather than 20%) 
unhedged currency risk exposure haircut on foreign currency balances 
and positions in the euro, the British pound, the Swiss franc, the 
Canadian dollar, and the Japanese yen.\137\ The Commission believes the 
staff interpretation identifies currencies that all meet the definition 
of major market foreign currency for the purposes of Appendix A as they 
all have a substantial inter-bank forward currency market. 
Consequently, broker-dealers may treat these currencies as major market 
foreign currencies under Appendix A. By treating these currencies as 
major market foreign currencies, the haircuts applicable to foreign 
currencies under Rule 15c3-1 are more closely aligned with the haircuts 
applicable to options on the same foreign currencies under

[[Page 1531]]

Appendix A.\138\ Given this interpretation identifying certain foreign 
currencies that meet the definition of major market foreign currency, 
the Commission believes it has addressed the concern raised by one 
commenter that, in the absence of a list, the Commission should define 
the term as one where the currency is issued by a nation whose 
sovereign debt presents minimal credit risk.\139\
---------------------------------------------------------------------------

    \137\ See FINRA Interpretations of Financial and Operational 
Rules, Rule 15c3-1(c)(2)(vi)/08, available at http://www.finra.org/web/groups/industry/@ip/@reg/@rules/documents/interpretationsfor/p037763.pdf, p. 406 (publishing the staff's interpretation). A 20% 
haircut applies to unhedged currency risk exposure on all other 
foreign currency balances and positions. Id. These interpretations 
are provided to FINRA from the Commission staff in the Division of 
Trading and Markets. Broker-dealers can also seek assurance as to 
whether another foreign currency meets the definition of major 
market foreign currency by, for example, requesting guidance from 
the staff.
    \138\ Treating the option consistently with the instrument 
underlying the option is supported by Appendix A. For example, under 
Appendix A, the range of potential future market movements that must 
be employed for a portfolio of equity positions with a ready market 
is () 15%. See 17 CFR 240.15c3-1a(b)(1)(iii)(A). Under 
Rule 15c3-1, the haircut that must be applied to an equity security 
with a ready market is 15%. See 17 CFR 240.15c3-1(c)(2)(vi)(J).
    \139\ See Better Markets Letter, at 9.
---------------------------------------------------------------------------

c. Appendix E to Rule 15c3-1
i. Proposal
    Certain broker-dealers (``ANC broker-dealers'') are approved by the 
Commission to use internal value-at-risk (``VaR'') models to determine 
market risk charges for proprietary securities and derivatives 
positions and to take a credit risk charge in lieu of a 100% charge for 
unsecured receivables related to OTC derivatives transactions.\140\ 
Specifically, under Appendix E to Rule 15c3-1, ANC broker-dealers are 
permitted to add back to net worth uncollateralized receivables from 
counterparties arising from OTC derivatives transactions (i.e., they 
can add back the amount of the uncollateralized current exposure).\141\ 
Instead of the 100% deduction that applies to most unsecured 
receivables under Rule 15c3-1, ANC broker-dealers are permitted to take 
a credit risk charge based on the uncollateralized credit exposure to 
the counterparty.\142\ In most cases, the credit risk charge is 
significantly less than a 100% deduction, since it is a percentage of 
the amount of the receivable that otherwise would be deducted in full. 
ANC broker-dealers are permitted to use this approach because they are 
required to implement processes for analyzing credit risk to OTC 
derivative counterparties and to develop mathematical models for 
estimating credit exposures arising from OTC derivatives transactions.
---------------------------------------------------------------------------

    \140\ See 17 CFR 240.15c3-1(a)(7); 17 CFR 240.15c3-1e. As part 
of the application to use internal models, an entity seeking to 
become an ANC broker-dealer must identify the types of positions it 
intends to include in its model calculation. See 17 CFR 240.15c3-
1e(a)(1)(iii). After approval, an ANC broker-dealer must obtain 
Commission approval to make a material change to the model, 
including a change to the types of positions included in the model. 
See 17 CFR 240.15c3-1e(a)(8). An ANC broker-dealer must maintain 
minimum tentative net capital of at least $1 billion and minimum net 
capital of at least $500 million. See 17 CFR 240.15c3-1(a)(7)(i). 
The Commission has proposed raising these requirements to $5 billion 
and $1 billion, respectively. See Capital, Margin, and Segregation 
Requirements for Security-Based Swap Dealers and Major Security-
Based Swap Participants and Capital Requirements for Broker-Dealers, 
Exchange Act Release No. 68071 (Oct. 18, 2012), 77 FR 70213 (Nov. 
23, 2012).
    \141\ See 17 CFR 240.15c3-1e(c).
    \142\ See 17 CFR 240.15c3-1e(c); 17 CFR 240.15c3-1(a)(7). The 
Commission has proposed narrowing this treatment of OTC derivatives 
exposures so that it would apply only to uncollateralized 
receivables from commercial end users arising from security-based 
swaps (i.e., uncollateralized receivables from other types of 
counterparties would be subject to the 100% deduction from net 
worth). See Capital, Margin, and Segregation Requirements for 
Security-Based Swap Dealers and Major Security-Based Swap 
Participants and Capital Requirements for Broker-Dealers, 77 FR at 
70240-70244.
---------------------------------------------------------------------------

    Under Appendix E, the credit risk charge is the sum of three 
calculated amounts: (1) A counterparty exposure charge; (2) a 
concentration charge if the current exposure to a single counterparty 
exceeds certain thresholds; and (3) a portfolio concentration charge if 
aggregate current exposure to all counterparties exceeds certain 
thresholds.\143\ The first component of the credit risk charge is the 
counterparty exposure charge.\144\ The exposure charge for a given 
counterparty (other than a counterparty that is insolvent, in a 
bankruptcy proceeding, or in default of an obligation on its senior 
debt) is the credit equivalent amount of the ANC broker-dealer's 
exposure to the counterparty multiplied by an applicable credit risk 
weight factor and then multiplied by 8%.\145\ The credit equivalent 
amount is the sum of the ANC broker-dealer's: (1) Maximum potential 
exposure (``MPE'') to the counterparty multiplied by a back-testing 
determined factor; and (2) current exposure to the counterparty.\146\ 
The MPE amount is a charge to address potential future exposure and is 
calculated using the ANC broker-dealer's VaR model as applied to the 
counterparty's positions after giving effect to a netting agreement 
with the counterparty, taking into account collateral received from the 
counterparty, and taking into account the current replacement value of 
the counterparty's positions.\147\ The current exposure amount is the 
current replacement value of the counterparty's positions after giving 
effect to a netting agreement with the counterparty and taking into 
account collateral received from the counterparty.\148\ The 
counterparty exposure charge is the sum of the MPE and current exposure 
amounts multiplied by an applicable credit risk weight factor and then 
multiplied by 8%.\149\ Appendix E to Rule 15c3-1 prescribes three 
standardized credit risk weight factors (20%, 50%, and 150%) for 
transactions with counterparties and, as an alternative, permits an ANC 
broker-dealer with Commission approval to use internal methodologies to 
determine appropriate credit risk weights to apply to 
counterparties.\150\ A higher percentage credit risk weight factor 
results in a larger counterparty exposure charge amount. Prior to 
today's amendments, ANC broker-dealers were permitted to use NRSRO 
credit ratings or internally derived credit ratings to determine the 
appropriate risk weight factor.
---------------------------------------------------------------------------

    \143\ 17 CFR 240.15c3-1e(c).
    \144\ 17 CFR 240.15c3-1e(c)(1).
    \145\ See 17 CFR 240.15c3-1e(c)(1)(ii).
    \146\ See 17 CFR 240.15c3-1e(c)(4)(i). The amount of the factor 
is based on back-testing exceptions.
    \147\ See 17 CFR 240.15c3-1e(c)(4)(ii).
    \148\ See 17 CFR 240.15c3-1e(c)(4)(iii).
    \149\ See 17 CFR 240.15c3-1e(c)(1)(ii).
    \150\ See 17 CFR 240.15c3-1e(c)(4)(vi).
---------------------------------------------------------------------------

    The Commission proposed removing paragraphs (c)(4)(vi)(A) through 
(c)(4)(vi)(D) of Appendix E, which specify the appropriate risk weight 
factor of counterparties based on NRSRO credit ratings.\151\ 
Consequently, under the proposal, an ANC broker-dealer would need to 
determine credit risk charges using internal credit ratings or to take 
a 100% capital charge with respect to the exposure to the 
counterparty.\152\ By removing the option to use NRSRO credit ratings, 
a broker-dealer that applies to use the approach set forth in Appendix 
E would need to describe how it will determine the applicable 
counterparty credit risk charge based on internal credit ratings as 
part of its initial application to the Commission.\153\
---------------------------------------------------------------------------

    \151\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26555-26556.
    \152\ Id.
    \153\ Id. at 26555.
---------------------------------------------------------------------------

ii. Comments
    The Commission received two comments in response to its request for 
comment.\154\ One commenter supported the proposed removal of NRSRO 
credit ratings as an option but raised two concerns.\155\ The commenter 
stated first that an internal model may not take into account 
concentration of risk with a specific counterparty, and second that ANC 
firms will apply low risk weights

[[Page 1532]]

to all but the most illiquid instruments.\156\
---------------------------------------------------------------------------

    \154\ Better Markets Letter; CFA Institute Letter; see also 
Removal of Certain References to Credit Ratings under the Securities 
Exchange Act of 1934, 76 FR at 26555-26556.
    \155\ CFA Institute Letter, at 5-6.
    \156\ Id.
---------------------------------------------------------------------------

    Another commenter suggested that the factors listed in the 
proposing release with respect to determining creditworthiness under 
Rule 15c3-1 should become part of Appendix E.\157\ This commenter 
further argued that the factors each broker-dealer needed to use to 
make the determination should be explicitly stated in the rule.\158\
---------------------------------------------------------------------------

    \157\ Better Markets Letter, at 10.
    \158\ Id.
---------------------------------------------------------------------------

iii. Final Rule
    The Commission is adopting the amendments to Appendix E to Rule 
15c3-1 as proposed.\159\ The amendments remove paragraphs (c)(4)(vi)(A) 
through (c)(4)(vi)(D) of Appendix E to Rule 15c3-1, which specify the 
appropriate risk weight factor based on NRSRO credit ratings.\160\ By 
removing the provisions utilizing NRSRO credit ratings, the final rule 
requires an ANC broker-dealer to determine the appropriate risk weight 
factor using internal credit ratings or to take a 100% capital charge 
with respect to the exposure to the counterparty.\161\
---------------------------------------------------------------------------

    \159\ See paragraph (c)(4)(vi) of Rule 15c3-1e, as amended.
    \160\ Id.
    \161\ Id.
---------------------------------------------------------------------------

    All ANC broker-dealers calculate credit risk charges using internal 
credit ratings (rather than using NRSRO credit ratings approach) or 
take a 100% capital charge with respect to the exposure to the 
counterparty risk.\162\ Consequently, removing the option to use NRSRO 
credit ratings will not have an immediate effect on these broker-
dealers. A broker-dealer that applies to become an ANC broker-dealer 
will need to describe how it will determine internal credit ratings for 
the purpose of determining the applicable credit charges for 
counterparty risk in its application to the Commission.
---------------------------------------------------------------------------

    \162\ Currently, there are six ANC broker-dealers: Barclays 
Capital Inc.; Citigroup Global Markets, Inc.; Goldman Sachs & Co.; 
J.P. Morgan Chase Securities LLC; Merrill Lynch Pierce Fenner & 
Smith Incorporated; and Morgan Stanley & Co. Incorporated.
---------------------------------------------------------------------------

    In taking this action, the Commission has considered the views of 
commenters \163\ and determined that whether a model adequately 
considers risks associated with a counterparty or a specific instrument 
is a concern that should be addressed during the initial review of the 
ANC broker-dealer's model, as well as during the monitoring and 
examination of the firm.\164\ The amendments also do not incorporate 
the minimal amount of credit risk standard from Rule 15c3-1 into 
Appendix E, as suggested by one commenter.\165\ This standard is 
replacing a binary NRSRO credit rating standard under which the 
application of a lower or higher haircut amount depends on whether the 
commercial paper is rated in the top three rating categories and the 
nonconvertible debt and preferred stock is rated in the top four rating 
categories. Consequently, a given instrument either meets the 
requirement to apply a lower haircut amount or is subject to the higher 
amount. The NRSRO credit rating standard in Appendix E to Rule 15c3-1 
is not binary in that there are three different credit risk weights 
(20%, 50%, and 150%) that are determined by three different levels of 
credit rating: The two highest rating categories; the third and fourth 
highest rating categories; and below the fourth highest rating. Thus, 
the minimal amount of credit risk standard would not be a suitable 
replacement for the NRSRO credit ratings standard because the minimal 
amount of credit risk standard, as drafted for Rule 15c3-1, would apply 
only to the second gradation (the third and fourth highest rating 
categories).\166\
---------------------------------------------------------------------------

    \163\ CFA Institute Letter, at 5; Better Markets Letter, at 10.
    \164\ See, e.g., 17 CFR 15c3-1e(a)(1)(iv).
    \165\ Better Markets Letter, at 10.
    \166\ See 15 CFR 15c3-1e(c)(4)(vi)(B).
---------------------------------------------------------------------------

    In addition, as stated throughout this release, the Commission has 
determined not to mandate that a broker-dealer use any specific factor 
in its credit analysis. Consequently, the Commission does not believe 
it would be appropriate to codify the list of factors in the rule as 
suggested by one commenter.
d. Appendix F to Rule 15c3-1 and Form X-17A-5, Part IIB
i. Proposal
    Similar to ANC broker-dealers, a type of limited purpose broker-
dealer that deals solely in OTC derivatives (an ``OTC derivatives 
dealer'') is permitted, with Commission approval, to calculate net 
capital using internal models as the basis for taking market risk and 
credit risk charges in lieu of the standardized haircuts for classes of 
positions for which they have been approved to use VaR models.\167\ 
Specifically, under Appendix F to Rule 15c3-1, OTC derivatives dealers 
are permitted to add back to net worth uncollateralized receivables 
from counterparties arising from OTC derivatives transactions (i.e., 
they can add back the amount of the uncollateralized current exposure). 
Instead of the 100% deduction that applies to most unsecured 
receivables under Rule 15c3-1, OTC derivatives dealers are permitted to 
take a credit risk charge based on counterparty factors and 
concentration charges.\168\ In most cases, the counterparty factors and 
concentration charges are significantly less than a 100% deduction, 
since the charges are a percentage of the amount of the receivable that 
otherwise would be deducted in full. OTC derivatives dealers are 
permitted to use this approach because they are required to implement 
processes for analyzing credit risk to OTC derivative counterparties 
and to develop mathematical models for estimating credit exposures 
arising from OTC derivative transactions.
---------------------------------------------------------------------------

    \167\ See 17 CFR 240.15c3-1(a)(5); 17 CFR 240.15c3-1f. As part 
of the application to use internal models, an entity seeking to 
become an OTC derivatives dealer must identify the types of 
positions it intends to include in its model calculation. See 17 CFR 
240.15c3-1f(a)(1)(ii). After approval, an OTC derivatives dealer 
must obtain Commission approval to make a material change to the 
model, including a change to the types of positions included in the 
model. See 17 CFR 240.15c3-f(a)(3). OTC derivatives dealers are 
exempt from certain broker-dealer requirements, including membership 
in an SRO (17 CFR 240.15b9-2), broker-dealer margin rules (17 CFR 
240.36a1-1), and application of the Securities Investor Protection 
Act of 1970 (17 CFR 240.36a1-2). OTC derivatives dealers are subject 
to special requirements, including limitations on the scope of their 
securities activities (17 CFR 240.15a-1), specified internal risk 
management control systems (17 CFR 240.15c3-4), recordkeeping 
obligations (17 CFR 240.17a-3(a)(10)), and reporting 
responsibilities (17 CFR 240.17a-12). They are also subject to 
alternative net capital treatment (17 CFR 240.15c3-1(a)(5)). See 17 
CFR 240.15a-1, Preliminary Note. The minimum net capital 
requirements for an OTC derivatives dealer are tentative net capital 
of at least $100 million and net capital of at least $20 million. 
See 17 CFR 240.15c3-1(a)(5) and (c)(15).
    \168\ See 17 CFR 240.15c3-1f(d); 17 CFR 240.15c3-1(a)(5).
---------------------------------------------------------------------------

    Under Appendix F to Rule 15c3-1, OTC derivatives dealers are 
required to deduct from their net capital credit risk charges that take 
counterparty risk into consideration.\169\ This charge has two parts 
and is computed on a counterparty-by-counterparty basis. First, for 
each counterparty with an investment or speculative grade rating, an 
OTC derivatives dealer must take a net capital charge equal to the net 
replacement value in the account of the counterparty (``net replacement 
value'') multiplied by 8%, and further multiplied by a counterparty 
factor.\170\ As part of this deduction, the OTC derivatives dealer must 
apply a counterparty risk weight factor of either 20%, 50%, or 
100%.\171\ Prior to today's amendments, the counterparty risk weight 
factor (i.e., 20%, 50%, or 100%) was determined using either NRSRO

[[Page 1533]]

credit ratings or the firm's internal credit ratings.\172\
---------------------------------------------------------------------------

    \169\ See 17 CFR 240.15c3-1f(d).
    \170\ See 17 CFR 240.15c3-1f(d)(2).
    \171\ See 17 CFR 240.15c3-1f(d)(2)(i) through (iii).
    \172\ See 17 CFR 240.15c3-1f(d)(2) and (4).
---------------------------------------------------------------------------

    The second part of the credit risk charge consists of a 
concentration charge that applies when the net replacement value in the 
account of any one counterparty exceeds 25% of the OTC derivatives 
dealer's tentative net capital.\173\ The concentration charge increases 
in relation to the OTC derivatives dealer's exposure to lower rated 
counterparties.\174\ Prior to today's amendments, this concentration 
charge was also determined using either NRSRO credit ratings or the 
firm's internal credit ratings. Currently, OTC derivatives dealers do 
not use NRSRO credit ratings to determine their counterparty factors 
and concentration charges.
---------------------------------------------------------------------------

    \173\ See 17 CFR 240.15c3-1f(d)(3).
    \174\ For counterparties that are highly rated, the 
concentration charge equals 5% of the amount of the net replacement 
value in excess of 25% of the OTC derivatives dealer's tentative net 
capital. 17 CFR 240.15c3-1f(d)(3)(i). The concentration charge for 
counterparties with ratings among the lowest rating categories would 
equal 50% of the amount of the net replacement value in excess of 
25% of the OTC derivatives dealer's tentative net capital. 17 CFR 
240.15c3-1f(d)(3)(iii).
---------------------------------------------------------------------------

    The Commission proposed to amend paragraphs (d)(2), (d)(3)(i), 
(d)(3)(ii), (d)(3)(iii), and (d)(4) of Appendix F to Rule 15c3-1, which 
permit the use of NRSRO ratings (as an alternative to internal credit 
ratings) to determine an OTC derivatives dealer's counterparty factors 
and concentration charges. Because the proposal would eliminate the 
option to use NRSRO credit ratings, a broker-dealer that applies to 
become an OTC derivatives dealer and operate under Appendix F will 
need, as part of its initial application, to request Commission 
approval to use internal credit ratings (as the option to use NRSRO 
credit ratings is being eliminated). The OTC derivatives dealer would 
need to describe how it will determine the applicable counterparty 
factors and concentration charges as part of its initial application to 
the Commission.
    As part of its proposal, the Commission also proposed conforming 
amendments to the General Instructions to Form X-17A-5, Part IIB. This 
form constitutes the basic financial and operational report OTC 
derivatives dealers are required to file with the Commission. Under the 
heading ``Computation of Net Capital and Required Net Capital,'' the 
Commission proposed making conforming changes to the section ``Credit 
risk exposure.'' This section instructs an OTC derivatives dealer on 
how to compute the counterparty credit risk charges for purposes of the 
dealer's net capital computation. The proposed amendments to the 
instructions would eliminate references to NRSRO credit ratings for 
purposes of determining these charges.
ii. Comments
    The Commission received two comments in response to its request for 
comment.\175\ One commenter suggested that the Commission require OTC 
derivatives dealers to use counterparty factors similar to those 
proposed under Appendix E discussed above (e.g., 20%, 50% or 150% risk 
weights based on internal credit ratings to determine capital 
deductions) and argued against requiring OTC derivatives dealers to 
reapply to the Commission to use internal credit ratings.\176\ This 
commenter also expressed concern that an OTC derivatives dealer's 
internal model may not take into account concentration of risk with a 
specific counterparty.\177\
---------------------------------------------------------------------------

    \175\ CFA Institute Letter; Better Markets Letter; see also 
Removal of Certain References to Credit Ratings under the Securities 
Exchange Act of 1934, 76 FR at 26556.
    \176\ CFA Institute Letter, at 6.
    \177\ Id.
---------------------------------------------------------------------------

    The second commenter suggested that the Commission ``supply an 
appropriate alternative standard of creditworthiness that derivatives 
dealers must apply'' such as ``an explicit set of factors that will 
appropriately gauge the credit risk associated with counterparties in 
derivatives transactions.'' \178\
---------------------------------------------------------------------------

    \178\ Better Markets Letter, at 10, n.15.
---------------------------------------------------------------------------

iii. Final Rule
    The Commission is adopting the amendments to Appendix F to Rule 
15c3-1 as proposed.\179\ Specifically, the amendments remove the use of 
NRSRO credit ratings from paragraphs (d)(2), (d)(3)(i), (d)(3)(ii), 
(d)(3)(iii), and (d)(4) of Appendix F to Rule 15c3-1, which, prior to 
today's amendments, permitted the use of NRSRO ratings when determining 
counterparty credit risk and concentration charges.\180\ Because the 
amendments remove the option to use NRSRO credit ratings, a broker-
dealer that applies to become an OTC derivatives dealer will need, as 
part of its initial application, to request Commission approval to use 
internal credit ratings (as the option to use NRSRO credit ratings is 
being eliminated). The applicant will need to describe how it will use 
internal credit ratings to determine the applicable credit risk charges 
for counterparty risk in its application to the Commission. The current 
OTC derivatives dealers will not need to seek new approval from the 
Commission.\181\
---------------------------------------------------------------------------

    \179\ See paragraph (d) of Rule 15c3-1f, as amended.
    \180\ See paragraphs (d)(2), (d)(3)(i), (d)(3)(ii), (d)(3)(iii), 
and (d)(4) of Rule 15c3-1f, as amended.
    \181\ Currently, four firms are operating pursuant to Appendix F 
to Rule 15c3-1. These firms are: Credit Suisse Capital LLC; Goldman 
Sachs Financial Markets, L.P.; Merrill Lynch Financial Markets, 
Inc.; and Natixis Derivatives Inc. Natixis Derivatives, Inc. filed a 
Form BDW on October 17, 2013.
---------------------------------------------------------------------------

    The Commission also is adopting the conforming amendments to the 
General Instructions to Form X-17A-5, Part IIB as proposed.
    Consistent with the discussion above relating to Appendix E to Rule 
15c3-1, the Commission has determined that whether a model adequately 
considers concentration risk with a specific counterparty is a concern 
that is best addressed during the initial review of, or an amendment 
to, an OTC derivatives dealer's model as well as during the monitoring 
and examination of the OTC derivatives dealer.\182\ Further, as stated 
above, the current OTC derivatives dealers do not use NRSRO ratings to 
compute the credit risk and concentration charges under Appendix F. 
Thus, the amendments will not impact these firms.
---------------------------------------------------------------------------

    \182\ See, e.g., 17 CFR 15c3-1f(a)(1)(ii); see also CFA 
Institute Letter, at 6.
---------------------------------------------------------------------------

    The Commission is not adopting an alternative standard in the rule, 
such as the minimal amount of credit risk standard. As discussed above, 
the minimal amount of credit risk standard is replacing a binary NRSRO 
credit rating standard under which the application of a lower or higher 
haircut amount depends on whether the commercial paper is rated in the 
top three rating categories and the nonconvertible debt and preferred 
stock is rated in the top four rating categories. Consequently, a given 
instrument either meets the requirement to apply a lower haircut amount 
or is subject to the higher amount. The NRSRO credit rating standard in 
Appendix F to Rule 15c3-1 is not binary in that there are three ranges 
of credit ratings to determine the applicable risk weight factors and 
concentration charges: The two highest rating categories; the third and 
fourth highest rating categories; and below the fourth highest rating 
category. Thus, the minimal amount of credit risk standard would not be 
a suitable replacement for the credit risk charges required under 
Appendix F to Rule 15c3-1 because the minimal amount of credit risk 
standard, as drafted for Rule 15c3-1, would apply only to the second

[[Page 1534]]

range (the third and fourth highest rating categories).\183\
---------------------------------------------------------------------------

    \183\ See 17 CFR 240.15c3-1f(d)(2)(ii); 17 CFR 240.15c3-
1f(d)(3)(ii).
---------------------------------------------------------------------------

    In addition, as stated throughout this release, the Commission has 
determined not to mandate that a broker-dealer use any specific factor 
in its credit analysis; instead, each firm will need to tailor its 
procedures for determining credit risk to the broker-dealer's business 
model.\184\
---------------------------------------------------------------------------

    \184\ Better Markets Letter, at 10, n.15.
---------------------------------------------------------------------------

e. Appendix G to Rule 15c3-1
    Appendix G to Rule 15c3-1 provides that broker-dealers may use the 
ANC computation only if their ultimate holding companies agree to 
provide the Commission with additional information about the financial 
condition of the holding company and its affiliates.\185\ Appendix G is 
intended to provide the Commission with certain information to assess 
the financial and operational health of the ultimate holding company 
and its potential impact on the risk exposure of the broker-
dealer.\186\ Paragraph (a) of Appendix G sets forth a methodology for 
computing allowable capital and allowances for market and credit risk 
at the consolidated holding company level. One aspect of calculating 
credit risk in Appendix G provided that those firms must use credit 
ratings in accordance with the applicable provisions of Appendix E. 
Since those provisions in Appendix E are being deleted, the Commission 
proposed deleting the corresponding references to those provisions in 
Appendix G.\187\ Specifically, the Commission proposed to delete 
references in paragraph (a)(3)(i)(F) of Appendix G that correspond to 
the provisions of Appendix E that the Commission is deleting as 
described above.\188\
---------------------------------------------------------------------------

    \185\ 17 CFR 240.15c3-1g.
    \186\ Id. Currently, each broker-dealer that uses the ANC 
computation has an ultimate holding company that has a principal 
regulator.
    \187\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26556-26557.
    \188\ Id.
---------------------------------------------------------------------------

    The Commission received no comments addressing these changes.\189\ 
The Commission is amending Appendix G to Rule 15c3-1 as proposed.\190\ 
Accordingly, the Commission is adopting a conforming amendment to 
Appendix G that deletes references in paragraph (a)(3)(i)(F) of 
Appendix G that correspond to the provisions of Appendix E that the 
Commission is deleting as described above.\191\
---------------------------------------------------------------------------

    \189\ Id. at 26557.
    \190\ See paragraph (a)(3)(i)(F) of Rule 15c3-1g, as amended.
    \191\ Id.
---------------------------------------------------------------------------

f. Exhibit A to Rule 15c3-3
    Rule 15c3-3 (the ``Customer Protection Rule'') under the Exchange 
Act is designed to protect customer funds and securities held by 
broker-dealers.\192\ To meet this objective, Rule 15c3-3 requires a 
broker-dealer that maintains custody of customer securities and cash (a 
``carrying broker-dealer'') to take two primary steps to safeguard 
these assets. The steps are designed to protect customers by 
segregating their securities and cash from the broker-dealer's 
proprietary business activities. If the broker-dealer fails 
financially, the securities and cash should be readily available to be 
returned to the customers. In addition, if the failed broker-dealer is 
liquidated in a formal proceeding under the Securities Investor 
Protection Act of 1970, the securities and cash should be isolated and 
readily identifiable as customer property and, consequently, available 
to be distributed to customers ahead of other creditors.\193\
---------------------------------------------------------------------------

    \192\ 17 CFR 240.15c3-3.
    \193\ See 15 U.S.C. 78aaa et seq.
---------------------------------------------------------------------------

    The first step to safeguard customer assets under Rule 15c3-3 
requires a carrying broker-dealer to maintain possession or control of 
all fully paid and excess margin securities of its customers.\194\ 
Physical possession or control means the broker-dealer must hold these 
securities in one of several locations specified in Rule 15c3-3 and 
free of liens or any other interest that could be exercised by a third 
party to secure an obligation of the broker-dealer.\195\ Permissible 
locations include a bank, as defined in section 3(a)(6) of the Exchange 
Act, and a clearing agency.\196\ A broker-dealer must make a daily 
determination of the amount of fully paid and excess margin securities 
it holds for customers and compare it to the amount actually held in 
the permissible locations in order to comply with this aspect of the 
rule.\197\
---------------------------------------------------------------------------

    \194\ 17 CFR 240.15c3-3(b)(1).
    \195\ 17 CFR 240.15c3-3(c).
    \196\ 17 CFR 240.15c3-3(c).
    \197\ 17 CFR 240.15c3-3(d).
---------------------------------------------------------------------------

    The second step covers customer funds and requires that a carrying 
broker-dealer must maintain a reserve of cash or qualified securities 
in one or more accounts at a bank that is at least equal in value to 
the net cash owed to customers and the amount of cash obtained from the 
use of customer securities.\198\ The account must be titled ``Special 
Account for the Exclusive Benefit of Customers of the Broker-Dealer'' 
(``customer reserve account'').\199\ The amount of cash and/or 
qualified securities that must be kept in the customer reserve account 
is computed pursuant to a formula set forth in Exhibit A to Rule 15c3-
3.\200\ Under the Exhibit A formula, the broker-dealer adds customer 
credit items (e.g., cash in customer securities accounts) and then 
subtracts from that amount customer debit items (e.g., margin 
loans).\201\ If credit items exceed debit items, the net amount must be 
on deposit in the customer reserve account in the form of cash and/or 
qualified securities.\202\ If the debits exceed credits, no deposit is 
necessary. Funds deposited in a customer reserve account cannot be 
withdrawn until the broker-dealer completes another computation that 
shows that the broker-dealer has on deposit more funds than the reserve 
formula requires.
---------------------------------------------------------------------------

    \198\ 17 CFR 240.15c3-3(e).
    \199\ 17 CFR 240.15c3-3(e)(1).
    \200\ 17 CFR 240.15c3-3a.
    \201\ 17 CFR 240.15c3-3a.
    \202\ 17 CFR 240.15c3-3(e).
---------------------------------------------------------------------------

    Under Note G to Exhibit A, a carrying broker-dealer may include 
margin collateral for transactions in security futures products as a 
debit in its reserve formula computation if that margin collateral is 
required and on deposit at a clearing agency or derivatives clearing 
organization that meets at least one of four conditions: (1) The 
clearing agency or derivatives clearing organization maintains the 
highest investment-grade rating from an NRSRO; (2) the clearing agency 
or derivatives clearing organization maintains security deposits from 
clearing members in connection with regulated options or futures 
transactions and assessment power over member firms that equal a 
combined total of at least $2 billion, at least $500 million of which 
must be in the form of security deposits; (3) the clearing agency or 
derivatives clearing organization maintains at least $3 billion in 
margin deposits; or (4) the clearing agency or derivatives clearing 
organization obtains an exemption from the Commission.
    Margin collateral that is posted for customer positions in security 
futures products constitutes an unsecured receivable from the clearing 
agency or derivatives clearing organization. Therefore, requiring a 
clearing agency or a derivatives clearing organization to meet certain 
minimum creditworthiness criteria before margin collateral deposited 
with that entity may be included as a debit in a broker-dealer's 
customer reserve formula is consistent with the customer protection 
function of Rule 15c3-3 because the debit offsets any credits when 
computing the customer reserve deposit requirement.

[[Page 1535]]

Accordingly, this requirement is intended to provide reasonable 
assurance that customer margin collateral deposited with a clearing 
agency or derivatives clearing organization related to security futures 
products will be available to be returned to the broker-dealer and, 
therefore, can serve as an appropriate offset to customer credits in 
the reserve formula.
    The Commission proposed to remove the first criterion described 
above (i.e., the highest investment-grade rating from an NRSRO).\203\ 
The criteria are disjunctive and, therefore, a clearing agency or 
derivatives clearing organization needs to satisfy only one criterion 
to permit a broker-dealer to treat posted customer margin collateral as 
a reserve formula debit. In the proposing release, the Commission 
stated that the proposed amendment would not lessen the protections for 
customer funds and securities.\204\ While one potential criterion would 
be removed, currently, only the Options Clearing Corporation (``OCC'') 
clears and accepts margin on security futures products. The OCC 
qualifies under two of the other criteria in Note G.\205\ If at a later 
date another clearing entity accepts margin on security futures 
products, and it did not meet one of the remaining criteria, a broker-
dealer may request an exemption for that clearing entity under Note G 
to Appendix A to Rule 15c3-3.\206\ Thus, the proposed amendment does 
not disqualify any current clearing entities, nor require a broker-
dealer to obtain new clearing memberships to comply with Rule 15c3-3.
---------------------------------------------------------------------------

    \203\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26557.
    \204\ Id.
    \205\ At the end of 2012, OCC maintained $78.8 billion in margin 
deposits, well in excess of the $3 billion threshold set forth in 
paragraph (b)(1)(iii) of Note G. The OCC also maintained $2.7 
billion in clearing member deposits, well in excess of the $500 
million threshold set forth in paragraph (b)(1)(ii) of Note G. See 
OCC, 2012 Annual Report (2012) (Notes 3 and 4 to the Financial 
Statements).
    \206\ The Commission may, in its sole discretion, grant such an 
exemption subject to such conditions as are appropriate under the 
circumstances if the Commission determines that such conditional or 
unconditional exemption is necessary or appropriate in the public 
interest and is consistent with the protection of investors. See 17 
CFR 240.15c3-3a(b)(1)(iv), Note G.
---------------------------------------------------------------------------

    The Commission received no comments on the proposed amendment to 
Rule 15c3-3. The Commission is adopting the amendment to Note G to 
Exhibit A to Rule 15c3-3 as proposed by removing paragraph (b)(1)(i).
2. Rule 10b-10
a. Proposal
    Rule 10b-10 under the Exchange Act, the Commission's customer 
confirmation rule, generally requires broker-dealers effecting 
transactions for customers in securities, other than U.S. savings bonds 
or municipal securities, to provide those customers with a written 
notification, at or before completion of the securities transaction, 
disclosing certain information about the terms of the transaction.\207\ 
This required disclosure includes, among other things, the date, time, 
identity, and number of securities bought or sold; the capacity in 
which the broker-dealer acted (e.g., as agent or principal); yields on 
debt securities; and, under special circumstances, the amount of 
compensation the broker-dealer will receive from the customer and any 
other parties.\208\ By requiring these disclosures, the rule serves a 
basic customer protection function by conveying information that: (1) 
Allows customers to verify the terms of their transactions; (2) alerts 
customers to potential conflicts of interest; (3) acts as a safeguard 
against fraud; and (4) allows customers a means of evaluating the costs 
of their transactions and the quality of the broker-dealer's execution.
---------------------------------------------------------------------------

    \207\ See 17 CFR 240.10b-10.
    \208\ Id.
---------------------------------------------------------------------------

    The Commission proposed to delete paragraph (a)(8) from Rule 10b-
10.\209\ Paragraph (a)(8), which the Commission adopted in 1994, 
requires a broker-dealer to inform the customer in the confirmation if 
a debt security, other than a government security, is unrated by an 
NRSRO.\210\ As explained when it was added to Rule 10b-10 in 1994, 
paragraph (a)(8) was intended to alert customers to the potential need 
to obtain more information about a security from a broker-dealer; it 
was not intended to suggest that an unrated security is inherently 
riskier than a rated security.\211\
---------------------------------------------------------------------------

    \209\ See Removal of Certain References to Credit Ratings under 
the Securities Exchange Act of 1934, 76 FR at 26563-26564 & n.80. 
Consistent with this proposed change, the Commission also proposed 
to re-designate paragraph (a)(9) of the rule, under which a broker-
dealer that is not a member of the Securities Investor Protection 
Corporation generally must disclose that fact, as paragraph (a)(8). 
Id. at 26564 n.89, 26576.
    \210\ See 17 CFR 240.10b-10(a)(8); Confirmation of Transactions, 
Exchange Act Release No. 34962 (Nov. 10, 1994), 59 FR 59612, 59617 
(Nov. 17, 1994), corrected, Securities Exchange Act Release No. 
34962A (Nov. 18, 1994), 59 FR 60555 (Nov. 25, 1994).
    \211\ Id. (stating, ``In most cases, this disclosure should 
verify information that was disclosed to the investor prior to the 
transaction. If the customer was not previously informed of the 
security's unrated status, then confirmation disclosure may prompt a 
dialogue between the customer and the broker-dealer,'' and noting 
that the disclosure was ``not intended to suggest that an unrated 
security is inherently riskier than a rated security.'').
---------------------------------------------------------------------------

    The Commission had previously proposed, and re-proposed, the 
deletion of paragraph (a)(8) from Rule 10b-10.\212\ These previous 
proposals, however, were prompted by concerns regarding the undue 
reliance on NRSRO ratings and confusion about the significance of those 
ratings. Because paragraph (a)(8) of Rule 10b-10 does not refer to 
NRSRO ratings as a means of determining creditworthiness, it arguably 
does not come strictly within section 939A. Nevertheless, to the extent 
that the provision may focus investor attention on ratings issued by 
NRSROs, as distinct from other items of information, the Commission 
believed deleting it would be consistent with the intent of the Dodd-
Frank Act.
b. Comments
---------------------------------------------------------------------------

    \212\ See References to Ratings of Nationally Recognized 
Statistical Rating Organizations, 74 FR 52374; References to Ratings 
of Nationally Recognized Statistical Rating Organizations, 73 FR 
40088.
---------------------------------------------------------------------------

    The Commission received four comments regarding the proposed 
removal of paragraph (a)(8) from Rule 10b-10. One commenter was 
supportive of the deletion, without providing any additional 
comment.\213\ Another commenter recommended that in place of the 
deletion, the proposed rules should require Rule 10b-10 confirmations 
to include information that would ensure that investors understand the 
potential need to learn more about the debt securities that they have 
acquired from their broker-dealers.\214\ The commenter recommended 
requiring broker-dealers to inform investors that debt securities vary 
in terms of their creditworthiness; that investors should understand 
the credit quality of the specific debt securities acquired through 
their broker-dealer; and that credit quality can affect not only the 
value of the debt securities, but also their liquidity and price 
stability.\215\ In contrast, a third commenter believed that the 
removal of paragraph (a)(8) serves no useful purpose, stating: ``We do 
not see how requiring disclosure of the absence of a credit rating in 
any way encourages greater reliance on credit ratings.'' \216\ The 
commenter further recommended that if paragraph (a)(8) were deleted, 
the Commission should not replace it with

[[Page 1536]]

any further required disclosures.\217\ A fourth commenter recommended 
that paragraph (a)(8) of Rule 10b-10 should be retained.\218\ The 
commenter stated that, given that the types of securities that are 
unrated by NRSROs typically include small offerings, the required 
broker-dealer disclosures may no longer signal to investors any need to 
investigate the quality of the securities being purchased.\219\ The 
commenter added that the required notification that certain securities 
are unrated serves to encourage investors to evaluate the securities in 
which they are investing without undermining the overall intent to 
eliminate reliance upon ratings bestowed by NRSROs.\220\
---------------------------------------------------------------------------

    \213\ See SIFMA Letter, n.3 (``SIFMA endorses the Commission's 
proposed changes to Rules 15c3-3 and Rule 10b-10.'').
    \214\ See Better Markets Letter.
    \215\ Id.
    \216\ See Sullivan & Cromwell Letter.
    \217\ Id.
    \218\ See CFA Institute Letter.
    \219\ Id.
    \220\ Id.
---------------------------------------------------------------------------

c. Final Rule
    After careful consideration of the received comments, the 
Commission has decided to delete paragraph (a)(8) from Rule 10b-10, as 
proposed. The Commission acknowledges that, to some extent, the 
paragraph may have served the purpose for which it was added to the 
rule in 1994 by prompting investors to investigate or question a 
broker-dealer about the quality of certain securities. Based on the 
comments received in response to the proposing release, however, the 
Commission believes it is likely that the paragraph's disclosure 
requirement has to a greater extent added to investors' undue reliance 
on credit ratings, and that the deletion of the paragraph is consistent 
with the intent of section 939A of the Dodd-Frank Act to reduce 
reliance on NRSRO credit ratings. In addition, requiring broker-dealers 
to use customer confirmations as a means of providing investors with 
general information related to credit risk and debt securities as 
suggested by commenters would not further paragraph (a)(8)'s purpose of 
flagging unrated securities for more careful investor scrutiny. The 
paragraph was added to the rule to require disclosure of information 
suggesting that investors may want to obtain more information about 
certain unrated securities, not to ``require that confirmations alert 
customers to the importance of understanding the credit quality of a 
debt security and the impact of credit quality on the value, resale, 
and price of such securities.'' \221\ The purpose of Rule 10b-10 is not 
to educate investors about the characteristics of different kinds of 
securities in general, but rather, in the context of particular 
transactions, convey information allowing investors to verify the terms 
of their transactions, alert investors to potential conflicts of 
interest with their broker-dealers, deter and prevent deceptive and 
fraudulent acts and practices, and assist customers in evaluating the 
costs and quality of services proved by broker-dealers in connection 
with the execution of their securities transactions.\222\
---------------------------------------------------------------------------

    \221\ See Better Markets Letter, at 4.
    \222\ See Confirmation of Transactions, at 59 FR 59613; 
Securities Confirmations, Exchange Act Release No. 15219 (Oct. 4, 
1978), 43 FR 47495, 47496 (Oct. 16, 1978).
---------------------------------------------------------------------------

    The Commission further notes, as it did in the proposing release, 
that after the deletion of paragraph (a)(8), broker-dealers will not be 
prohibited from continuing to provide the information currently 
required by paragraph (a)(8) on a voluntary basis.\223\ If broker-
dealers believe that continuing to provide such information on 
confirmations would, for example, give investors an incentive to carry 
out additional research on their debt securities, the broker-dealers 
may continue to provide this disclosure at their discretion.\224\ Also, 
in particular circumstances they may believe that a reasonable investor 
likely would consider a security's lack of a credit rating significant.
---------------------------------------------------------------------------

    \223\ See Removal of Certain References to Credit Ratings Under 
the Securities Exchange Act of 1934, 76 FR at 26564. The Commission 
understands that, as a practical matter, broker-dealers will likely 
not reprogram their systems solely to remove the information even 
though the legal obligation to include it has been eliminated. 
Rather, it is anticipated that firms may choose to make the change 
at a later date as part of a larger reprogramming initiative.
    \224\ Based on a limited review of customer confirmations, the 
Commission understands that some broker-dealers currently disclose 
NRSRO ratings for rated securities even though this information is 
not required by paragraph (a)(8).
---------------------------------------------------------------------------

    After consideration of the comments received, the Commission is 
removing paragraph (a)(8) and believes that it is unnecessary to 
replace the paragraph with any other disclosure requirement. Although 
the Commission recognizes the potential benefit of requiring broker-
dealers to remind investors of the varying creditworthiness of debt 
securities, the Commission believes that such a requirement would be 
unnecessary given the other security-specific disclosures currently 
required by Rule 10b-10.\225\ Also, general information about credit 
risk and other risks associated with corporate bonds is widely 
available to investors.\226\
---------------------------------------------------------------------------

    \225\ See information broker-dealers must disclose as specified 
in paragraphs (a)(1) through (a)(7) of Rule 10b-10, as amended.
    \226\ See, e.g., SEC's Office of Investor Education and 
Advocacy's Investor Bulletin, What Are Corporate Bonds? (June 2013), 
available at http://www.sec.gov/investor/alerts/ib_corporatebonds.pdf.
---------------------------------------------------------------------------

III. Paperwork Reduction Act

    Certain provisions of the amendments to the rules and form contain 
``collection of information requirements'' within the meaning of the 
Paperwork Reduction Act of 1995 (``PRA'').\227\ The Commission 
solicited comment on the estimated burden associated with the 
collection of information requirements in the proposed amendments. The 
Commission submitted the proposed collection of information 
requirements to the Office of Management and Budget (``OMB'') for 
review in accordance with 44 U.S.C. 3507 and 5 CFR 1320.11. The titles 
of the affected information collections are Rule 15c3-1 (OMB Control 
Number 3235-0200), Rule 15c3-3 (OMB Control Number 3235-0078), Rule 
17a-4 (OMB Control Number 3235-0279), Rule 10b-10 (OMB Control Number 
3235-0444), and the General Instructions to Form X-17A-5, Part IIB (OMB 
Control Number 3235-0498). An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
requirement unless it displays a currently valid OMB control number.
---------------------------------------------------------------------------

    \227\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

    As discussed above, the Commission received eleven comment letters 
on the proposed amendments. Some of the comments in these letters 
relate indirectly to the PRA and are addressed below. The estimates 
contained in this section do not include any other possible costs or 
economic effects beyond the costs required for PRA purposes.\228\
---------------------------------------------------------------------------

    \228\ See discussion below in Section IV.D.
---------------------------------------------------------------------------

A. Summary of Collection of Information

    As discussed above, the Commission is adopting amendments to Rule 
15c3-1, Appendices A, E, F, and G to Rule 15c3-1, Exhibit A to Rule 
15c3-3, Rule 17a-4, the General Instructions to Form X-17A-5, Part IIB, 
and Rule 10b-10. These amendments are consistent with section 939A of 
the Dodd-Frank Act.
    The amendments to Rule 15c3-1, and Rule 17a-4 establish a new 
standard of creditworthiness that will allow broker-dealers to 
establish their own policies and procedures to determine whether a 
security has only a minimal amount of credit risk. If a broker-dealer 
chooses to establish these policies and procedures, it would create a 
new ``collection of information'' burden for those broker-dealers, as 
explained below. The amendments to Appendices A, E, F, and G to Rule 
15c3-1 and the General Instructions to Form X-17A-5, Part IIB remove 
provisions permitting reliance

[[Page 1537]]

on NRSRO ratings to calculate haircuts and credit risk charges related 
to counterparties. In addition, the amendments to the Customer 
Protection Rule remove one method for verifying the status of a 
registered clearing agency or derivatives clearing organization under 
Note G to Exhibit A. Broker-dealers have to use a new method for 
verifying the status of a registered clearing agency or derivatives 
clearing organization may have to comply with a new ``collection of 
information'' within the meaning of the PRA.
    The Commission does not believe that the amendment to Rule 10b-10, 
which eliminates a requirement that broker-dealers inform customers in 
transaction confirmations for debt securities (other than government 
securities) if a security is unrated by an NRSRO, would change the 
existing paperwork burden for Rule 10b-10.

B. Proposed Use of Information

    The written policies and procedures required by the amendments to 
Rule 15c3-1, and the retention of these policies and procedures 
required by the amendment to Rule 17a-4, will assist Commission and SRO 
examination staff in evaluating whether the broker-dealer has a 
reasonable basis for determining if a security has only a minimal 
amount of credit risk. It also will assist examination staff and the 
broker-dealer in evaluating whether the broker-dealer has followed 
those policies and procedures when acquiring positions in commercial 
paper, nonconvertible debt, and preferred stock. In addition, written 
policies and procedures will provide a broker-dealer's personnel with 
consistent guidance on how to determine if a security has a minimal 
amount of credit risk for the purposes of complying with Rule 15c3-1.
    The amendment to Rule 10b-10 will eliminate a requirement for 
transaction confirmations for debt securities (other than government 
securities) to inform customers if a security is unrated by an NRSRO. 
This amendment will alter neither the general requirement that broker-
dealers generate transaction confirmations and send those confirmations 
to customers, nor the potential use of information contained in 
confirmations by the Commission, SROs, and other securities regulatory 
authorities in the course of examinations, investigations and 
enforcement proceedings.

C. Respondents

    The Commission estimates that the collections of information would 
apply to the number of respondents as indicated in the following 
table.\229\
---------------------------------------------------------------------------

    \229\ See also section IV.B., infra.

------------------------------------------------------------------------
                                                             Number of
                          Rules                           broker-dealers
------------------------------------------------------------------------
Amendments to Rule 15c3-1 (not including appendices) and             434
 Rule 17a-4.............................................
Amendments to Appendices A, E, F, and G to Rule 15c3-1..             115
Amendments to Exhibit A to Rule 15c3-3..................              72
Amendments to the General Instructions to Form X-17A-5,                4
 Part IIB...............................................
Amendments to Rule 10b-10...............................             502
------------------------------------------------------------------------

D. Total Initial and Annual Reporting and Recordkeeping Burden

1. Rule 15c3-1 Appendices A, E, F, and G to Rule 15c3-1, Rule 17a-4, 
and the General Instructions to Form X-17A-5, Part IIB
    The amendments to Rule 15c3-1 and Rule 17a-4 modify broker-dealers' 
existing practices to impose additional voluntary recordkeeping 
burdens. The amendments to Rule 15c3-1 replace NRSRO ratings-based 
criteria for evaluating creditworthiness with an option for a broker-
dealer to apply a new standard based on the broker-dealer's own 
evaluation of creditworthiness. A broker-dealer that chooses not to 
make such an evaluation could instead take the higher haircuts as 
specified in Rule 15c3-1. A broker-dealer that chooses to evaluate the 
creditworthiness of securities will have to establish, document, 
maintain, and enforce policies and procedures that are reasonably 
designed to determine whether a security has a minimal amount of credit 
risk. Broker-dealers will be required to develop (if they have not 
already) criteria for assessing creditworthiness and apply those 
criteria to commercial paper, nonconvertible debt, and preferred stock 
included in their net capital calculations.
    The Commission requested comment on the PRA burden associated with 
its proposed amendments to Rule 15c3-1 and Rule 17a-4. Two commenters 
discussed costs, although the comments did not explicitly address the 
PRA.\230\ One commenter stated that ``[a] significant number of large 
broker-dealers have sophisticated internal credit review functions'' 
but those broker-dealers may not ``have access to internally generated 
analyses of all or nearly all issuers and securities.'' \231\ Both 
commenters were concerned that the costs imposed by the proposed 
amendments could be considerable, particularly for small and medium-
sized broker-dealers.\232\ One commenter noted, however, that ``the 
burden on small and medium-sized broker-dealers would be significantly 
reduced if the proposed amendment were to be interpreted . . . to 
permit policies and procedures that base the credit risk analysis 
solely on a small number of objectively determinable factors.'' \233\ 
The amended rule allows a broker-dealer to establish policies and 
procedures customized to its size and business activities.\234\ For 
example, a smaller broker-dealer may decide to establish procedures 
that use a small number of objective factors or that default to the 
higher haircuts with respect to certain types of securities or money 
market instruments in lieu of establishing policies and procedures to 
address them. Both of these options should minimize the compliance 
burden on the broker-dealer. Furthermore, the Commission believes that 
many of the firms that hold commercial paper, nonconvertible debt 
securities, and preferred stock (or combinations thereof) have 
established policies and procedures for assessing creditworthiness; 
broker-dealers that have not established such policies and procedures 
do not typically hold large portfolios of these types of 
positions.\235\ In addition, the broker-dealer should be able to use 
its policies and procedures to replicate its credit determinations and 
is not required to create and maintain records of those

[[Page 1538]]

determinations. Nonetheless, the Commission believes that those broker-
dealers that already have policies and procedures in place for 
evaluating the overall risk and liquidity levels of proprietary 
securities for the purposes of Rule 15c3-1 may incur additional burdens 
as a result of the amendments. In particular, the policies and 
procedures may need to be modified to address the particular 
requirements of the amendments.
---------------------------------------------------------------------------

    \230\ Bond Dealers Letter; SIFMA Letter.
    \231\ SIFMA Letter, at 11, 18.
    \232\ Bond Dealers Letter, at 2; SIFMA Letter, at 18.
    \233\ SIFMA Letter, at 18.
    \234\ See section II.B.1.a.iii., supra.
    \235\ SIFMA Letter, at 18 (``A number of broker-dealers have 
access to credit analysis functions that could be applied to 
generate internal credit analysis of debt instruments.'').
---------------------------------------------------------------------------

    According to data collected by the Commission, of the approximately 
4,462 broker-dealers registered with the Commission as of year-end 
2012, approximately 434 broker-dealers maintained proprietary positions 
in debt securities and took haircuts on these securities pursuant to 
paragraphs (c)(2)(vi)(E), (c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2) and 
(c)(2)(vi)(H) of Rule 15c3-1.\236\ The Commission estimated in the 
proposing release that, on average, broker-dealers would spend 25 hours 
developing policies and procedures or revising their current policies 
and procedures for evaluating creditworthiness for purposes of the 
amendments to Rule 15c3-1.\237\ The Commission received no comments on 
this estimate. The Commission believes that this estimate is still 
valid, resulting in an aggregate initial burden of 10,850 hours.\238\ 
This estimate is based on the Commission's belief that many of these 
broker-dealers already have their own criteria in place for evaluating 
creditworthiness and, therefore, most broker-dealers will only be 
revising their current policies and procedures. If a broker-dealer does 
not have policies and procedures in place (e.g., a small broker-dealer 
holding only a few debt securities) but determines to establish them 
rather than taking the larger haircut, the Commission believes that 
such a firm will likely establish less complex policies and procedures 
using a small number of objective factors.\239\
---------------------------------------------------------------------------

    \236\ The number of 434 broker-dealers was obtained by reviewing 
broker-dealer Financial and Operational Combined Single (or 
``FOCUS'') Reports for 2012 year-end and then calculating how many 
firms reported holding proprietary debt positions. For FOCUS Part II 
filers, the balances examined were ``Bankers Acceptances'' and 
``Corporate Debt.'' For FOCUS CSE filers, the balances examined 
were: ``Money Market Instruments,'' ``Private Label Mortgage Backed 
Securities,'' ``Other Asset Backed Securities,'' and ``Corporate 
Debt.'' For Part IIA filers, the balance examined was ``Debt 
Securities.'' Broker-dealers that hold preferred stock also may hold 
positions in debt securities. However, because preferred stock is 
not a separate line item on the FOCUS Report, broker-dealers that 
hold only preferred stock and no other debt securities are not 
included in this estimate.
    \237\ Removal of Certain References to Credit Ratings under the 
Securities Exchange Act of 1934, 76 FR at 26568.
    \238\ 434 broker-dealers x 25 hours = 10,850 hours. It should be 
noted that this hour burden is less than the hour burden in the 
proposing release. This decrease is a result of the number of 
broker-dealers that reported holding proprietary debt positions on 
the FOCUS Report. The number decreased from 480 at 2009 year end to 
434 at 2012 year end.
    \239\ See SIFMA Letter, at 18 (``the burden on small and medium-
sized broker-dealers would be significantly reduced if the proposed 
amendment were to be interpreted . . . to permit policies and 
procedures that base the credit risk analysis solely on a small 
number of objectively determinable factors . . .'').
---------------------------------------------------------------------------

    The Commission also estimated in the proposing release that, on 
average, each broker-dealer will spend an additional 10 hours a year 
reviewing and adjusting its own standards for evaluating 
creditworthiness for purposes of the amendments to Rule 15c3-1.\240\ 
The Commission received no comments on this estimate and believes it is 
still valid. As a result, the Commission estimates that a broker-dealer 
will spend approximately twenty-five hours initially and ten hours on 
an annual basis on its policies and procedures. Thus, the industry, as 
a whole, is estimated to spend approximately 10,850 hours initially and 
4,340 hours \241\ annually reviewing and adjusting its standards for 
evaluating creditworthiness for purposes of the amendments to Rule 
15c3-1.\242\
---------------------------------------------------------------------------

    \240\ Removal of Certain References to Credit Ratings under the 
Securities Exchange Act of 1934, 76 FR at 26568. Although the 
Commission has added language to the rule to clarify that a broker-
dealer's policies and procedures must be reasonably designed to 
monitor its creditworthiness determination, the duty to monitor was 
required under the proposed rule and was reflected in the 
corresponding burden estimate. See section II.B.1.a.iii, supra.
    \241\ 434 broker-dealers x 10 hours = 4,340 hours.
    \242\ The Commission estimated in the proposing release that 
firms would use a controller to review these standards, both 
initially and on an annual basis. The Commission received no 
comments on this estimate. Thus, the Commission believes the per-
firm costs of the controller to be approximately $10,475 initially 
and $4,190 on an annual basis, for an aggregate industry cost of 
$4,546,150 initially and $1,818,460 on an annual basis. For purposes 
of this analysis, the Commission is using salary data from the 
Securities Industry and Financial Markets Association (``SIFMA'') 
Report on Management and Professional Earnings in the Securities 
Industry 2012, which provides base salary and bonus information for 
middle management and professional positions within the securities 
industry, as modified by Commission staff to account for an 1800-
hour work-year and multiplied by 5.35 to account for bonuses, firm 
size, employee benefits and overhead. Hereinafter, references to 
data derived from the report as modified in the manner described 
above will be cited as SIFMA Report on Management and Professional 
Earnings in the Securities Industry 2012. The Commission believes 
that the reviews required by the proposed amendments would be 
performed by the controller at an average rate $419 per hour. $419 x 
25 = $10,475 x 434 = $4,546,150; $419 x 10 = $4,190 x 434 = 
$1,818,460.
---------------------------------------------------------------------------

    The Commission received no comments on the estimated burdens 
associated with the record retention requirements arising from the 
proposed amendments to Rule 17a-4. The Commission continues to believe 
that the requirement to retain the policies and procedures for three 
years pursuant to Rule 17a-4 would result in de minimis incremental 
costs beyond those already incurred under Rule 17a-4. The three-year 
preservation requirement in Rule 17a-4 will only be applicable once a 
broker-dealer changes its policies and procedures as the operative 
policies and procedures must be documented and maintained under the 
amendments to Rule 15c3-1. In addition, all broker-dealers are 
currently required to comply with the three-year preservation period in 
Rule 17a-4 for other records and should have procedures in place to 
satisfy such preservation requirements.
    The amendments to the appendices to Rule 15c3-1 include amendments 
to certain recordkeeping and disclosure requirements that are subject 
to the PRA. The amendment to Appendix A to Rule 15c3-1 removes the 
NRSRO reference from the definition of the term major market foreign 
currency. However, the Commission does not intend to change which 
currencies would meet the definition of major market foreign currency 
because they will still have to have a substantial inter-bank foreign 
currency market. In the proposing release the Commission stated that 
there would be a recordkeeping burden if a broker-dealer wanted to 
request that a currency be deemed to meet the definition of major 
market foreign currency, by submitting such a request to the 
Commission. After further review, and based on staff experience with 
paragraph (c)(2)(vi) of Rule 15c3-1, the Commission believes that 
broker-dealers will rarely formally request in writing that a currency 
be added to the list. Thus, the Commission does not believe there is a 
burden associated with this amendment.\243\
---------------------------------------------------------------------------

    \243\ In the proposing release, the Commission estimated that 
submitting a request that a new currency met the definition of 
``major market foreign currency'' would take 10 hours for a total 
burden to the industry of 1,580 hours. See Removal of Certain 
References to Credit Ratings under the Securities Exchange Act of 
1934, 76 FR at 26568.
---------------------------------------------------------------------------

    The amendments to Appendices E and F to Rule 15c3-1 and conforming 
amendments to Appendix G would remove the provisions permitting 
reliance on NRSRO ratings for the purposes of determining counterparty 
risk. As a result of these deletions, an entity that wishes to use the 
approach set forth in these appendices to determine counterparty risks 
would need, as part of its initial application to use the alternative 
approach or in an amendment, to request Commission

[[Page 1539]]

approval to determine credit charges based on internal credit ratings 
and make and keep current a record of the basis for the credit risk 
weight applied to each counterparty.
    The Commission does not believe that the removal of the option 
permitting reliance on NRSRO ratings would affect the small number of 
entities that currently elect to compute their net capital deductions 
pursuant to the alternative methods set forth in Appendices E or F. 
Although the collections of information obligations imposed by the 
amendments are mandatory, applying for approval to use the alternative 
capital calculation is voluntary.\244\ To date, a total of six entities 
are using the methods set forth in Appendix E, while four are using the 
methods set forth in Appendix F. All of the approved firms already use 
internal credit ratings to calculate market and credit risks under the 
alternative net capital calculation methods set forth in the appendices 
or are taking a 100% charge for counterparty risk. No firms are using 
NRSRO ratings to measure counterparty risk.\245\ For each entity that 
already employs its own models to calculate market and credit risk and 
keeps current a record of the basis for the credit risk weight of each 
counterparty, the amendments would not alter the paperwork burden 
currently imposed by Appendices E and F. Firms that have Commission-
approved models to calculate market and credit risk, but have chosen 
not to seek Commission approval to calculate counterparty risk during 
their initial applications, can file an amendment to their applications 
to calculate counterparty risk. Based on the staff's review of how 
firms approved to use Appendices E and F are calculating counterparty 
risk, the staff believes that of the firms that do not have models 
approved to calculate counterparty risk, none would use NRSRO ratings 
to calculate counterparty risk even if it remained an option. Instead, 
these firms would continue to take a 100% charge for counterparty risk 
or would amend their application if charges related to counterparty 
risk increased to the point that the 100% charge was no longer 
economically practical. Any PRA burdens from these amended applications 
are included in the PRA burden associated with Appendix E or Appendix 
F. Thus, the Commission does not believe there are any additional 
burdens associated with this rulemaking.
---------------------------------------------------------------------------

    \244\ See, e.g., Alternative Net Capital Requirements for 
Broker-Dealers That Are Part of Consolidated Supervised Entities, 
Exchange Act Release No. 34-49830 (June 8, 2004), 69 FR 34428 at 
34456 (June 21, 2004).
    \245\ In the proposing release, the Commission stated that all 
firms have models approved to calculate counterparty risk. Although 
the Commission received no comments on this estimate, upon further 
review the staff has determined that although no firm is using NRSRO 
ratings to calculate counterparty risk, not all firms have models 
approved to calculate counterparty risk (i.e., some firms take the 
100% charge).
---------------------------------------------------------------------------

    The staff estimates that three additional firms may apply for 
permission to use Appendix E and one additional firm may apply to use 
Appendix F. However, the Commission believes, and commenters did not 
contest, that there should be no additional paperwork burden on these 
firms based on the amendments. Any firm that applies to use Appendices 
E or F to Rule 15c3-1 must submit its internal models to the Commission 
for approval as part of that process. These models will calculate 
market risk and credit risk, including the counterparty charge, which 
is not a change from the previous approval process for a firm that is 
applying to use Appendix E or Appendix F. Thus, the Commission does not 
believe the amendments to Appendices E and F will alter the existing 
paperwork burden estimates for these collections.
    The instructions to Form X-17A-5, Part IIB currently include a 
summary of the credit risk calculation in paragraph (d) of Rule 15c3-
1f. Paragraph (d) of Rule 15c3-1f is amended to remove that part of the 
credit risk calculation that is summarized in Form X-17A-5, Part IIB. 
Accordingly, the Commission is adopting a conforming amendment to the 
form that would remove the summary of the credit risk calculation. The 
Commission received no comments on its estimate in the proposing 
release that there would be no change in the burden for the collection 
of information related to the instructions to Form X-17A-5, Part IIB in 
the proposing release. The summary in the instructions provides 
additional information for the benefit of the filer and is not related 
to the information reported on the forms. Accordingly, the Commission 
does not believe the amendment would result in a substantive revision 
to these collections of information.
2. Exhibit A to Rule 15c3-3
    The amendment to Note G to Exhibit A to Rule 15c3-3 imposes 
additional recordkeeping burdens on certain broker-dealers that are 
mandatory. Note G allows a broker-dealer to include, as a debit in its 
customer reserve formula, the amount of customer margin related to 
customer positions in security futures products posted to a registered 
clearing or derivatives clearing organization that meets certain 
minimum standards that are indicia of long-term financial strength. 
Prior to this amendment, clearing organizations that maintained the 
highest investment grade rating from an NRSRO qualified under Note 
G.\246\ The amendment removes this NRSRO criterion such that firms 
including the debit in their reserve formula calculations must rely on 
one of the remaining three non-NRSRO criterions, or seek an exemption 
from the Commission. Broker-dealers are expected to ensure that any 
clearing or derivatives clearing organization it posts margin to meets 
one of the criterions under Note G, which results in the creation and 
maintenance of records of those assessments. The Commission requested 
comment on all aspects of the burdens associated with Note G to Exhibit 
A to Rule 15c3-3 and received no comments. The Commission estimates 
that approximately 72 firms would be required to comply with the 
provisions of Note G as amended.\247\ In the final release that added 
Note G to Exhibit A to Rule 15c3-3,\248\ the Commission estimated that 
firms would each spend approximately 0.25 hours to verify that the 
clearing or derivatives clearing organizations they post customer 
margin to satisfy the conditions of Note G. In the proposing release 
for these rule amendments, the Commission again estimated that firms 
would spend approximately 0.25 hours to verify that a clearing or 
derivatives clearing organization satisfies the conditions of Note G. 
The Commission

[[Page 1540]]

received no comments on this estimate and believes it is still valid. 
The Commission therefore estimates that broker-dealers that trade in 
single stock futures will spend a total of approximately 18 hours per 
year, initially and on an ongoing basis, to verify the status of a 
registered clearing or derivatives clearing organization imposed by 
this amendment.\249\
---------------------------------------------------------------------------

    \246\ A broker-dealer may also include customer margin related 
to customers' positions in security futures products posted to a 
registered clearing or derivatives clearing organization: (1) That 
maintains security deposits from clearing members in connection with 
regulated options or futures transactions and assessment power over 
member firms that equal a combined total of at least $2 billion, at 
least $500 million of which must be in the form of security 
deposits; (2) that maintains at least $3 billion in margin deposits; 
or (3) which does not meet any of the other criteria but which the 
Commission has agreed, upon a written request from the broker-
dealer, that the broker-dealer may utilize. 17 CFR 240.15c3-3a, Note 
G, (b)(1)(ii)-(iv).
    \247\ The number 72 comes from reviewing the members of the OCC 
listed in the member directory on the OCC's Web site, available at 
http://www.optionsclearing.com/membership/member-information/. Of 
the list of 228 members, the Commission looked only at those who 
trade in single stock futures. Of the list of members that trade in 
single stock futures, the Commission deleted any members who had the 
exact same firm name but different firm numbers. This methodology is 
consistent with the methodology used in the proposing release. 
Removal of Certain References to Credit Ratings Under the Securities 
Exchange Act of 1934, 76 FR at 26570 n.115. The Commission received 
no comments on this estimate.
    \248\ See Reserve Requirements for Margin Related to Security 
Futures Products, Exchange Act Release No. 34-50295 (Aug. 31, 2004), 
69 FR 54182, 54188 (Sep. 7, 2004).
    \249\ 72 broker-dealers x .25 hours = 18 hours.
---------------------------------------------------------------------------

    The Commission estimated in the proposing release that firms would 
spend one hour changing their methods of determining whether a clearing 
or derivatives clearing organization meets the remaining four 
requirements of Note G. The Commission received no comments on this 
estimate and believes it is still accurate. The result is an aggregate, 
one-time initial burden of 72 hours.\250\
---------------------------------------------------------------------------

    \250\ 72 broker-dealers x 1 hour = 72 hours. The Commission 
notes that this hour burden is less than the hour burden in the 
proposing release. This decrease is a result of the number of OCC 
member firms that trade in single stock futures decreasing from 90 
to 72. The Commission estimated in the proposing release that firms 
will use a senior operations manager to review these standards. The 
Commission received no comments on this estimate and believes that 
it is still accurate. The Commission therefore estimates that the 
one-time costs of a senior operations manager to be $341 per hour, 
resulting in an aggregate, one-time cost to the industry of $24,552. 
72 broker-dealers x $341/hour x 1 hour = $24,552. SIFMA Report on 
Management and Professional Earnings in the Securities Industry 
2012.
---------------------------------------------------------------------------

3. Rule 10b-10
    In the proposing release, the Commission stated that the proposed 
amendment to Rule 10b-10 was not expected to result in any significant 
change to the cost of providing confirmations to customers in 
connection with those transactions covered by paragraph (a)(8) of the 
rule.\251\ The Commission did not receive any comments that addressed 
the Rule 10b-10 amendment's potential effects on the burden associated 
with generating and sending confirmations. The Commission continues to 
believe that broker-dealers need not incur any new costs if they choose 
not to input information that a debt security is unrated into their 
existing confirmation systems. Accordingly, the Commission continues to 
believe that the Rule 10b-10 amendment will not result in any 
significant change to the recordkeeping or reporting burdens of 
generating and sending confirmations, and retains this conclusion as 
originally proposed.
---------------------------------------------------------------------------

    \251\ See Removal of Certain References to Credit Ratings Under 
the Securities Exchange Act of 1934, 76 FR at 26575.
---------------------------------------------------------------------------

IV. Economic Analysis

A. Overview

    The Commission is sensitive to the costs and benefits of its rules. 
When engaging in rulemaking that requires the Commission to consider or 
determine whether an action is necessary or appropriate in the public 
interest, section 3(f) of the Exchange Act requires that the Commission 
consider, in addition to the protection of investors, whether the 
action will promote efficiency, competition, and capital 
formation.\252\ In addition, section 23(a)(2) of the Exchange Act 
requires that the Commission consider the effects on competition of any 
rules the Commission adopts under the Exchange Act, and prohibits the 
Commission from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act.\253\
---------------------------------------------------------------------------

    \252\ 15 U.S.C. 78c(f).
    \253\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    In the proposing release, the Commission solicited comment on the 
costs and benefits of the proposed amendments, including whether 
estimates of the costs and benefits were accurate and 
comprehensive.\254\ The Commission further encouraged commenters to 
provide specific data and analysis in support of their views.\255\ The 
Commission also requested comment on whether the proposed amendments 
would place a burden on competition, and promote efficiency, 
competition, and capital formation.\256\
---------------------------------------------------------------------------

    \254\ An economic analysis was included in the proposing 
release. See Removal of Certain References to Credit Ratings Under 
the Securities Exchange Act of 1934, 76 FR at 26571-26574.
    \255\ See Removal of Certain References to Credit Ratings Under 
the Securities Exchange Act of 1934, 76 FR at 26574.
    \256\ Id.
---------------------------------------------------------------------------

    The Commission received two comment letters addressing the 
Commission's estimates of the costs associated with the proposed 
amendments.\257\ Generally, these commenters expressed concerns that 
the potential costs associated with the proposed rules could be 
considerable.\258\ While commenters stated that the costs may be high, 
they did not provide quantified estimates of the costs--this reflects 
the fact that many of the costs and benefits of today's amendments are 
difficult to quantify with any degree of certainty, especially as 
practices at broker-dealers are expected to evolve and appropriately 
adapt to market developments. Moreover, this difficulty is aggravated 
by the fact that limited public data exists that is related to a 
broker-dealer's net capital calculation that could assist in 
quantifying certain costs. Consequently, the Commission has relied on 
qualitative assessments of the likely costs and benefits in its 
analysis. As discussed throughout this release, the Commission has 
modified the amendments being adopted today in a way that it believes 
will help to minimize costs to broker-dealers. A number of costs and 
benefits that are related to the rules being adopted today are 
discussed below.
---------------------------------------------------------------------------

    \257\ See SIFMA Letter; Bond Dealers Letter.
    \258\ See Bond Dealers Letter, at 2 (``the cost to comply may be 
prohibitively high for the smaller or middle-market broker-
dealers''); SIFMA Letter, at 18 (``we believe the cost and 
complexity of developing a credit evaluation infrastructure covering 
many issuers and securities may be beyond the means of many broker-
dealers'').
---------------------------------------------------------------------------

    As discussed above, the amendments to Rule 15c3-1, Appendices A, E, 
F, and G to Rule 15c3-1, Exhibit A to Rule 15c3-3, Rule 17a-4, the 
General Instructions to Form X-17A-5, Part IIB, and Rule 10b-10 
implement section 939A of the Dodd-Frank Act by eliminating the 
reference to and requirement for the use of NRSRO ratings in these 
rules. The Commission recognizes that there are additional costs 
associated with adopting the amendments that are separate from the 
costs associated with the hour and cost burdens discussed in the PRA. 
The discussion below focuses on the Commission's reasons for adopting 
these amendments, the affected parties, the impact on efficiency, 
competition, and capital formation, and the costs and benefits of the 
amendments as compared to the baseline, described below, and to 
alternative courses of action.

B. Economic Baseline

    The regulatory changes adopted today amend requirements that apply 
to broker-dealers registered with the Commission. However, security 
issuers, NRSROs, non-NRSRO credit rating agencies, and other providers 
of credit risk analysis as well as a broker-dealer's customers and 
counterparties could all be affected by the amendments. The discussion 
below characterizes the economic baseline against which the costs and 
benefits, as well as the impact on efficiency, competition, and capital 
formation, of today's amendments are measured. It includes the 
approximate numbers of broker-dealers that would be directly affected 
by today's amendments and a description of the relevant features of the 
economic and regulatory environment in which the various impacted 
parties operate. The economic baseline being used for this analysis is 
the economic and regulatory framework

[[Page 1541]]

in existence just prior to the adoption of today's amendments.
    The regulations that are affected by today's amendments include 
Rule 15c3-1, which provided prior to today's amendments, among other 
things, that a broker-dealer could apply a lesser capital charge (e.g., 
less than the 15% catchall charge) for commercial paper, nonconvertible 
debt, and preferred stock if the instrument is rated in the higher 
rating categories by two NRSROs; the Appendices to Rule 15c3-1, which 
rely on credit ratings for calculating haircuts or credit risk charges 
related to counterparties; Exhibit A to Rule 15c3-3, which uses NRSRO 
ratings to determine whether a broker-dealer can include customer 
margin for transactions in securities futures products as a debit in 
its reserve formula; and Rule 10b-10, which requires disclosing in 
customer confirmations of securities transactions if non-government 
debt securities have not been rated by an NRSRO. The rule amendments 
would help to reduce any perceived Commission endorsement of NRSROs and 
NRSRO ratings and reduce reliance on credit ratings. The relevant rule 
amendments are described in detail below.
    The broker-dealers registered with the Commission vary 
significantly in terms of their size, business activities, and the 
complexity of their operations. For example, carrying broker-dealers 
hold customer securities and funds.\259\ Clearing broker-dealers clear 
transactions as members of securities exchanges, the Depository Trust & 
Clearing Corporation, and the OCC.\260\ Many clearing broker-dealers 
are carrying broker-dealers, but some clearing broker-dealers clear 
only their own transactions and do not hold customer securities and 
cash.
---------------------------------------------------------------------------

    \259\ Rule 15c3-1 specifies that a broker-dealer shall be deemed 
to carry customer or broker-dealer accounts ``if, in connection with 
its activities as a broker or dealer, it receives checks, drafts, or 
other evidences of indebtedness made payable to itself or persons 
other than the requisite registered broker or dealer carrying the 
account of a customer, escrow agent, issuer, underwriter, sponsor, 
or other distributor of securities'' or ``if it does not promptly 
forward or promptly deliver all of the securities of customers or of 
other brokers or dealers received by the firm in connection with its 
activities as a broker or dealer.'' 17 CFR 240.15c3-1(a)(2)(i); see 
also the description of Rule 15c3-1 in section II.B.1.a.i., supra. 
Further, Rule 15c3-3, defines the term securities carried for the 
account of a customer to mean ``securities received by or on behalf 
of a broker or dealer for the account of any customer and securities 
carried long by a broker or dealer for the account of any 
customer,'' as well as securities sold to, or bought for, a customer 
by a broker-dealer. 17 CFR 240.15c3-3(a)(2); see also the 
description of the Customer Protection Rule in section II.B.1.f., 
supra.
    \260\ See Definitions of Terms and Exemptions Relating to the 
``Broker'' Exceptions for Banks and Exemptions for Banks Under 
Section 3(a)(5) of the Securities Exchange Act of 1934, Exchange Act 
Release No. 34-56501 (Sep. 24, 2007), 72 FR 56514 (Oct. 3, 2007), at 
n.269.
---------------------------------------------------------------------------

    A broker-dealer that claims an exemption from Rule 15c3-3 is 
generally referred to as ``non-carrying broker-dealer.'' Non-carrying 
broker-dealers include ``introducing brokers.'' \261\ These non-
carrying broker-dealers typically accept customer orders and introduce 
their customers to a carrying broker-dealer that will hold the 
customers' securities and cash along with the securities and cash of 
customers of other introducing broker-dealers and those of direct 
customers of the carrying broker-dealer. The carrying broker-dealer 
generally receives and executes orders of the introducing broker-
dealer's customers.\262\ Carrying broker-dealers generally also prepare 
trade confirmations, settle trades, and organize book entries of the 
securities.\263\ Introducing broker-dealers also may use carrying 
broker-dealers to clear the firm's proprietary trades and carry the 
firm's securities. Another group of non-carrying broker-dealers effects 
transactions in securities such as mutual funds on a subscription-way 
basis.\264\ Generally, customers purchase the securities by providing 
the funds directly to the issuer. Finally, some non-carrying broker-
dealers act as finders by referring prospective purchasers of 
securities to issuers.\265\
---------------------------------------------------------------------------

    \261\ See Net Capital Rule, Exchange Act Release No. 34-31511 
(Nov. 24, 1992), 57 FR 56973 (Dec. 2, 1992) (describing the role of 
introducing broker-dealers).
    \262\ Id.
    \263\ See, e.g., FINRA Rule 4311 (Carrying Agreements). This 
FINRA rule governs the requirements applicable to FINRA members when 
entering into agreements for the carrying of any customer accounts 
in which securities transactions can be effected. Historically, the 
purpose of this rule has been to require that certain functions and 
responsibilities are clearly allocated to either the introducing or 
carrying firm, consistent with the requirements of the SRO's and 
Commission's financial responsibility rules and other rules and 
regulations, as applicable. See also Notice of Filing of Amendment 
No. 1 and Order Granting Accelerated Approval of a Proposed Rule 
Change Adopting, as Modified by Amendment No. 1, Rules Governing 
Guarantees, Carrying Agreements, Security Counts and Supervision of 
General Ledger Accounts in the Consolidated FINRA Rulebook, Exchange 
Act Release 34-63999 (Mar. 7, 2011), 76 FR 12380 (Mar. 7, 2011).
    \264\ See Books and Records Requirements for Brokers and Dealers 
Under the Securities Exchange Act of 1934, Exchange Act Release No. 
34-44992 (Oct. 26, 2001), 66 FR 55818 (Nov. 2, 2001) (``[T]he 
Commission recognizes that for some types of transactions, such as 
purchases of mutual funds or variable annuities, the customer may 
simply fill out an application or a subscription agreement that the 
broker-dealer then forwards directly to the issuer.'').
    \265\ See American Bar Association, Report and Recommendations 
of the Task Force on Private Placement Broker-Dealers, 23-24 (2005); 
see also Net Capital Rule, 57 FR 56973.
---------------------------------------------------------------------------

    The broker-dealer industry is the primary industry affected by the 
rule amendments, although the amendments impose different requirements 
on different types of broker-dealers. For example, only those broker-
dealers that hold proprietary positions in commercial paper, 
nonconvertible debt, and preferred stock will be affected by the 
amendments to Rules 15c3-1 and 17a-4, only those broker-dealers that 
trade in foreign currency options will be affected by the amendments to 
Appendix A to Rule 15c3-1, and only those broker-dealers that clear and 
carry positions in security futures products for customers will be 
affected by the amendment to Exhibit A to Rule 15c3-3. The amendments 
to Appendices E and F to Rule 15c3-1 and the conforming amendments to 
Appendix G to Rule 15c3-1 and the General Instructions to Form X-17A-5, 
Part IIB will affect only ANC broker-dealers and OTC derivatives 
dealers. The amendment to Rule 10b-10 eliminates a disclosure 
requirement for broker-dealers that currently produce transaction 
confirmations for debt securities other than government securities.
    To establish a baseline for competition among broker-dealers, the 
Commission looks at the status of the broker-dealer industry detailed 
below. In terms of size, the following tables illustrate the variance 
among broker-dealers with respect to total capital. The information in 
the tables is based on FOCUS Report data for calendar year 2012.

             Broker-Dealer Capital at Calendar Year-End 2012
                              [$ Millions]
------------------------------------------------------------------------
                                             Number of     Sum of total
                 Capital                       firms          capital
------------------------------------------------------------------------
Less than $500,000......................           2,347            $345

[[Page 1542]]

 
Greater than or equal to 500,000 and               1,273           2,207
 less than 5 million....................
Greater than or equal to 5 million and               569           9,712
 less than 50 million...................
Greater than or equal to 50 million and               83           5,632
 less than 100 million..................
Greater than or equal to 100 million and             121          25,465
 less than 500 million..................
Greater than or equal to 500 million and              27          19,688
 less than 1 billion....................
Greater than or equal to 1 billion and                26          56,034
 less than 5 billion....................
Greater than or equal to 5 billion and                 7          47,922
 less than 10 billion...................
Greater than or equal to 10 billion.....               9         185,022
                                         -------------------------------
    Total...............................           4,462         352,028
------------------------------------------------------------------------

    According to FOCUS Report data, as of December 31, 2012, there were 
approximately 4,462 broker-dealers registered with the Commission. Nine 
broker-dealers account for more than half of all capital held by 
broker-dealers. Of the 4,462 registered broker-dealers, 434 firms 
reported holding proprietary debt positions on their FOCUS 
Reports.\266\ The Commission has also estimated that there are 101 
broker-dealers that trade foreign currency options and are, therefore, 
subject to Appendix A to Rule 15c3-1.\267\ Furthermore, there are six 
ANC broker-dealers (i.e., firms that operate under Appendix E to Rule 
15c3-1) and four OTC derivatives dealers (i.e., firms that operate 
under Appendix F to Rule 15c3-1). In addition, the staff estimates 
that, for reasons unrelated to the rule amendments being adopted today, 
an additional three firms will apply to operate as ANC broker-dealers 
and one additional firm will apply to operate as an OTC derivatives 
dealer. The Commission also has estimated that there are 72 firms 
subject to Note G to Exhibit A to Rule 15c3-3.\268\
---------------------------------------------------------------------------

    \266\ See section III.C., supra.
    \267\ To arrive at this number, the Commission reviewed the 
members of the OCC listed in the member directory on the OCC's Web 
site available at http://www.optionsclearing.com/membership/member-information/. Of the list of 228 members, the Commission looked only 
at those that trade in index options because members approved to 
trade index options are also approved to trade such foreign currency 
options. Of the list of members that trade in index options, the 
Commission deleted any members that had the exact same firm name but 
different firm numbers. The Commission received no comments on its 
estimate of the number of broker-dealers that would be affected by 
the amendment to Appendix A to Rule 15c3-1 in the proposing release. 
See also Removal of Certain References to Credit Ratings under the 
Securities Exchange Act of 1934, 76 FR at 26568.
    \268\ See section III.C., supra.
---------------------------------------------------------------------------

    The Commission also believes other parties could be affected by 
today's amendments. Under the economic baseline, issuers of securities 
who obtain favorable ratings from two or more NRSROs enjoy the benefit 
of greater access to the capital markets because such securities are--
holding other things constant--more attractive to broker-dealers who 
can take lower haircuts on such securities for the purposes of 
compliance with Rule 15c3-1. While the Commission does not intend the 
amendments to Rule 15c3-1 to alter the scope of securities and money 
market instruments that qualify for the lower haircuts, eliminating 
preferential regulatory treatment of NRSRO-rated securities could 
affect security issuers by altering the portfolio preferences of 
broker-dealers if, for example, broker-dealers establish policies and 
procedures for assessing creditworthiness that produce more 
conservative results than the NRSRO credit rating standard. These 
conservative results could cause broker-dealers to avoid holding 
positions that they would have held under the NRSRO credit rating 
standard. Alternatively, if the policies and procedures produce less 
conservative results, the amendments could alter the risk of broker-
dealers' portfolios by causing them to hold positions that they would 
not have held when applying the NRSRO credit rating standard. Altering 
the risk of broker-dealers' portfolios could affect broker-dealers' 
customers, counterparties, and investors, all of whom are protected by 
Rule 15c3-1.
    Finally, today's amendments could have a significant effect on the 
credit ratings industry. Currently there are ten NRSROs with the three 
largest accounting for the majority of all credit ratings.\269\ The 
favorable regulatory treatment of NRSRO-rated securities increases 
demand for securities that have been favorably rated by at least two 
NRSROs. Eliminating this favorable treatment may alter incentives for 
broker-dealers to hold NRSRO-rated securities and may increase a 
broker-dealer's use of alternative providers of credit risk analysis, 
which could increase competition in the credit ratings industry.
---------------------------------------------------------------------------

    \269\ See Commission, Annual Report on Nationally Recognized 
Statistical Rating Organizations (December 2012) (estimating that as 
of December 2011, the three largest NRSROs accounted for 
approximately 96% of all outstanding credit ratings); Commission, 
Report to Congress on Assigned Credit Ratings (December 2012) 
(estimating that as of December 2011, the three largest credit 
rating agencies accounted for approximately 91% of structured 
product ratings).
---------------------------------------------------------------------------

1. Overview of Rule 15c3-1, Appendices A, E, F, and G to Rule 15c3-1, 
Exhibit A to Rule 15c3-3, the General Instructions to Form X-17A-5, 
Part IIB, and Rule 10b-10 Prior to Today's Amendments
a. Rule 15c3-1
    As discussed above, Rule 15c3-1 prescribes minimum regulatory 
capital requirements for broker-dealers.\270\ Rule 15c3-1 prescribes a 
``net liquid assets test'' designed to require a broker-dealer to 
maintain at all times more than one dollar of highly liquid assets for 
each dollar of liabilities (e.g., money owed to customers and 
counterparties), excluding liabilities subordinated by contract to all 
other creditors. Under the economic baseline, Rule 15c3-1 prescribed a 
lower haircut to certain types of debt instruments held by a broker-
dealer if the securities were rated in higher rating categories by at 
least two NRSROs, since those securities typically are less volatile in 
price than securities that are rated in the lower categories or are 
unrated. Specifically, to receive the benefit of a reduced haircut on 
commercial paper, the commercial paper had to be rated in one of the 
three highest rating categories by at least two NRSROs; \271\ to 
receive the benefit of a reduced haircut on a nonconvertible debt 
security and preferred stock, the security had to be

[[Page 1543]]

rated in one of the four highest rating categories by at least two 
NRSROs.\272\ If securities were not eligible for the reduced haircut, 
they were subject to a greater haircut (e.g., 15%), provided they had a 
ready market. The 15% haircut is derived from the catchall haircut 
amount that applies to a security not specifically identified in Rule 
15c3-1 as having an asset-class specific haircut, provided the security 
is otherwise deemed to have a ready market, among other requirements. 
Securities without a ready market are subject to a 100% haircut.
---------------------------------------------------------------------------

    \270\ See 17 CFR 240.15c3-1; see also discussion in section 
II.B.1.a.i., supra.
    \271\ 17 CFR 240.15c3-1(c)(2)(vi)(E).
    \272\ 17 CFR 240.15c3-1(c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2) and 
(c)(2)(vi)(H).
---------------------------------------------------------------------------

b. Appendix A to Rule 15c3-1
    Appendix A to Rule 15c3-1 permits broker-dealers to employ a 
standardized theoretical option pricing model to determine a potential 
loss for a portfolio of listed options positions and related positions 
to compute a single haircut for the group of positions.\273\ Under 
Appendix A, a broker-dealer groups the options and related positions in 
a portfolio and stresses the current market price for each position at 
ten equidistant points along a range of positive and negative potential 
future market movements, using an approved theoretical option pricing 
model that satisfies certain conditions specified in the rule.\274\ 
Positions that have more potential price volatility must be stressed 
across a wider range of positive and negative potential future market 
movements than positions with lower price volatility.\275\ For example, 
a broker-dealer other than a non-clearing option specialist or market 
maker must employ a range of potential future market movements for 
major market foreign currencies of () 6%, whereas the range 
for all other foreign currencies is () 20%.\276\ Thus, 
major market foreign currency options receive more favorable treatment 
than options on all other currencies when using theoretical option 
pricing models to compute net capital deductions.\277\ Under the 
economic baseline, the rule defined the term major market foreign 
currency to mean ``the currency of a sovereign nation whose short term 
debt is rated in one of the two highest categories by at least two 
nationally recognized statistical rating organizations and for which 
there is a substantial inter-bank forward currency market.''
---------------------------------------------------------------------------

    \273\ See 17 CFR 240.15c3-1a(b)(1); see also discussion in 
section II.B.1.b.i., supra.
    \274\ See 17 CFR 240.15c3-1a(b)(1).
    \275\ See 17 CFR 240.15c3-1a(b)(1)(iii).
    \276\ See 17 CFR 240.15c3-1a(b)(1)(iii)(B) through (C).
    \277\ See 17 CFR 240.15c3-1a(b)(1)(iii)(B) through (C) and 
(b)(1)(iv)(A).
---------------------------------------------------------------------------

c. Appendix E to Rule 15c3-1
    Under Appendix E to Rule 15c3-1, ANC broker-dealers are permitted 
to add back to net worth uncollateralized receivables from 
counterparties arising from OTC derivatives transactions (i.e., they 
can add back the amount of the uncollateralized current exposure).\278\ 
Instead of the 100% deduction that applies to most unsecured 
receivables under Rule 15c3-1, ANC broker-dealers are permitted to take 
a credit risk charge based on the uncollateralized credit exposure to 
the counterparty.\279\ The credit risk charge is derived, in part, by 
using an applicable credit risk weight factor.\280\ Appendix E to Rule 
15c3-1 prescribes three standardized credit risk weight factors (20%, 
50%, and 150%) and, as an alternative, permits an ANC broker-dealer 
with Commission approval to use internal methodologies to determine 
appropriate credit risk weights to apply to counterparties.\281\ Under 
the economic baseline, ANC broker-dealers were permitted to use NRSRO 
credit ratings or internally derived credit ratings to determine the 
appropriate credit risk weight factor.
---------------------------------------------------------------------------

    \278\ See 17 CFR 240.15c3-1e(c); see also discussion in section 
II.B.1.c.i., supra.
    \279\ See 17 CFR 240.15c3-1e(c); 17 CFR 240.15c3-1(a)(7).
    \280\ See 17 CFR 240.15c3-1e(c)(1)(ii).
    \281\ See 17 CFR 240.15c3-1e(c)(4)(vi).
---------------------------------------------------------------------------

d. Appendix F to Rule 15c3-1 and Form X-17A-5, Part IIB
    Under Appendix F to Rule 15c3-1, OTC derivatives dealers are 
required to deduct from their net capital credit risk charges that take 
counterparty risk into consideration.\282\ As part of this deduction, 
the OTC derivatives dealer must apply a counterparty risk weight factor 
of either 20%, 50%, or 100%.\283\ In addition, OTC derivatives dealers 
must take a concentration charge where the net replacement value in the 
account of any one counterparty exceeds 25% of the OTC derivatives 
dealer's tentative net capital.\284\ Under the economic baseline, the 
counterparty risk weight factor (i.e., 20%, 50%, or 100%) was 
determined using either NRSRO credit ratings or the firm's internal 
credit ratings.\285\ The concentration charge also was determined using 
either NRSRO credit ratings or the firm's internal credit ratings.
---------------------------------------------------------------------------

    \282\ See 17 CFR 240.15c3-1f(d); see also discussion in section 
II.B.1.d.i., supra.
    \283\ See 17 CFR 240.15c3-1f(d)(2).
    \284\ See 17 CFR 240.15c3-1f(d)(3).
    \285\ See 17 CFR 240.15c3-1f(d)(2) and (4); see also discussion 
in section II.B.1.d.i., supra.
---------------------------------------------------------------------------

e. Appendix G to Rule 15c3-1
    Appendix G to Rule 15c3-1 provides that broker-dealers may use the 
ANC computation only if their ultimate holding companies agree to 
provide the Commission with additional information about the financial 
condition of the holding company and its affiliates.\286\ Paragraph (a) 
of Appendix G sets forth a methodology for computing allowable capital 
and allowances for market and credit risk at the consolidated holding 
company level. Under the economic baseline, one aspect of calculating 
credit risk in Appendix G provided that those firms must use credit 
ratings in accordance with the applicable provisions of Appendix E.
---------------------------------------------------------------------------

    \286\ 17 CFR 240.15c3-1g.
---------------------------------------------------------------------------

f. Exhibit A to Rule 15c3-3
    Rule 15c3-3 is designed to protect customer funds and securities 
held by broker-dealers.\287\ In general, Rule 15c3-3 requires a broker-
dealer to take two steps. First, a broker-dealer must maintain 
possession or control of all fully paid and excess margin securities of 
its customers. In this regard, a broker-dealer must make a daily 
determination in order to comply with this aspect of the rule. Second, 
the broker-dealer must make a periodic computation to determine how 
much money it is holding that is either customer money or money 
obtained from the use of customer securities (``credits''). From that 
figure, the broker-dealer subtracts the amount of money that it is owed 
by customers relating to customer transactions (``debits''). If the 
credits exceed the debits after this ``reserve formula'' computation, 
the broker-dealer must deposit the excess in a customer reserve 
account. If the debits exceed credits, no deposit is necessary. Funds 
deposited in a customer reserve account cannot be withdrawn until the 
broker-dealer completes another computation that shows that the firm 
has on deposit more funds than the reserve formula requires.
---------------------------------------------------------------------------

    \287\ See 17 CFR 240.15c3-3; see also discussion in section 
II.B.1.f., supra.
---------------------------------------------------------------------------

    Exhibit A to Rule 15c3-3 prescribes the formula that a broker-
dealer must use to determine its reserve requirement. Under the 
economic baseline, Note G to Exhibit A provided that a broker-dealer 
could include margin required for customer transactions in security 
futures products as a debit in its reserve formula computation if that 
margin is on deposit

[[Page 1544]]

at a clearing agency or derivatives clearing organization that: (1) 
Maintains the highest investment-grade rating from an NRSRO; (2) 
maintains security deposits from clearing members in connection with 
regulated options or futures transactions and assessment power over 
member firms that equal a combined total of at least $2 billion, at 
least $500 million of which must be in the form of security deposits; 
(3) maintains at least $3 billion in margin deposits; or (4) obtains an 
exemption from the Commission.\288\
---------------------------------------------------------------------------

    \288\ 17 CFR 240.15c3-3a, Note G.
---------------------------------------------------------------------------

g. Rule 10b-10
    Rule 10b-10, the Commission's customer confirmation rule, generally 
requires broker-dealers effecting transactions for customers in 
securities, other than U.S. savings bonds or municipal securities, to 
provide those customers with a written notification, at or before 
completion of the securities transaction, disclosing certain 
information about the terms of the transaction.\289\ This required 
disclosure includes the date, time, identity, and number of securities 
bought or sold; the capacity in which the broker-dealer acted (e.g., as 
agent or principal); yields on debt securities; and, in some 
circumstances, the amount of compensation the broker-dealer will 
receive from the customer and any other parties. By requiring these 
disclosures, the rule serves a basic customer protection function by 
conveying information that: (1) Allows customers to verify the terms of 
their transactions; (2) alerts customers to potential conflicts of 
interest; (3) acts as a safeguard against fraud; and (4) allows 
customers a means of evaluating the costs of their transactions and the 
quality of the broker-dealer's execution. Under the economic baseline, 
Rule 10b-10 required a broker-dealer to inform the customer in the 
confirmation if a debt security, other than a government security, is 
unrated by an NRSRO.
---------------------------------------------------------------------------

    \289\ 17 CFR 240.10b-10; see also discussion in section 
II.B.2.a., supra.
---------------------------------------------------------------------------

C. Effect on Efficiency, Competition, and Capital Formation

    The amendments adopted today have the potential to affect 
competition, efficiency, and capital formation. This section discusses 
what the Commission believes to be potential effects across three 
groups of market participants: (1) Broker-dealers, (2) security 
issuers, and (3) issuers of credit ratings.\290\
---------------------------------------------------------------------------

    \290\ Although this section IV.C. of the release focuses on 
these three groups of market participants whose businesses may be 
more directly impacted by the final rules, the impacts on other 
participants are discussed elsewhere in the release. See, e.g., 
section IV.D., infra.
---------------------------------------------------------------------------

1. Effects on the Broker-Dealer Industry
    Under the economic baseline, all broker-dealers employ a uniform 
standard--an NRSRO credit rating--to determine whether a position in 
commercial paper, nonconvertible debt, or preferred stock is entitled 
to a lower haircut for purposes of Rule 15c3-1. Today's amendments 
eliminate this uniform standard and require that broker-dealers develop 
internal policies and procedures for determining whether these types of 
positions have only a minimal amount of credit risk and, therefore, are 
entitled to the lower haircut. As one commenter noted, ``the cost and 
complexity of developing a credit evaluation infrastructure covering 
many issuers and securities may be beyond the means of many broker-
dealers.'' \291\ Also, as the FOCUS Report data for calendar year 2012 
makes clear, the majority of broker-dealers are small (with capital 
less than $500,000).\292\ As noted by several commenters, any new 
regulatory requirement with significant fixed costs has the potential 
to disadvantage small and medium-sized broker-dealers.\293\ Such 
disadvantages could result in increased concentration in the broker-
dealer industry.
---------------------------------------------------------------------------

    \291\ SIFMA Letter, at 18.
    \292\ See section IV.B., supra.
    \293\ SIFMA Letter, at 11; Bond Dealers Letter, at 2.
---------------------------------------------------------------------------

    However, the Commission does not intend or expect broker-dealers to 
individually duplicate the function of credit rating agencies. To do so 
would require broker-dealers, particularly small and medium sized 
broker-dealers, to incur significant expense, potentially reducing 
competition in the broker-dealer industry and harming economic 
efficiency through duplication of effort.\294\ Instead, the Commission 
expects that today's amendments will create opportunities for NRSROs, 
non-NRSRO credit rating agencies, and other providers of credit risk 
analysis to offer products and services that facilitate compliance with 
today's amendments. Although broker-dealers with large portfolios of 
debt securities and well-developed credit analysis capabilities may 
prefer to use an internal credit risk function for assessing 
creditworthiness, it will not be cost effective or practical for other 
broker-dealers to support an internal credit risk department comprised 
of analysts who perform internal credit assessments. These broker-
dealers may instead establish a process for assessing creditworthiness 
that relies more on external factors, such as external credit 
assessments and market data, and that process will be evaluated for 
reasonableness in light of the firm's circumstances (e.g., the size of 
the broker-dealer and the types and sizes of the positions typically 
held by the broker-dealer). The Commission also anticipates that some 
broker-dealers, particularly those with minimal proprietary positions 
in commercial paper, nonconvertible debt, and preferred stock, will 
choose to devote no resources toward credit risk analysis and to 
maintenance of policies and procedures, and instead will apply a 
greater haircut to their proprietary positions as permitted by the 
rule.\295\
---------------------------------------------------------------------------

    \294\ See generally SIFMA Letter, at 11.
    \295\ Although this approach would decrease the firm's direct 
cost of complying with the rule amendments, it would increase the 
amount of capital the broker-dealer is required to maintain to 
comply with Rule 15c3-1, increasing the indirect compliance costs.
---------------------------------------------------------------------------

    Based on these considerations, the Commission does not believe that 
the burden of complying with today's amendments will result in 
significant changes to the competitive structure of the broker-dealer 
industry in general, nor to the small subset of broker-dealers with 
positions in commercial paper, nonconvertible debt, and preferred stock 
that are directly affected by today's amendments.
    In addition to the aforementioned potential direct effects on 
efficiency and competition, today's amendments may affect economic 
efficiency indirectly by altering the net capital levels in the broker-
dealer industry. A broker-dealer that elects to take a higher haircut 
rather than make a credit risk determination or one that overestimates 
the credit risk in its position will reserve more net capital than is 
required by Rule 15c3-1. This could affect the broker-dealer's ability 
to hold (or add to) its positions. Conversely, some broker-dealers may 
underestimate the credit risk of their positions. Indeed, broker-
dealers have an incentive to underestimate credit risk in order to 
apply the lower capital charge. Such a determination could have a 
potential impact on the firm's ability, if it experiences financial 
difficulties, to be in a position to meet its obligations to customers, 
investors, and other counterparties and generate resources to wind-down 
its operations in an orderly manner without the need of a formal 
liquidation proceeding, with attendant costs. Increasing discretion in 
assessing creditworthiness for purposes of Rule 15c3-1 can facilitate 
such underestimation of credit risk. The Commission believes that this 
represents a significant risk in today's amendments. Broker-dealers 
whose internal evaluations typically are inconsistent with market data 
likely will

[[Page 1545]]

need to spend more time addressing examiners' concerns regarding the 
reasonableness of their policies and procedures and the accuracy of 
their determinations that a security or money market instrument has 
only a minimal amount of credit risk; a broker-dealer's desire to avoid 
these costs may help mitigate the broker-dealers' incentives to 
underestimate credit risk.
2. Effects on Security Issuers
    Today's amendments could impact capital formation by altering the 
set of securities that qualify for preferential treatment under Rule 
15c3-1. Under the economic baseline, issuers of commercial paper, 
nonconvertible debt securities, and preferred stock who obtain 
favorable ratings from two or more NRSROs benefit from having lower 
haircuts apply to their issuances. Consequently, these issuers may have 
greater access to the capital markets, while issuers without such a 
rating may have more limited access. The regulatory preference for 
NRSRO-rated securities also benefits issuers who can afford to have 
their securities rated by NRSROs, and discourages broker-dealers from 
considering all the relevant credit risk factors when making portfolio 
decisions. By eliminating the regulatory preference for NRSRO-rated 
securities, today's amendments could alter the set of securities 
qualifying for lower net capital charges, which would affect broker-
dealers' portfolio preferences. For example, the amendments could 
increase access to capital markets for smaller issuers whose commercial 
paper, nonconvertible debt securities, or preferred stock have only a 
minimal amount of credit risk, but for whom the costs of obtaining an 
NRSRO rating is potentially prohibitive. Such changes could increase 
competition among issuers for capital and improve the efficiency of the 
capital allocation process.
    While it is the intent of the Commission that today's amendments 
not alter the quality of assets that qualify for the lower haircut, it 
is nonetheless a possibility that the policies and procedures that 
broker-dealers establish will change the risk and/or net capital levels 
of broker-dealers. Changes or perceived changes to the amount of net 
capital being held by a broker-dealer could have negative repercussions 
on confidence in broker-dealers' financial position among their 
customers, counterparties, and investors. These impacts on confidence 
could disrupt the orderly functioning of the markets--for example, by 
encouraging counterparties to reduce their exposures to broker-dealers 
in response to uncertainty about broker-dealers' financial positions--
and thereby harm the capital formation process.
3. Effects on the Credit Ratings Industry
    Finally, today's amendments could have an effect on competition in 
the credit rating agency industry with consequences on economic 
efficiency. Currently there are ten NRSROs with the three largest 
accounting for the majority of all credit ratings. As noted earlier, 
the favorable regulatory treatment of NRSRO-rated securities increases 
demand for securities that have been rated by at least two NRSROs. 
Eliminating this favorable treatment may increase broker-dealers' use 
of alternative providers of credit risk analysis, which could increase 
competition in the credit rating agency industry. Furthermore, to the 
extent that NRSRO ratings are biased, as some have argued, additional 
competition among credit rating providers could help expose any such 
biases and increase incentives for NRSROs to produce accurate ratings.
    Reducing the emphasis on NRSRO ratings also could adversely affect 
the quality of NRSRO ratings. Currently, the importance attached to 
NRSRO ratings may impart franchise value to the NRSRO's ratings 
business. Eliminating references to NRSRO ratings in certain federal 
regulations could reduce these franchise values and mitigate NRSROs' 
incentives to produce credible and reliable ratings. Moreover, the 
Commission recognizes that the elimination of the required use of 
credit ratings in the specified Commission rules and forms may reduce 
the incentive for credit rating agencies to register as NRSROs with the 
Commission and thereby be subject to the Commission's oversight and the 
statutory and regulatory requirements applicable to NRSROs. To the 
extent that the quality and accuracy of NRSRO ratings is adversely 
affected, negative impacts on the capital allocation process and 
economic efficiency could result.

D. Costs and Benefits of the Rule Amendments

1. Rule 15c3-1 and Rule 17a-4
a. Benefits
    The Commission requested comment on all aspects of the benefits 
associated with the amendments to Rule 15c3-1, the appendices to Rule 
15c3-1, and Rule 17a-4, and received no comments. The Commission 
believes that one of the primary benefits of the amendments being 
adopted today is reducing potential undue reliance on NRSRO ratings 
that could be caused by references to NRSROs in Commission rules. 
Significantly, the Commission believes that eliminating references to 
NRSRO ratings in its rules would remove any appearance that the 
Commission has placed its imprimatur on such ratings. The Commission, 
however, also recognizes that credit ratings provide useful information 
to institutional and retail investors as part of the process of making 
an investment decision.
    The Commission believes that the amendments to Rule 15c3-1 and its 
appendices, as well as the conforming amendment to Rule 17a-4, will 
encourage a more complete assessment of the credit risks associated 
with securities held by broker-dealers. As the NRSROs themselves have 
stressed, NRSRO ratings are a one-dimensional measure that summarizes 
the likelihood that an obligor or financial obligation will fail to 
repay investors in accordance with the terms on which they made their 
investment and investors' expected recoveries in the event of such a 
failure.\296\ The simplicity of a one-dimensional measure is both its 
major advantage and its main limitation. For comparing securities with 
similar risk profiles, one-dimensional credit ratings are a useful 
summary measure. However, for securities with different risk profiles, 
such ratings can obscure important information about underlying 
differences in risk, such as time effects, default correlations, and 
the shape of loss distributions. The Commission expects that the 
amendments adopted today will encourage broker-dealers to incorporate 
this additional information in their credit risk evaluation process.
---------------------------------------------------------------------------

    \296\ See, e.g., Fitch, Inside the Ratings: What Credit Ratings 
Mean, (Aug. 2007), at 1; Testimony of Michael Kanef, Group Managing 
Director, Moody's Investors Service, Before the United States Senate 
Committee on Banking, Housing, and Urban Affairs (Sep. 26, 2007), at 
2; Testimony of Vickie A. Tillman, Executive Vice President, 
Standard & Poor's Credit Market Services, Before the United States 
Senate Committee on Banking, Housing, and Urban Affairs (Sep. 26, 
2007), at 3.
---------------------------------------------------------------------------

    Many broker-dealers already conduct their own risk evaluation. As 
one commenter noted ``[a] significant number of large broker-dealers 
have sophisticated internal credit review functions.'' \297\ However, 
for those broker-dealers that do not currently have their own means of 
evaluating risk for purposes of the amendments to Rule 15c3-1, the 
approach being adopted today will allow them to incorporate various 
observable factors and external

[[Page 1546]]

information sources in their new risk evaluation processes, which will 
lead to a better understanding of the risks associated with those 
securities.
---------------------------------------------------------------------------

    \297\ SIFMA Letter, at 11.
---------------------------------------------------------------------------

b. Costs
    The Commission recognizes, as a result of today's amendments, that 
broker-dealers may incur additional costs associated with performing a 
more detailed and comprehensive analysis of the debt securities they 
own. The Commission received two comments on the costs associated with 
the proposed amendments to Rule 15c3-1.\298\ As stated above, one 
commenter noted that ``the cost and complexity of developing a credit 
evaluation infrastructure covering many issuers and securities may be 
beyond the means of many broker-dealers.'' \299\ Another commenter 
worried that ``the cost to comply may be prohibitively high for the 
smaller or middle-market broker-dealers.'' \300\ As has been noted 
above, the Commission does not intend or expect broker-dealers to 
individually duplicate the function of credit rating agencies. Thus, 
the Commission believes that the costs of compliance with the 
amendments to Rule 15c3-1 and its appendices, as well as the conforming 
amendment to Rule 17a-4, would be minimal for the ``significant number 
of large broker-dealers'' that have a ``sophisticated internal credit 
review function'' for net capital purposes.\301\ Of the approximately 
434 broker-dealers that hold proprietary debt positions, the Commission 
recognizes that the level of sophistication varies widely. The broker-
dealers with less sophisticated internal procedures for analyzing 
credit risk may incur costs to establish and develop procedures that 
would be used to assess financial instruments for the purposes of 
determining whether the lower haircuts could appropriately be applied. 
However, the Commission believes that because the determination of a 
minimal amount of credit risk will vary among firms, and because 
broker-dealers may create policies and procedures using a small number 
of objective factors and external assessments, firms will be able to 
keep costs lower than if they were mandated to create policies and 
procedures based on numerous specified factors.\302\
---------------------------------------------------------------------------

    \298\ Bond Dealers Letter, at 2; SIFMA Letter, at 11, 18.
    \299\ SIFMA Letter, at 18.
    \300\ Bond Dealers Letter, at 2.
    \301\ SIFMA Letter, at 11.
    \302\ See SIFMA Letter, at 18 (``we believe the burden on small 
and medium-sized broker-dealers would be significantly reduced if 
the proposed amendment were to be interpreted . . . to permit 
policies and procedures that base the credit risk analysis solely on 
a small number of objectively determinable factors . . .'').
---------------------------------------------------------------------------

    There will be minimal costs associated with the amendments for 
firms that use Appendix A to Rule 15c3-1. The amendment to the 
definition of major market foreign currency is not intended to change 
the foreign currencies that currently receive lower haircuts under the 
rule. Therefore, the Commission does not believe there will be any 
costs associated with the amendments.
    Firms that use Appendices E and F to Rule 15c3-1 already undergo an 
approval process to use internal credit ratings to determine credit 
risk charges for each counterparty. Any new firms that apply to use 
either Appendix E or Appendix F will not incur any separate costs as a 
result of the amendments. Currently, firms that apply to use these 
appendices must have their internal models approved by the Commission 
prior to using their selected appendix. Although the Commission will 
have to assess the firm's process for determining internal credit 
ratings, this step will not cause broker-dealers who are applying to 
use these appendices to incur any additional costs. Furthermore, 
because the firms currently using these appendices have traditionally 
used models to compute capital charges, as opposed to NRSRO ratings, 
these firms will not incur any additional costs by complying with the 
amendments.
2. Exhibit A to Rule 15c3-3
a. Benefits
    The Commission requested comment on all aspects of the benefits 
associated with the amendment to Exhibit A to Rule 15c3-3 and received 
no comments. The amendment eliminates a criterion that qualified the 
debits at a clearing agency or derivatives clearing organization if it 
was assigned the highest credit rating given by any NRSRO. Broker-
dealers instead will be required to look to two other criterions based 
on financial metrics.
b. Costs
    The Commission requested comment on all aspects of the costs 
associated with Note G to Exhibit A to Rule 15c3-3 and received no 
comments. The total cost of compliance with Note G to Exhibit A to Rule 
15c3-3 will be minimal as the removal of the NRSRO credit ratings 
criterion from Note G is neither intended nor expected to change 
current security futures margining practices by broker-dealers. As 
stated in the PRA section, the Commission anticipates that a broker-
dealer will incur a one-time cost to verify that a clearing or 
derivatives clearing organization meets the requirements of Note G. If 
a broker-dealer is currently using one of the non-NRSRO criterions, it 
will not incur any one-time costs.
3. Rule 10b-10
a. Benefits
    The Commission believes that the amendment to Rule 10b-10 will 
benefit investors. As explained previously, the existing requirement to 
inform customers if a debt security, other than a government security, 
is unrated by an NRSRO may have the unintended effect of suggesting 
that rated securities are inherently better or less risky than unrated 
debt securities. The Commission believes that the existence of a rating 
should not give an investor extra comfort regarding the risks 
associated with the rated security. The amendment, by removing 
paragraph (a)(8)'s requirement to disclose whether certain securities 
are rated by an NRSRO, should help avoid promoting excessive reliance 
on NRSRO ratings. It also should help encourage investors to view NRSRO 
ratings as only one of multiple types of information relevant to 
evaluating credit risk. This in turn should help investors make more 
informed decisions regarding investments in debt securities.
b. Costs
    As stated in the proposing release, the Commission does not expect 
the amendment to result in any significant changes in the costs 
associated with Rule 10b-10. Broker-dealers will continue to generate 
transaction confirmations and send those confirmations to customers, 
and the amendment is not expected to change the cost of generating and 
sending confirmations. Moreover, the Commission believes that broker-
dealers may not incur costs if they choose not to input information 
that a debt security is unrated into their existing confirmation 
systems.
    As stated above, the Commission acknowledges that, in some 
instances, eliminating paragraph (a)(8) of Rule 10b-10 may remove some 
incentive to investigate the quality of unrated debt securities. The 
Commission believes, however, that any such potential cost would be 
balanced by the benefit of encouraging investors not to rely 
excessively on credit ratings for information about credit risk and to 
consider additional information.

[[Page 1547]]

E. Alternatives

1. Rule 15c3-1 and Rule 17a-4

    In adopting the amendments to Rule 15c3-1, the Commission 
considered several alternative approaches, including suggestions by 
commenters. The main suggestion by commenters was to use an objective 
standard of creditworthiness instead of a subjective standard of 
creditworthiness.\303\ Specifically, one commenter suggested the use of 
credit spreads and/or inclusion on an index as an objective 
standard.\304\ Although the Commission considered these standards, it 
determined the alternatives would not be practical because not all 
bonds are included on an index and for bonds that are thinly traded the 
yield spreads could include liquidity premia that have little relation 
to the credit risk of the bond, reducing the usefulness of the yield 
spreads as a signal for credit risk. Furthermore, creating different 
standards of creditworthiness for different securities could increase 
costs for broker-dealers that hold multiple types of securities. The 
Commission does, however, believe that objective factors could play an 
important role in determining whether a security or money market 
instrument has a minimal amount of credit risk. To emphasize this 
point, the Commission added language to paragraph (c)(2)(vi)(I) that 
was not in the proposed rule text that states that policies and 
procedures that are reasonably designed ``should result in assessments 
of creditworthiness that typically are consistent with market data.'' 
This language should encourage broker-dealers to review at least one 
external factor, such as credit spreads or pricing, when making its 
credit risk determination. In addition, assessments that are consistent 
with market data should take some of the subjectivity away from each 
broker-dealer when making a credit risk determination. Rather than 
mandate a specific set of factors that broker-dealers must use when 
assessing credit risk, the Commission thought it was better to allow 
broker-dealers to determine what specific factors would work best for 
their specific circumstances.
---------------------------------------------------------------------------

    \303\ See Bond Dealers Letter, at 3; SIFMA Letter, at 11.
    \304\ Bond Dealers Letter, at 3.
---------------------------------------------------------------------------

    The Commission understands that by not mandating an objective 
standard to determine the creditworthiness of a security or money 
market instrument there is a risk that a broker-dealer may incorrectly 
assess the credit risk. Using a subjective standard also could lead to 
inconsistent determinations of credit risk of the same security or 
money market instrument among broker-dealers. Inconsistent 
determinations of credit risk will lead to situations where broker-
dealers that determine the security has only a minimal amount of credit 
risk will apply a lower haircut to the position than broker-dealers 
that determine that the security does not have a minimal amount of 
credit risk. The Commission expects, however, that the risk of this 
occurring will be mitigated by the Commission and SRO examination 
process, during which Commission and SRO examiners will assess the 
reasonableness of broker-dealers' policies and procedures for 
determining net capital haircuts under the minimal amount of credit 
risk standard and review the firms' adherence to the policies and 
procedures. A broker-dealer will need to be able to explain its credit 
risk analysis and ultimate determination to examiners as part of the 
examination process. If a broker-dealer has reasonable policies and 
procedures in place for determining credit risk, and those policies and 
procedures are followed, the potential for bias to be a part of the 
assessment process should be mitigated.
    The Commission also considered mandating that broker-dealers use a 
certain number of factors or specific factors when making a credit risk 
determination. Ultimately, the Commission decided that allowing broker-
dealers to establish policies and procedures that are tailored to the 
size and activities of the broker-dealer would keep costs down. 
Further, a given factor may be appropriate only for certain types of 
positions and could, if applied inappropriately, lead to inaccurate 
credit risk determinations. Allowing a broker-dealer the flexibility in 
selecting the factors it uses to assess the credit risk of its 
portfolio could lead to more accurate credit risk determinations.
    In adopting the amendments to Appendices E and F of Rule 15c3-1, 
the Commission considered the alternative proposed by commenters that 
the minimal amount of credit risk standard be used. However, as 
explained earlier, the Commission does not believe such a standard 
would work in Appendices E and F because the minimal amount of credit 
risk standard in Rule 15c3-1 replaced a binary NRSRO credit rating 
standard under which the application of a lower or higher haircut 
amount depends on whether the commercial paper is rated in the top 
three rating categories and the nonconvertible debt and preferred stock 
is rated in the top four rating categories. Thus, the instrument either 
meets the requirement to apply the lower haircut or is subject to the 
higher haircut. The NRSRO credit ratings standard in Appendices E and F 
to Rule 15c3-1 is not binary because there are three gradations for 
credit risk weights. Thus, the minimal amount of credit risk standard 
would not be a suitable replacement.\305\
---------------------------------------------------------------------------

    \305\ See sections II.B.1.c.iii. and II.B.1.d.iii., supra.
---------------------------------------------------------------------------

2. Exhibit A to Rule 15c3-3
    In adopting the amendments to Exhibit A to Rule 15c3-3, the 
Commission did not consider any alternatives to the proposal and did 
not receive comments offering any alternatives to the proposal. The 
Commission could have established an alternative criterion but chose 
not to because the remaining three criteria in the rule are 
alternatives that permit broker-dealers to meet the objectives of the 
rule.
3. Rule 10b-10
    In adopting the amendments to Rule 10b-10, the Commission 
considered not deleting paragraph (a)(8) as proposed. The Commission 
also considered requiring broker-dealers to disclose alternative 
information relating to the credit risk of certain debt securities. The 
Commission determined, however, that requiring the disclosure of 
alternative information regarding credit risk associated with debt 
securities similar to that required by paragraph (a)(8) would be 
inconsistent with the goal of reducing investors' reliance on credit 
ratings. Elevating an alternative measure of credit risk to the status 
now conferred upon NRSRO ratings by paragraph (a)(8) would merely 
substitute one standard upon which investors may have come to rely upon 
excessively for another. Prohibiting any reference to NRSRO credit 
ratings in confirmations, however, would seem to go too far by 
preventing broker-dealers from including information that they believe 
a reasonable investor would want to consider in particular 
circumstances. The Commission also determined that substituting another 
credit risk-related disclosure requirement for paragraph (a)(8) was 
unnecessary, given that credit risk information is likely to be 
disclosed before a transaction for reasons independent of paragraph 
(a)(8),\306\ and given the other disclosures required by Rule 10b-10 in 
connection with

[[Page 1548]]

transactions in certain asset-backed securities.\307\
---------------------------------------------------------------------------

    \306\ See Confirmation of Transactions, at 59 FR 59617 
(explaining that the information required by paragraph (a)(8) 
should, in most cases, ``verify information that was disclosed to 
the investor prior to the transaction.'').
    \307\ For example, in connection with transactions in certain 
asset-backed securities, paragraphs (a)(4) through (a)(7) of Rule 
10b-10 require disclosure of information relating to prepayment risk 
and yield information.
---------------------------------------------------------------------------

V. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (``RFA'') \308\ requires the 
Commission, in promulgating rules, to consider the impact of those 
rules on small entities. An Initial Regulatory Flexibility Act Analysis 
was prepared in accordance with the Regulatory Flexibility Act and 
included in the proposing release. The Commission certified in the 
proposing release, pursuant to section 605(b) of the RFA,\309\ that the 
proposed rule would not, if adopted, have a significant impact on a 
substantial number of small entities. The Commission received no 
comments on this certification.
---------------------------------------------------------------------------

    \308\ 5 U.S.C. 601 et seq.
    \309\ See 5 U.S.C. 605(b).
---------------------------------------------------------------------------

    For purposes of Commission rulemaking in connection with the RFA, 
small entities include broker-dealers with total capital (net worth 
plus subordinated liabilities) of less than $500,000 on the date in the 
prior fiscal year as of which its audited financial statements were 
prepared pursuant to Rule 17a-5 under the Exchange Act,\310\ or, if not 
required to file such statements, a broker or dealer that had total 
capital (net worth plus subordinated liabilities) of less than $500,000 
on the last day of the preceding fiscal year (or in the time that it 
has been in business, if shorter) and is not affiliated with any person 
(other than a natural person) that is not a small business or small 
organization.\311\
---------------------------------------------------------------------------

    \310\ See 17 CFR 240.17a-5(d).
    \311\ See 17 CFR 240.0-10(c).
---------------------------------------------------------------------------

    The amendments adopted today relating to the securities haircut 
provisions in Rule 15c3-1 and the conforming amendment to Rule 17a-4 
will not have a significant economic impact on a small number of 
entities. Only seven of the 434 broker-dealers that hold proprietary 
debt positions are considered small for purposes of the RFA and, in the 
staff's experience, broker-dealers with less than $500,000 in total 
capital typically hold very few proprietary securities positions and, 
in particular, a small number of debt securities. Thus, there are few 
small entities that will be impacted by these amendments. In addition, 
the amendments allow broker-dealers that hold these debt positions, 
including those broker-dealers that are considered small for purposes 
of the RFA, to establish policies and procedures that rely on only a 
few factors to keep costs low. Further, a small broker-dealer could 
choose to take the 15% catchall haircut instead of establishing 
policies and procedures if it determines such an approach is cost-
effective. Accordingly, the amendments will not have a significant 
economic impact on a substantial number of small entities because even 
if the small entities have to change their current process, they can do 
so in such a way to minimize economic impact and still comply with the 
rule amendments.
    The amendment to Appendix A to Rule 15c3-1 will not result in a 
significant impact on small entities. Although the definition of major 
market foreign currency will change, the Commission does not intend 
that the currencies that meet the definition of major market foreign 
currency will change because the currency will still have to have a 
substantial inter-bank forward currency market. Consequently, the 
amendments should not have a significant impact on broker-dealers, 
including small broker-dealers. Furthermore, the broker-dealers that 
operate under Appendix A to Rule 15c3-1 generally are market makers and 
trading firms that are not small entities as defined in Rule 0-10.
    The amendments to the Appendices E and F to Rule 15c3-1 (which 
include conforming amendments to Appendix G to Rule 15c3-1 and the 
General Instructions to Form X-17A-5, Part IIB) will not apply to small 
entities. Appendices E and G apply to ANC broker-dealers and Appendix F 
and Form X-17A-5, Part IIB apply to OTC derivatives dealers. The ANC 
broker-dealers and the OTC derivatives dealers are not small entities 
as defined in Rule 0-10.
    The amendments to Exhibit A to Rule 15c3-3 will not have a 
significant economic impact on a substantial number of small entities. 
As noted above, the OCC is the only clearing agency that meets the 
criteria to qualify for the debit for purposes of the reserve 
computation. The fact that the OCC meets the criteria to qualify for 
the debit is well understood among broker-dealers, including small 
broker-dealers.
    The amendment to Rule 10b-10 will not have a significant economic 
impact on a substantial number of small entities. While a number of the 
broker-dealers that effect transactions in the debt securities 
currently subject to paragraph (a)(8) may be small entities, the 
Commission believes that it is uncommon for small broker-dealers to 
issue confirmations.\312\ The Commission does not have a precise 
numerical estimate of the small broker-dealers that issue confirmations 
in connection with transactions in securities covered by paragraph 
(a)(8). The Commission believes, however, that the number is unlikely 
to be significant. In addition, the Commission continues to believe 
that the proposed amendment should not result in any significant change 
to the cost of providing confirmations to customers in connection with 
transactions in securities covered by paragraph (a)(8). Consequently, 
the Commission continues to believe that the removal of paragraph 
(a)(8) from Rule 10b-10 should not have a significant economic impact 
on a substantial number of small entities.
---------------------------------------------------------------------------

    \312\ The Commission understands that most small broker-dealers 
introduce their accounts to clearing firms that, in turn, would 
typically issue the confirmations.
---------------------------------------------------------------------------

    For the reasons described above, the Commission again certifies 
that the amendments to Rule 15c3-1, Appendices A, E, F, and G to Rule 
15c3-1, Exhibit A to Rule 15c3-3, Rule 17a-4, the General Instructions 
to Form X-17A-5, Part IIB, and Rule 10b-10 will not have a significant 
economic impact on a substantial number of small entities.

VI. Statutory Basis and Text of the Proposed Amendments

    Pursuant to the Exchange Act, 15 U.S.C. 78a et seq., and 
particularly, Sections 3(b), 15, 23(a), and 36 (15 U.S.C. 78c(b), 78o, 
78w(a), and 78mm), thereof, and Sections 939 and 939A of the Dodd-Frank 
Act, the Commission is amending Sec. Sec.  240.10b-10, 240.15c3-1, 
240.15c3-1a, 240.15c3-1e, 240.15c3-1f, 240.15c3-1g, 240.15c3-3a, 
240.17a-4, and Form X-17A-5 Part IIB General Instructions under the 
Exchange Act.

List of Subjects in 17 CFR Parts 240 and 249

    Brokers, Fraud, Reporting and recordkeeping requirements, 
Securities.

Text of Amendment

    In accordance with the foregoing, Title 17, Chapter II of the Code 
of Federal Regulations is amended as follows:

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

0
1. The authority citation for part 240 is amended by revising the 
general authority and adding sectional authorities for Sec. Sec.  
240.15c3-1a, 240.15c3-1e, 240.15c3-1f, 240.15c3-1g

[[Page 1549]]

and Sec.  240.15c3-3a in numerical order to read as follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 
78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 
78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 
80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, 7201 et seq., and 
8302; 7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. 1350, 
unless otherwise noted.
* * * * *

    Sections 240.15c3-1a, 240.15c3-1e, 240.15c3-1f, 240.15c3-1g are 
also issued under Pub. L. 111-203, secs. 939, 939A, 124. Stat. 1376 
(2010) (15 U.S.C. 78c, 15 U.S.C. 78o-7 note).
* * * * *
    Section 240.15c3-3a is also issued under Pub. L. 111-203, 
Sec. Sec.  939, 939A, 124. Stat. 1376 (2010) (15 U.S.C. 78c, 15 
U.S.C. 78o-7 note).
* * * * *

Sec.  240.10b-10  [Amended]

0
2. Section 240.10b-10 is amended by removing paragraph (a)(8) and 
redesignating paragraph (a)(9) as paragraph (a)(8).
0
3. Section 240.15c3-1 is amended by:
0
a. Revising paragraphs (c)(2)(vi)(E) introductory text, 
(c)(2)(vi)(F)(1) introductory text, (c)(2)(vi)(F)(2) introductory text, 
and (c)(2)(vi)(H); and
0
b. Adding paragraph (c)(2)(vi)(I).
    The revisions and addition read as follows:


Sec.  240.15c3-1  Net capital requirements for brokers or dealers.

* * * * *
    (c) * * *
    (2) * * *
    (vi) * * *
    (E) Commercial paper, bankers' acceptances and certificates of 
deposit. In the case of any short term promissory note or evidence of 
indebtedness which has a fixed rate of interest or is sold at a 
discount, which has a maturity date at date of issuance not exceeding 
nine months exclusive of days of grace, or any renewal thereof, the 
maturity of which is likewise limited and has only a minimal amount of 
credit risk, or in the case of any negotiable certificates of deposit 
or bankers' acceptance or similar type of instrument issued or 
guaranteed by any bank as defined in section 3(a)(6) of the Securities 
Exchange Act of 1934 (15 U.S.C. 78c(a)(6)), the applicable percentage 
of the market value of the greater of the long or short position in 
each of the categories specified below are:
* * * * *
    (F)(1) Nonconvertible debt securities. In the case of 
nonconvertible debt securities having a fixed interest rate and a fixed 
maturity date, which are not traded flat or in default as to principal 
or interest and which have only a minimal amount of credit risk, the 
applicable percentages of the market value of the greater of the long 
or short position in each of the categories specified below are:
* * * * *
    (2) A broker or dealer may elect to exclude from the above 
categories long or short positions that are hedged with short or long 
positions in securities issued by the United States or any agency 
thereof or nonconvertible debt securities having a fixed interest rate 
and a fixed maturity date and which are not traded flat or in default 
as to principal or interest, and which have only a minimal amount of 
credit risk if such securities have maturity dates:
* * * * *
    (H) In the case of cumulative, non-convertible preferred stock 
ranking prior to all other classes of stock of the same issuer, which 
has only a minimal amount of credit risk and which are not in arrears 
as to dividends, the deduction shall be 10% of the market value of the 
greater of the long or short position.
    (I) In order to apply a deduction under paragraphs (c)(2)(vi)(E), 
(c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2), or (c)(2)(vi)(H) of this section, 
the broker or dealer must assess the creditworthiness of the security 
or money market instrument pursuant to policies and procedures for 
assessing and monitoring creditworthiness that the broker or dealer 
establishes, documents, maintains, and enforces. The policies and 
procedures must be reasonably designed for the purpose of determining 
whether a security or money market instrument has only a minimal amount 
of credit risk. Policies and procedures that are reasonably designed 
for this purpose should result in assessments of creditworthiness that 
typically are consistent with market data. A broker-dealer that opts 
not to make an assessment of creditworthiness under this paragraph may 
not apply the deductions under paragraphs (c)(2)(vi)(E), 
(c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2), or (c)(2)(vi)(H) of this section.

    Note to paragraph (c)(2)(vi)(I): For a discussion of the 
``minimal amount of credit risk'' standard, see Removal of Certain 
References to Credit Ratings Under the Securities Exchange Act of 
1934, Exchange Act Release No. 34-71194 (Dec. 27, 2013), at http://www.sec.gov/rules/final.shtml.

* * * * *


Sec.  240.15c3-1a  [Amended]

0
4. Section 240.15c3-1a, paragraph (b)(1)(i)(C), is amended by removing 
the phrase ``whose short term debt is rated in one of the two highest 
categories by at least two nationally recognized statistical rating 
organizations and'' and by removing the last sentence.
0
5. Section 240.15c3-1e is amended by:
0
a. Revising the introductory text in paragraph (c)(4)(vi);
0
b. Removing paragraphs (c)(4)(vi)(A) through (c)(4)(iv)(D);
0
c. Redesignating paragraphs (c)(4)(vi)(E), (F), and (G) as paragraphs 
(c)(4)(vi)(A), (B), and (C), respectively; and
0
d. Revising newly redesignated paragraph (c)(4)(vi)(A).
    The revisions read as follows:


Sec.  240.15c3-1e  Deductions for market and credit risk for certain 
brokers or dealers (Appendix E to 17 CFR 240.15c3-1).

* * * * *
    (c) * * *
    (4) * * *
    (vi) Credit risk weights of counterparties. A broker or dealer that 
computes its deductions for credit risk pursuant to this Appendix E 
shall apply a credit risk weight for transactions with a counterparty 
of either 20%, 50%, or 150% based on an internal credit rating the 
broker or dealer determines for the counterparty.
    (A) As part of its initial application or in an amendment, the 
broker or dealer may request Commission approval to apply a credit risk 
weight of either 20%, 50%, or 150% based on internal calculations of 
credit ratings, including internal estimates of the maturity 
adjustment. Based on the strength of the broker's or dealer's internal 
credit risk management system, the Commission may approve the 
application. The broker or dealer must make and keep current a record 
of the basis for the credit rating of each counterparty;
* * * * *

0
6. Section 240.15c3-1f is amended by:
0
a. Removing from paragraph (d)(2) introductory text the phrase ``the 
counterparty factor. The counter party factors are:'' and adding in its 
place ``a counterparty factor of 20%, 50%, or 100% based on an internal 
credit rating the OTC derivatives dealer determines for the 
counterparty; and'';
0
b. Removing paragraphs (d)(2)(i) through (d)(2)(iii); and
0
c. Revising paragraphs (d)(3)(i), (d)(3)(ii), (d)(3)(iii), and (d)(4).
    The revisions read as follows:

[[Page 1550]]

Sec.  240.15c3-1f  Optional market and credit risk requirements for OTC 
derivatives dealers (Appendix F to 17 CFR 240.15c3-1).

* * * * *
    (d) * * *
    (3) * * *
    (i) For counterparties for which an OTC derivatives dealer assigns 
an internal rating for senior unsecured long-term debt or commercial 
paper that would apply a 20% counterparty factor under paragraph (d)(2) 
of this section, 5% of the amount of the net replacement value in 
excess of 25% of the OTC derivatives dealer's tentative net capital;
    (ii) For counterparties for which an OTC derivatives dealer assigns 
an internal rating for senior unsecured long-term debt that would apply 
a 50% counterparty factor under paragraph (d)(2) of this section, 20% 
of the amount of the net replacement value in excess of 25% of the OTC 
derivatives dealer's tentative net capital;
    (iii) For counterparties for which an OTC derivatives dealer 
assigns an internal rating for senior unsecured long-term debt that 
would apply a 100% counterparty factor under paragraph (d)(2) of this 
section, 50% of the amount of the net replacement value in excess of 
25% of the OTC derivatives dealer's tentative net capital.
    (4) Counterparties may be rated by the OTC derivatives dealer, or 
by an affiliated bank or affiliated broker-dealer of the OTC 
derivatives dealer, upon approval by the Commission on application by 
the OTC derivatives dealer. Based on the strength of the OTC 
derivatives dealer's internal credit risk management system, the 
Commission may approve the application. The OTC derivatives dealer must 
make and keep current a record of the basis for the credit rating for 
each counterparty.
* * * * *


Sec.  240.15c3-1g  [Amended]

0
7. Section 240.15c3-1g(a)(3)(i)(F) is amended by removing the phrase 
``paragraphs (c)(4)(vi)(D) and (c)(4)(vi)(E)'' and adding in its place 
``paragraphs (c)(4)(vi)(A) and (c)(4)(vi)(B)''.


Sec.  240.15c3-3a  [Amended]

0
8. Section 240.15c3-3a is amended by removing paragraph (b)(1)(i) of 
Note G and redesignating paragraphs (b)(1)(ii), (iii), and (iv) of Note 
G as paragraphs (b)(1)(i), (ii), and (iii), respectively.
0
9. Section 240.17a-4 is amended by:
0
a. Removing from paragraph (b)(12) the phrase ``Sec.  240.15c3-
1e(c)(4)(vi)(D) and (E)'' and adding in its place ``Sec.  240.15c3-
1e(c)(4)(vi) ''; and
0
b. Adding paragraph (b)(13).
    The addition reads as follows:


Sec.  240.17a-4  Records to be preserved by certain exchange members, 
brokers and dealers.

* * * * *
    (b) * * *
    (13) The written policies and procedures the broker-dealer 
establishes, documents, maintains, and enforces to assess 
creditworthiness for the purpose of Sec.  240.15c3-1(c)(2)(vi)(E), 
(c)(2)(vi)(F)(1), (c)(2)(vi)(F)(2), and (c)(2)(vi)(H).
* * * * *

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

0
10. The authority citation for Part 249 is amended by adding a 
sectional authority for Sec.  249.617 in numerical order to read as 
follows:

    Authority: 15 U.S.C. 78a et seq. and 7201 et. seq.; 12 U.S.C. 
5461 et seq.; and 18 U.S.C. 1350, unless otherwise noted.

* * * * *
    Section 249.617 is also issued under Pub. L. 111-203, Sec. Sec.  
939, 939A, 124. Stat. 1376 (2010) (15 U.S.C. 78c, 15 U.S.C. 78o-7 
note).
* * * * *


0
11. Amend Form X-17A-5 Part IIB General Instructions (referenced in 
Sec.  249.617) by:
0
a. Removing Schedule IV: Internal Credit Rating Conversion; and
0
b. Removing all but the first sentence in the section ``Credit risk 
exposure'' under the heading ``Computation of Net Capital and Required 
Net Capital,'' and adding a second sentence that reads ``The counter-
party charge is computed using the credit risk weights assigned to the 
OTC derivatives dealer's internal calculations by the Commission under 
paragraph (d)(2) of Appendix F.''

    Note: The text of Form X-17A-5 Part IIB does not, and this 
amendment will not, appear in the Code of Federal Regulations.

* * * * *

    By the Commission.

    Dated: December 27, 2013.
Lynn M. Powalski,
Deputy Secretary.
[FR Doc. 2013-31426 Filed 1-7-14; 8:45 am]
BILLING CODE 8011-01-P