February 2012 Board Update
February 17, 2012
Dear Executive Representative:
The FINRA Board of Governors met this week to discuss a number of issues, including several rulemaking items. A summary of the rule proposals, as approved by the Board, and next steps are included below.
I will continue to keep you updated on FINRA activities.
Richard G. Ketchum
Chairman and CEO
Rulemaking Items Discussed at the February 2012 Meeting
Agency Pass-Through Mortgage-Backed Securities and Securities Backed by Small Business Administration Transactions
The Board authorized staff to file with the SEC proposed amendments to the FINRA Rule 6700 Series (TRACE rules) to disseminate publicly transactions in Agency Pass-Through Mortgage-Backed Securities (Agency Pass-Through MBS traded in specified pools), and securities backed by Small Business Administration loans (SBA-backed ABS traded in specified pools or TBA (To Be Announced)). The proposed amendments also will reduce the reporting period for transactions in such securities in two phases: first to two hours from the time of execution, then, after six months, to one hour from the time of execution. In connection with the dissemination of such transactions, as part of dissemination protocols, FINRA would set a $10 million dissemination cap, with the result that the disseminated size (volume) of a transaction in excess of $10 million would be displayed as "$10MM+."
SBA TBA transactions would be subject to the dissemination and reporting provisions and the dissemination cap that FINRA previously proposed regarding TBA transactions in SR-FINRA-2011-069, which is pending currently before the SEC.
Deferred Compensation Arrangements and Filing Exemption for ETF Offerings
The Board authorized FINRA staff to seek comment in a Regulatory Notice on amendments to the Corporate Financing Rule (FINRA Rule 5110), which governs underwriting terms and arrangements in public offerings of securities. Investment banks typically enter into engagement letters with issuers to provide underwriting and financial advisory services that allow issuers to defer payment until after completion of a capital-raising transaction. The amendments address the termination provisions in engagement letters by specifying the length and terms of such provisions, including the issuer's right to terminate its obligations for cause.
The amendments also would eliminate a requirement that exchange-traded funds (ETFs) that are not registered investment companies must file offering documents and other information with FINRA under the Corporate Financing Rule. Most ETFs are investment companies and are not subject to the rule's filing requirements. The rule's regulation of underwriting terms and arrangements was not designed for the ETF distribution methodology by which a "basket" of underlying assets is deposited in an ETF's portfolio and "creation units" of shares are provided to broker-dealers in return.
Margin Requirements for Credit Default Swaps
The Board authorized FINRA staff to file with the SEC proposed amendments to FINRA Rule 4240 governing an interim pilot program with respect to margin requirements for credit default swaps (CDS). The amendments would revise the rule to limit its application to CDS that are security-based swaps and make certain other conforming revisions in connection with such limitation. In addition, the amendments would extend the rule's implementation to July 17, 2012, update the rule's margin requirements in light of the experience of FINRA staff in the rule's administration and make certain clarifying edits.
The Board authorized FINRA staff to submit a proposed rule change to the SEC to exempt certain funds of funds from the requirement to assess the status of indirect beneficial owners for purposes of purchasing new issues under the spinning provisions of FINRA Rule 5131(b). The proposed exemption is for funds of funds that meet the SEC's definition of "private fund" and that have unaffiliated investee funds that meet certain size ($50 million in assets) and ownership (ownership interests of less than 25 percent) criteria. These conditions preserve the important protections of the rule while aiding capital formation by offering meaningful relief to funds of funds.