[Federal Register Volume 76, Number 45 (Tuesday, March 8, 2011)]
[Proposed Rules]
[Pages 12645-12648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5183]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 242

[Release No. 34-64018; File No. S7-27-10]
RIN 3235-AK74


Ownership Limitations and Governance Requirements for Security-
Based Swap Clearing Agencies, Security-Based Swap Execution Facilities, 
and National Securities Exchanges With Respect to Security-Based Swaps 
Under Regulation MC

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
reopening the period for public comment on proposed Regulation MC under 
the Securities Exchange Act of 1934 (``Exchange Act''), which is 
designed to mitigate potential conflicts of interest at clearing 
agencies that clear security-based swaps (``security-based swap 
clearing agencies''), security-based swap execution facilities (``SB 
SEFs''), and national securities exchanges that post or make available 
for trading security-based swaps (``SBS exchanges''). The proposal was 
originally published in Securities Exchange Act Release No. 63107 
(October 14, 2010), 75 FR 65882 (October 26, 2010) (``Regulation MC 
Proposing Release''). The Commission is reopening the period for public 
comment to solicit further comment on Regulation MC in light of other 
more recent proposed rulemakings that concern conflicts of interest at 
security-based swap clearing agencies and SB SEFs.

DATES: Comments should be received on or before April 29, 2011.

[[Page 12646]]


ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File No. S7-27-10 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File No. S7-27-10. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments 
are also available for Web site viewing and printing in the 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549, on official business days between the hours of 10 a.m. and 3 
p.m. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: Proposals relating to security-based 
swap clearing agencies: Catherine Moore, Senior Special Counsel, at 
(202) 551-5710; and Joseph P. Kamnik, Special Counsel, at (202) 551-
5710, Office of Clearance and Settlement, Division of Trading and 
Markets, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-7010; proposals relating to SB SEFs and SBS 
exchanges: Nancy J. Burke-Sanow, Assistant Director, at (202) 551-5620; 
Susie Cho, Special Counsel, at (202) 551-5639; Sarah Schandler, Special 
Counsel, at (202) 551-7145; Iliana Lundblad, Attorney-Advisor, at (202) 
551-5871; and Jasmin Sethi, Attorney-Advisor, at (202) 551-5781, Office 
of Market Supervision, Division of Trading and Markets, Securities and 
Exchange Commission, 100 F Street, NE., Washington, DC 20549-7010.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Commission proposed Regulation MC pursuant to Section 765 of 
the Dodd Frank Wall Street Reform and Consumer Protection Act (``Dodd-
Frank Act'') to mitigate conflicts of interest with respect to 
security-based swap clearing agencies, SB SEFs, and SBS exchanges.\1\ 
Section 765(a) of the Dodd-Frank Act provides that the Commission shall 
adopt rules, which may include numerical limits on the control of, or 
the voting rights with respect to, any security-based swap clearing 
agency, or on the control of any SB SEF or SBS exchange, by certain 
specified entities.\2\ Under Section 765(b) of the Dodd-Frank Act, the 
Commission shall adopt such rules if it determines that they are 
necessary or appropriate to improve the governance of, or to mitigate 
systemic risk, promote competition or mitigate conflicts of interest in 
connection with a security-based swap dealer's or major security-based 
swap participant's conduct of business with, a security-based swap 
clearing agency, SB SEF, or SBS exchange and in which such security-
based swap dealer or major security-based swap participant has a 
material debt or equity investment.\3\
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    \1\ The President signed the Dodd-Frank Act (Pub. L. 111-203, 
H.R. 4173) into law on July 21, 2010.
    \2\ See Public Law 111-203, Section 765(a). The entities 
specified in Section 765(a) (collectively, ``Specified Entities'') 
include a bank holding company with total consolidated assets of $50 
billion or more, a nonbank financial company supervised by the Board 
of Governors of the Federal Reserve System, an affiliate of such 
bank holding company or nonbank financial company, a security-based 
swap dealer, a major security-based swap participant, or a person 
associated with a security-based swap dealer or a major security-
based swap participant.
    \3\ See Public Law 111-203, Section 765(b).
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    In the Regulation MC Proposing Release, the Commission identified 
conflicts of interest that may arise when a small number of 
participants, including participants that are Specified Entities, 
exercise undue control or influence over a security-based swap clearing 
agency, SB SEF or SBS exchange.\4\ To address these potential conflicts 
of interest, and pursuant to Section 765 of the Dodd-Frank Act, the 
Commission proposed certain restrictions in Regulation MC with respect 
to the ownership and voting interests in and the governance of 
security-based swap clearing agencies, SB SEFs and SBS exchanges. 
Specifically, the Commission proposed two alternative rules for 
security-based swap clearing agencies that would impose different 
degrees of voting and governance restrictions on such entities \5\ and 
one set of rules that would impose ownership and governance limitations 
on SB SEFs and SBS exchanges.\6\
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    \4\ Specifically, the Commission noted that these participants, 
for competitive or commercial reasons, may have an incentive to 
limit access by other participants to security-based swap clearing 
agencies, SB SEFs and SBS exchanges; to limit the scope of products 
cleared through security-based swap clearing agencies or traded on 
SB SEFs and SBS exchanges; to lower the risk management controls at 
security-based swap clearing agencies; and to put the commercial 
interests of the SB SEF or SBS exchange or the SB SEF's or SBS 
exchange's owners ahead of the SB SEF's or SBS exchange's market 
oversight responsibilities. See Regulation MC Proposing Release, 75 
FR at 65884-65893.
    \5\ Proposed Rule 701(a) of Regulation MC sets forth the 
``Voting Interest Focus Alternative,'' which would create a 
limitation on ownership and voting of voting interests for 
participants of a security-based swap clearing agency to no more 
than 20% on an individual basis and, in the aggregate, no more than 
40% (``aggregate cap''). Proposed Rule 701(a) would also limit 
members' participation in the governance of the security-based swap 
clearing agency by requiring that at least 35% of the security-based 
swap clearing agency's board of directors (`board'') and committees 
authorized to act on behalf of such board, including the risk 
committee, be composed of independent directors. The nominating 
committee of the security-based swap clearing agency's board would 
be required to be composed of a majority of independent directors. 
See Regulation MC Proposing Release, 75 FR at 65894-65899.
    Proposed Rule 701(b) of Regulation MC sets forth the 
``Governance Focus Alternative,'' which would create a limitation on 
ownership of voting interests for participants of a security-based 
swap clearing agency to no more than 5% on an individual basis but 
would impose no aggregate cap. Proposed Rule 701(b) would also limit 
members' participation in the governance of the security-based swap 
clearing agency by requiring that at least a majority of the 
security-based swap clearing agency's board and committees 
authorized to act for such board, including the risk committee, be 
composed of independent directors. The nominating committee of the 
security-based swap clearing agency's board would be required to be 
composed solely of independent directors. See Regulation MC 
Proposing Release, 75 FR at 65899-65903.
    \6\ Proposed Rule 702(b) of Regulation MC would impose a 20% 
limitation on ownership and voting of voting interests in a SB SEF 
or an SBS exchange by each participant of a SB SEF or member of an 
SBS exchange. Proposed Rules 702(d) and (g) would require that the 
board of a SB SEF or SBS exchange, any executive committee of such 
board, and any board committee with the authority to act on behalf 
of the board, be composed of a majority of independent directors, 
and proposed Rule 702(f) would require the nominating committee of 
the board of the SB SEF or SBS exchange to be composed solely of 
independent directors. Proposed Rule 702(e) would require the board 
of the SB SEF or SBS exchange to establish a regulatory oversight 
committee consisting solely of independent directors to oversee the 
SB SEF's or SBS exchange's regulatory program. Any recommendation of 
the regulatory oversight committee not adopted by the board of the 
SB SEF or SBS exchange would be required to be reported promptly to 
the Commission. Further, proposed Rule 702(h) would require the 
disciplinary processes of the SB SEF or SBS exchange to provide for 
compositional balance and to include at least one independent 
director. See Regulation MC Proposing Release, 75 FR at 65904-65912.
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    In the Regulation MC Proposing Release, the Commission sought 
commenters' views with respect to the identified conflicts of interest 
and its

[[Page 12647]]

proposed rules that are designed to mitigate those conflicts. The 
public comment period for proposed Regulation MC closed on November 26, 
2010. As of March 1, 2011, the Commission has received 100 comment 
letters relating to proposed Regulation MC.\7\ The Commission also 
received 6 comment letters relating to Section 765 of the Dodd-Frank 
Act that were received in response to the Commission's general 
solicitation of comments regarding implementation of the Dodd-Frank 
Act.\8\ These letters were submitted by a broad spectrum of interested 
parties and reflect a wide array of views regarding the proposed 
limitations on ownership and voting interests and governance 
arrangements in proposed Regulation MC.\9\ A number of commenters 
generally supported the Commission's efforts to address conflicts of 
interest at security-based swap clearing agencies, SB SEFs and SBS 
exchanges, and many of these commenters favored imposing more 
restrictive ownership and voting, or governance, requirements than were 
proposed in Regulation MC.\10\ A number of other commenters opposed 
some or all of the proposed restrictions and questioned whether it is 
necessary or appropriate for the Commission to adopt rules to mitigate 
conflicts of interest under Section 765 or whether the Commission 
should adopt rules without conducting a further review.\11\
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    \7\ Copies of comments received in response to the Regulation MC 
Proposing Release are available on the Commission's Internet Web 
site, located at http://www.sec.gov/comments/s7-27-10/s72710.shtml.
    \8\ Comments were solicited by the Commission at http://www.sec.gov/spotkight/dodd-frank/clearing-settlement.shtml. Comments 
in response to the Commission's general solicitation are available 
at http://www.sec.gov/comments/df-title-vii/mandatory-clearing/mandatory-clearing.shtml. There is no expiration to the comment 
period for the Commission's general solicitation.
    \9\ The commenters included individual investors, end-users, 
members of Congress, the U.S. Department of Justice, State 
legislators, labor organizations, potential security-based swap 
dealers and clearing agencies, and potential SBS exchanges or SB 
SEFs. See supra notes 7 and 8.
    \10\ See, e.g., Letter from U.S. Congressman Stephen F. Lynch, 
9th District, Massachusetts (October 18, 2010); Letter from 
Americans for Financial Reform (November 16, 2010); Letter from 
Karrie McMillan, General Counsel, Investment Company Institute 
(November 17, 2010); Letter from Mike Hisler, Co-Founder, The Swaps 
& Derivatives Market Association (November 26, 2010); and Letter 
from Christine A. Varney, Assistant Attorney General, U.S. 
Department of Justice, Antitrust Division (December 28, 2010).
    \11\ See, e.g., Letters from Roger Liddell, Chief Executive, 
LCH.Clearnet Group Limited (September 24, 2010 and November 5, 
2010); Letter from R. Glenn Hubbard, Co-Chair, John L. Thornton, Co-
Chair, and Hal S. Scott, Director, Committee on Capital Markets 
Regulation (November 15, 2010); Letter from James Hill, Managing 
Director, Morgan Stanley (November 17, 2010); Letters from Kathleen 
M. Cronin, Managing Director, General Counsel and Corporate 
Secretary, CME Group Inc. (November 17, 2010 and November 24, 2010); 
and Letter from Robert Pickel, Executive Vice Chairman, 
International Swaps and Derivatives Association, Inc. (November 23, 
2010).
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    On February 2, 2011, the Commission proposed an interpretation of 
the definition of ``security-based swap execution facility,'' as well 
as rules relating to the registration and regulation of SB SEFs.\12\ 
The SB SEF Proposing Release includes proposals that are designed, in 
part, to address conflicts of interest affecting SB SEFs.\13\ The SB 
SEF Proposing Release seeks commenters' views regarding the interaction 
of proposed Regulation SB SEF with proposed Regulation MC. 
Specifically, the SB SEF Proposing Release asks commenters, taking into 
account both proposals, to address whether the proposals contained in 
proposed Regulation SB SEF would appropriately address conflicts of 
interest concerns for SB SEFs or whether they should be revised either 
as unnecessary or insufficient to address such conflicts of interest. 
The SB SEF Proposing Release also asks commenters to provide their 
views on whether there any redundancies or gaps for mitigating 
conflicts of interest for SB SEFs that should be addressed.\14\ The 
public comment period for proposed Regulation SB SEF expires on April 
4, 2011.
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    \12\ Securities Exchange Act Release No. 63825 (February 2, 
2011), 76 FR 10948 (February 28, 2011) (``SB SEF Proposing 
Release'').
    \13\ Specifically, proposed Rule 809 of proposed Regulation SB 
SEF would require a SB SEF to permit any security-based swap dealer, 
major security-based swap participant or broker to become a 
participant of the SB SEF as long as specified objective criteria 
are met; proposed Rule 811(b) would require a SB SEF to establish 
fair, objective, and not unreasonably discriminatory standards for 
granting impartial access to trading on the facility, and would 
specify that a SB SEF may not unreasonably prohibit or limit any 
person with respect to access to the services offered by the SB SEF 
by applying those standards in an unfair or unreasonably 
discriminatory manner; proposed Rule 811(b) also would require 
information on any grants, denials or limitations of access by the 
SB SEF to be reported on Form SB SEF (the proposed registration form 
for SB SEFs) and in the required annual report of the SB SEF's Chief 
Compliance Officer; proposed Rule 811(c) would require a SB SEF to 
establish a compositionally balanced swap review committee to 
determine the security-based swaps that would trade on the SB SEF, 
as well as the security-based swaps that should no longer trade on 
the SB SEF; with respect to the determination regarding whether a 
particular security-based swap is ``made available to trade,'' that 
determination would be made pursuant to objective standards to be 
established by the Commission; and proposed Rule 820 would require 
that no less than 20% of the total number of directors on the SB 
SEF's board be representative of SB SEF participants, and that at 
least one director on the SB SEF's board be representative of 
investors. See SB SEF Proposing Release, supra note 12.
    \14\ See SB SEF Proposing Release, supra note 12, 76 FR at 
10986.
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    On March 2, 2011, the Commission proposed rules regarding 
registration of clearing agencies and standards for the operation and 
governance of clearing agencies \15\ in accordance with Sections 763 
and 805 of the Dodd-Frank Act \16\ and Section 17A of the Exchange 
Act.\17\ Some of those proposed rules are designed, in part, to address 
conflicts of interest affecting clearing agencies, including security-
based swap clearing agencies.\18\ In particular, the Clearing Agency 
Proposing Release includes proposed rules that would require all 
clearing agencies to have policies and procedures to identify and 
address existing or potential conflicts of interest and to establish 
minimum governance standards for board or board committee members.\19\ 
In addition, the Clearing Agency Proposing Release includes proposed 
rules that would require clearing agencies to provide opportunity for 
membership access to persons that are not dealers or security-based 
swap dealers and persons that have net capital of at least $50 million, 
while also prohibiting the use of minimum portfolio size and minimum 
volume transaction thresholds as a condition for membership, in order 
to decrease the potential for formal membership requirements to be 
applied anti-competitively.\20\ The Clearing Agency Proposing Release 
seeks commenters' views regarding the interaction between proposed 
Regulation MC and the mitigation of conflicts provisions reflected in 
the Clearing Agency Proposing Release. The public comment period for 
the Clearing Agency Proposing Release closes on April 29, 2011.
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    \15\ Securities Exchange Act Release No. 64017 (March 2, 2011) 
(``Clearing Agency Proposing Release'').
    \16\ Public Law 111-203, Sections 763 and 805.
    \17\ 15 U.S.C. 78q-1.
    \18\ Specifically, proposed Rule 17Ad-25 under the Exchange Act 
would require that clearing agencies have policies and procedures to 
identify and address existing or potential conflicts of interest and 
to establish minimum governance standards for board or board 
committee members. Proposed Rules 17Ad-22(c)(5) and (c)(7) under the 
Exchange Act would require clearing agencies to provide an 
opportunity for membership access to persons who are not dealers or 
security-based swap dealers and persons who have net capital of at 
least $50 million. In addition, Proposed Rule 17Ad-22(c)(6) under 
the Exchange Act would prohibit the use of minimum portfolio size 
and minimum volume transaction thresholds as a condition for 
membership. See Clearing Agency Proposing Release, supra note 15.
    \19\ See Clearing Agency Proposing Release, supra note 15.
    \20\ See Clearing Agency Proposing Release, supra note 15.
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    When the Commission issued the SB SEF Proposing Release and 
Clearing

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Agency Proposing Release, it was mindful of its prior proposals under 
Regulation MC.\21\ However, the Commission recognizes that commenters 
who provided their views and suggestions on proposed Regulation MC did 
not have the benefit of considering the proposals in the SB SEF 
Proposing Release and the Clearing Agency Proposing Release, which also 
seek to address some potential conflicts of interest affecting these 
entities, when they submitted their comments.
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    \21\ See SB SEF Proposing Release, supra note 12, at notes 82, 
97, 127, 128, 134, 139, 141, 147, 172, 208, 269 and 570 and 
accompanying text, and 76 FR at 10979 and 10983-10986. See also 
Clearing Agency Proposing Release, supra note 15, at notes 45 and 
107 and accompanying text.
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    The Commission therefore is reopening the comment period to invite 
further comment on proposed Regulation MC, particularly in light of the 
additional proposals relating to mitigation of conflicts for security-
based swap clearing agencies and SB SEFs that are contained in the 
Clearing Agency Proposing Release and SB SEF Proposing Release, 
respectively.

II. Request for Comment

    Commenters are asked to consider the provisions designed to address 
conflicts of interest in the Regulation MC Proposing Release and in the 
Clearing Agency Proposing Release and the SB SEF Proposing Release, in 
the aggregate, when providing further comment on how the Commission 
should address potential conflicts of interest at security-based swap 
clearing agencies and SB SEFS, respectively. Are some or all of the 
proposed requirements in the SB SEF Proposing Release and the Clearing 
Agency Proposing Release and the requirements in the Regulation MC 
Proposing Release mutually supportive? Why or why not? Should any of 
the proposed requirements discussed in the SB SEF Proposing Release, 
the Clearing Agency Proposing Release, or the Regulation MC Proposing 
Release relating to conflicts of interest be revised in light of the 
proposed requirements relating to conflicts of interests in the other 
releases? If so, which requirements should be revised and how? Are the 
proposed requirements discussed in the SB SEF Proposing Release, the 
Clearing Agency Proposing Release, or the Regulation MC Proposing 
Release relating to conflicts of interest, when considered together, 
sufficient to mitigate conflicts of interest for SB SEFs, SBS exchanges 
or security-based swap clearing agencies, or should the Commission 
consider additional, or alternative, measures? Are any of the proposed 
requirements discussed in the SB SEF Proposing Release, the Clearing 
Agency Proposing Release, or the Regulation MC Proposing Release 
relating to conflicts of interest unnecessary in light of proposed 
requirements relating to conflicts of interest in the other releases? 
Why or why not?
    Comments may provide the Commission with further insights regarding 
what mechanisms, if any, may be necessary or appropriate to mitigate 
conflicts of interest and how the proposed requirements in the three 
proposals should be evaluated. Commenters should provide specific 
reasons and information to support their views and recommendations, 
including an analysis of why a recommendation would satisfy the 
statutory mandate contained in Section 765 of the Dodd-Frank Act 
regarding mitigation of conflicts of interest. The Commission asks that 
commenters, when possible, provide the Commission with empirical data 
to support their views.

    By the Commission.

    Dated: March 3, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-5183 Filed 3-7-11; 8:45 am]
BILLING CODE 8011-01-P