[Federal Register Volume 86, Number 94 (Tuesday, May 18, 2021)]
[Notices]
[Pages 27005-27008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10390]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91876; File No. SR-FINRA-2021-009]


Self-Regulatory Organizations; Financial Industry Regulatory 
Authority, Inc.; Notice of Filing of a Proposed Rule Change To Adopt a 
Supplemental Liquidity Schedule, and Instructions Thereto, Pursuant to 
FINRA Rule 4524 (Supplemental FOCUS Information)

May 12, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on April 30, 2021, the Financial Industry Regulatory Authority, Inc. 
(``FINRA'') filed with the Securities and Exchange Commission (``SEC'' 
or ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by FINRA. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    FINRA is proposing to adopt a Supplemental Liquidity Schedule, and 
Instructions thereto, pursuant to FINRA Rule 4524 (Supplemental FOCUS 
Information).
    The text of the proposed rule change is available on FINRA's 
website at http://www.finra.org, at the principal office of FINRA and 
at the Commission's Public Reference Room.

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

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

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

1. Purpose
    FINRA Rule 4524 provides in part that, as a supplement to filing 
FOCUS Reports required pursuant to SEA Rule 17a-5 \3\ and FINRA Rule 
2010, each member, as FINRA shall designate, shall file such additional 
financial or operational schedules or reports as FINRA may deem 
necessary or appropriate for the protection of investors or in the 
public interest. Pursuant to FINRA Rule 4524, FINRA is proposing to 
adopt a Supplemental Liquidity Schedule (``SLS''), and Instructions 
thereto (the ``Instructions'').\4\ The proposed SLS, which would be 
filed as a supplement to the FOCUS Report, is tailored to apply only to 
members with the largest customer and counterparty exposures, as 
discussed further below. The SLS is designed to improve FINRA's ability 
to monitor for events that signal an adverse change in the liquidity 
risk of the members that would be subject to the requirement.
---------------------------------------------------------------------------

    \3\ 17 CFR 240.17a-5 (hereinafter cited as SEA ``Rule 17a-5''). 
SEA Rule 17a-5 governs financial and operational reporting by 
brokers and dealers. Members are required to file with FINRA, 
through the eFOCUS System, reports concerning their financial and 
operational status using SEC Form X-17A-5 (the ``FOCUS Report''). 
See, e.g., Information Notice, November 23, 2020 (2021 and First 
Quarter of 2022 Report Filing Due Dates); Regulatory Notice 18-38 
(November 2018) (Amendments to the SEC's Financial Reporting 
Requirements--eFOCUS System Updates and Annual Audit Requirements). 
``FOCUS'' stands for Financial and Operational Combined Uniform 
Single.
    \4\ The proposed SLS and Instructions are included as Exhibit 3 
to this rule filing.
---------------------------------------------------------------------------

    Effective monitoring of liquidity and funding risks is an essential 
element of members' financial responsibility and an ongoing focus for 
FINRA's financial supervision programs. Liquidity and funding stress 
was a significant factor in the financial crisis of 2008.\5\ Since that 
time, FINRA has looked closely at members' liquidity and funding risk 
management practices.\6\ Regulatory Notice 10-57 expressed FINRA's 
expectation that members develop and maintain robust funding and 
liquidity risk management practices and discussed results of 
examinations that FINRA had conducted of the practices of selected 
members. In addition, Regulatory Notice 15-33 provided guidance on 
liquidity risk management practices and described FINRA's review of 
policies and practices at selected members related to managing 
liquidity needs in a stressed environment. FINRA believes that the 
proposed SLS is a logical complement to these ongoing priorities and 
guidance that FINRA has communicated to members and would provide 
essential information about members' sources and uses of liquidity to 
enable FINRA to better understand their liquidity profile. FINRA notes 
that events in connection with market volatility and other stress 
stemming from the COVID-19 pandemic,\7\ and events such as the extreme 
price volatility of certain stocks in January 2021,\8\ have reinforced 
the importance of effective liquidity risk monitoring. As such, FINRA 
believes that the proposed SLS is necessary to enhance its ongoing 
monitoring of members' liquidity risk and to have additional 
information that can be used to assess the impact of stress events on a 
member's liquidity. Members that would be subject to the SLS 
requirement would provide detailed reporting, using the SLS, as to 
their:
---------------------------------------------------------------------------

    \5\ See, e.g., Final Report of the National Commission on the 
Causes of the Financial and Economic Crisis in the United States 
(January 2011), available at: <https://fraser.stlouisfed.org/title/financial-crisis-inquiry-report-5034>.
    \6\ See Regulatory Notice 10-57 (November 2010) (Risk 
Management) and Regulatory Notice 15-33 (September 2015) (Liquidity 
Risk). However, even prior to the financial crisis, FINRA noted the 
importance of risk management practices. See, e.g., Notice to 
Members 99-92 (November 1999) (Risk Management Practices) (setting 
forth a joint statement by the SEC, NASD and NYSE on broker-dealer 
risk management practices). FINRA has also discussed liquidity risk 
in its Annual Regulatory and Examination Priorities Letters. See, 
e.g., 2019 Annual Risk Monitoring and Examination Priorities Letter, 
available at: <finra.org>.
    \7\ See, e.g., S.P. Kothari et al., U.S. Credit Markets: 
Interconnectedness and the Effects of the COVID-19 Economic Shock 
(October 2020) (report of the SEC Division of Economic and Risk 
Analysis regarding market stress during the COVID-19 shock of March 
2020), available at: <https://www.sec.gov/files/US-Credit-Markets_COVID-19_Report.pdf>.
    \8\ See Acting Chair Allison Herren Lee, Commissioners Hester M. 
Peirce, Elad L. Roisman, and Caroline A. Crenshaw, Public Statement 
Regarding Recent Market Volatility (January 29, 2021), available at: 
<https://www.sec.gov/news/public-statement/joint-statement-market-volatility-2021-01-29>.
---------------------------------------------------------------------------

     Reverse repurchase and repurchase agreements;
     securities borrowed and securities loaned;
     non-cash reverse repurchase and securities borrowed 
transactions;
     non-cash repurchase and securities loaned transactions;
     bank loan and other committed and uncommitted credit 
facilities;
     total available collateral in the member's custody;
     margin and non-purpose loans;

[[Page 27006]]

     collateral securing margin loans;
     deposits at clearing organizations; and
     cash and securities received and delivered on derivative 
transactions not cleared through a central clearing counterparty 
(``CCP'').
    In developing the proposed SLS, FINRA has engaged in extensive 
outreach and discussions with industry participants. In January 2018, 
FINRA published an earlier version of the proposed SLS for comment \9\ 
and, as discussed further below, in response to comments, and based on 
dialogue with and feedback from industry participants, has tailored and 
clarified the proposed SLS and Instructions. Under the proposed SLS, 
unless otherwise permitted by FINRA in writing, the SLS would be 
required to be filed by each carrying member with $25 million or more 
in free credit balances, as defined under SEA Rule 15c3-3(a)(8),\10\ 
and by each member whose aggregate amount outstanding under repurchase 
agreements, securities loan contracts and bank loans is equal to or 
greater than $1 billion, as reported on the member's most recently 
filed FOCUS report. The SLS must be completed as of the last business 
day of each month (the ``SLS date'') and filed within 24 business days 
after the end of the month. A member need not file the SLS for any 
period where the member does not meet the $25 million or $1 billion 
thresholds.\11\
---------------------------------------------------------------------------

    \9\ See Regulatory Notice 18-02 (January 2018) (Liquidity 
Reporting and Notification).
    \10\ 17 CFR 240.15c3-3 (hereinafter cited as SEA ``Rule 15c3-
3'').
    \11\ FINRA notes that members that have elected to be treated as 
capital acquisition brokers (``CABs'') would be subject to the rule 
change to the extent that FINRA Rule 4524, pursuant to CAB Rule 
452(b), applies to CABs. However, the proposed rule change would 
unlikely impact CABs. The proposed $25 million free credit balances 
threshold applies to carrying members and as such would not affect 
CABs because, pursuant to CAB Rule 016(c)(2), CABs are prohibited 
among other things from carrying customer accounts, or from holding 
or handling customer funds or securities. With respect to the 
proposed $1 billion threshold, FINRA believes that it is unlikely 
any CABs would meet this level of financing given the limited nature 
of their business under the CAB rules.
    The proposed rule change would not apply to funding portal 
members because such members are not subject to Rule 4524. Even if 
Rule 4524 were to apply, the rule change would unlikely affect 
funding portal members because, pursuant to Regulation Crowdfunding 
Rule 300(c)(2)(iv), such members are prohibited from holding, 
possessing, managing or otherwise handling investor funds or 
securities. Further, again by virtue of the limited nature of their 
business, funding portal members are unlikely to meet the proposed 
$1 billion threshold.
---------------------------------------------------------------------------

    FINRA notes that, with these $25 million and $1 billion thresholds, 
the proposal would apply to approximately 85 to 100 members that have 
the largest customer and counterparty exposures, and as such, is 
tailored to apply to members whose liquidity events could have the 
greatest potential impact on customers, counterparties, and markets.
    If the Commission approves the proposed rule change, FINRA will 
announce the effective date of the proposed rule change in a Regulatory 
Notice to be published no later than 30 days following Commission 
approval. The effective date will be no later than 180 days following 
publication of the Regulatory Notice announcing Commission approval.
2. Statutory Basis
    The proposed rule change is consistent with the provisions of 
Section 15A(b)(6) of the Act,\12\ which requires, among other things, 
that FINRA rules must be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, and, in general, to protect investors and the 
public interest. Consistent with the provisions of the Act, the 
proposed rule change will enable FINRA to more effectively monitor the 
liquidity risk of members with the largest customer and counterparty 
exposures, thereby enhancing FINRA's ability to supervise the financial 
responsibility of larger member firms and maintain investor protection.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

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

    FINRA does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed SLS is designed to 
improve FINRA's ability to monitor liquidity risk of the members that 
would be subject to the requirement and provide additional warning of 
market stress. FINRA has designed the proposed SLS to achieve its 
intended and necessary regulatory purpose while minimizing the burden 
on firms. Ready access to the information is important for FINRA to 
efficiently monitor on an ongoing basis the liquidity profile of 
members. In particular, the information would facilitate FINRA's 
efforts to understand and respond to firms that may appear similar 
based on their balance sheet, but in fact have different liquidity risk 
profiles, which could negatively impact their ability to fund their 
operations during periods of market or other stress events. In the 
absence of this reporting requirement, FINRA would need to request this 
information repeatedly on a firm-by-firm basis as need arises, 
resulting in similar, or even potentially larger, costs for the firms.
    FINRA notes that, as discussed above, the proposal would apply to 
approximately 85 to 100 members that meet the thresholds as defined by 
the proposal. Given that these firms have the largest customer and 
counterparty exposures, they are likely to have the largest potential 
liquidity risk, to which the proposed SLS is aimed at providing 
increased monitoring and transparency. The underlying information 
required to complete the proposed SLS should be readily available to 
members due to members' obligations to maintain books and records for 
those items required to be reported on the SLS.
    FINRA further notes that out of the approximately 85 to 100 firms 
for which the proposal would apply to, about one quarter of those are 
members of large bank holding companies (``BHCs''). This subset of 
firms are required to provide similar information in reporting at the 
BHC and material entity level to the Federal Reserve Board.\13\ FINRA 
believes that the threshold for the SLS reporting requirement may 
result in some competitive effects, for firms that fall above or below 
the reporting threshold, in addition to firms that do and do not report 
overlapping information through the FR 2052a report. However, the 
overall direction of these effects is not clear, and FINRA does not 
believe the effects are significant when weighed against the value of 
the SLS report. FINRA has reviewed in this regard the information 
requested by the proposed SLS versus the information requested by the 
FR 2052a report. A broker-dealer that is a material entity within a BHC 
may report some of the same information under this proposal that the 
broker-dealer provides for purposes of the FR 2052a report.\14\ To the 
extent there is some overlap in reporting, FINRA expects that 
additional costs from providing the information for purposes of the SLS 
would be minimal. These firms should be able to rely on their existing 
compliance systems and infrastructure for the reporting of these items. 
However, some costs are anticipated due to differences in the 
information required for the two reports and differences in the 
frequency of the

[[Page 27007]]

reporting. Where this reporting is not duplicative, firms will incur 
some start-up costs to establish the reporting system and then ongoing 
costs in providing the information, and the relevant supervisory and 
compliance systems. In contrast, firms that are not within a BHC will 
incur new start-up costs that may be greater than the incremental 
start-up costs of firm within a BHC, while firms below the threshold 
will not incur these costs. Nonetheless, FINRA believes the thresholds 
are well tailored to require disclosure from firms whose liquidity 
impacts substantially outweigh the collection and reporting costs of 
the SLS.
---------------------------------------------------------------------------

    \13\ This reporting is done using the Complex Institution 
Liquidity Monitoring Report (FR 2052a) (hereinafter referred to as 
the ``FR 2052a report''), available at: <https://www.federalreserve.gov/apps/reportforms/default.aspx>.
    \14\ The instructions to the FR 2052a report provide that ``. . 
. each material entity required to report will report on a 
consolidated basis,'' except as otherwise specified in the 
instructions.
---------------------------------------------------------------------------

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

    The proposed rule change was published for comment in Regulatory 
Notice 18-02 (January 2018) (the ``Notice''). Three comments were 
received in response to the Regulatory Notice.\15\ Exhibit 2a is a copy 
of the Regulatory Notice. Exhibit 2b contains copies of the comment 
letters received in response to the Regulatory Notice. Below is a 
summary of the comments and FINRA's responses.
---------------------------------------------------------------------------

    \15\ See Letter from Allen Riggs, CFO, Vining Sparks IBP, L.P., 
to Jennifer Piorko Mitchell, Office of the Corporate Secretary, 
FINRA, dated February 21, 2018 (``Vining Sparks''); Letter from Jon 
Zindel, Chief Financial Officer, William Blair & Company, LLC, to 
Jennifer Piorko Mitchell, Office of the Corporate Secretary, FINRA, 
dated March 7, 2018 (``William Blair''); and Letter from Mary Kay 
Scucci, Managing Director, Securities Industry and Financial Markets 
Association, to Jennifer Piorko Mitchell, Office of the Corporate 
Secretary, FINRA, dated March 8, 2018 (``SIFMA'').
---------------------------------------------------------------------------

    In the Notice, in addition to seeking comment on a proposed earlier 
version of the SLS, FINRA sought comment on proposed amendments to 
FINRA Rule 4521 (Notifications, Questionnaires and Reports) that would 
have imposed additional requirements on members subject to the SLS to 
notify FINRA no more than 48 hours after specified events that may 
signal an adverse change in liquidity risk. Most of the concerns 
expressed by commenters focused on these proposed amendments to Rule 
4521. In particular, SIFMA and Vining Sparks expressed concern that the 
proposed amendments were complex and operationally burdensome, were in 
need of further clarification, should be tailored to permit members to 
use models specific to their firms, or should be aligned or coordinated 
with potential future Commission action in the area of broker-dealer 
liquidity and risk monitoring. In response, FINRA notes that it has 
been engaging, and plans to continue to engage, with industry 
participants and with other regulators with regard to these concerns 
and will give further consideration as to potential rule changes to 
address effective liquidity monitoring. As such, FINRA is not at this 
time proposing amendments to Rule 4521 as part of the proposed rule 
change.
    With regard to the proposed SLS as originally proposed in the 
Notice, all three commenters suggested clarifications and revisions. 
William Blair and Vining Sparks expressed concern that, because the $25 
million threshold as proposed in the Notice would have been based on 
``total credits'' under Exhibit A of Rule 15c3-3, smaller firms that 
engage mostly in institutional trades on a delivery versus payment/
receive versus payment (``DVP/RVP'') basis would fall within the 
proposed requirement by virtue of the credits they are obliged to 
report in connection with ``failed to receive'' transactions. 
Commenters believed this would include firms whose business activities 
do not present significant liquidity risk in the SLS reporting 
requirement. In response, FINRA has engaged with industry participants 
and has revised the $25 million threshold to reference ``free credit 
balances'' as defined under SEA Rule 15c3-3(a)(8). FINRA believes that 
referencing free credit balances for the $25 million threshold more 
directly identifies firms that should be subject to the SLS and is 
consistent with FINRA's intent to reach only members with the highest 
potential liquidity risk. As discussed above, the proposal would apply 
to approximately 85 to 100 firms, generally FINRA's largest members, 
which is the appropriate scope in light of its regulatory purpose. 
Vining Sparks expressed concern that the SLS, as originally proposed in 
the Notice, would require disclosure of the names of the reporting 
member's top five counterparties for certain of the specified 
categories of information, which Vining Sparks suggested could raise 
privacy and confidentiality concerns. In response, FINRA has revised 
the Instructions to the proposed SLS so that members would have the 
option to specify a counterparty type or name in the portions of the 
SLS that request top five counterparty information. FINRA believes that 
permitting members this flexibility is appropriate because specifying 
counterparty types rather than counterparty names achieves the overall 
goal of helping to understand and monitor the impact from 
counterparties on the liquidity profile of the member submitting the 
SLS. Further, FINRA notes that it has the ability to request further 
information as to any counterparty transaction should such be 
warranted.
    SIFMA expressed concern that the purpose of and need for the SLS as 
proposed in the Notice is unclear, that the SLS would require the 
disclosure of information that should be kept confidential, that the 
proposal is duplicative of requirements that apply to firms that are 
already part of BHCs, that the proposal should not go forward until the 
SEC acts in the area of liquidity monitoring, and that the information 
required on the proposed SLS is unhelpful or unnecessary to 
understanding a firm's liquidity or is operationally burdensome to 
track. FINRA engaged with industry participants and SIFMA to discuss 
these concerns.
    FINRA believes that the purpose of, and regulatory need for, the 
proposal, as set forth in the Notice and as reiterated in this filing, 
is clear. To address the concerns expressed by commenters with regard 
to the potential burdens of the proposal, FINRA, based on extensive 
discussions with industry participants, has made several revisions to 
the proposed SLS. For example, FINRA has revised the proposed SLS so 
that members with de minimis total reverse repurchase or repurchase 
agreements may elect not to complete the securities collateral 
subcategories in Lines 1 through 5 under Reverse Repurchase and 
Repurchase Agreements, and may elect not to complete the Top Five 
Counterparties portion that corresponds with that section.\16\ As 
revised, also under the Reverse Repurchase and Repurchase Agreements 
section, the proposed SLS would permit members flexibility to allocate 
contracts collateralized by more than two security types among those 
types of collateral for purposes of their reporting. With regard to 
reporting counterparties, FINRA has revised the SLS so that members 
electing to report counterparties by type rather than by name will be 
permitted to use the counterparty classifications and definitions given 
in the FR 2052a report, thereby helping members in BHCs align their SLS 
reporting with the FR 2052a report. Similarly, FINRA has added language 
to the proposed SLS designed to align reporting for non-cash

[[Page 27008]]

and collateral upgrade transactions with members' other regulatory 
reporting.\17\
---------------------------------------------------------------------------

    \16\ Members would need to complete Lines 6a, 6b, 6c and 7, as 
applicable. FINRA has made a corresponding revision to the 
Securities Borrowed and Securities Loaned section.
    \17\ FINRA has made additional miscellaneous revisions to the 
SLS designed to clarify categories in the Instructions such as 
``term loans'' and ``deposits at clearing organizations.'' Further, 
in the Instructions, FINRA has also revised the Bank Loan and Other 
Committed and Uncommitted Credit Facilities section to clarify that 
Line 4 under that section (Drawn Amounts of Uncommitted Credit 
Facilities) includes, for example, commercial paper.
---------------------------------------------------------------------------

    SIFMA requested that FINRA further clarify the reporting date for 
the SLS, and suggested that data should be reported as of month-end. In 
response, FINRA has revised the SLS to provide that the SLS must be 
completed as of the last business day of each month (as noted above, 
the SLS date) and filed within 24 business days after the end of the 
month. FINRA notes the 24 business days is meant to afford members 
additional time to file versus the 22 business days as proposed in the 
Notice. SIFMA requested clarification as to who within a member would 
be responsible for completing the proposed SLS. In response, it is not 
FINRA's intention to impose an additional potential burden by 
designating specific persons within the firm that would need to 
complete the SLS. Given the SLS is intended as a supplement to the 
FOCUS reporting for which a member is already responsible, FINRA 
understands that members may handle the SLS as a financial and 
operational report consistent with their FOCUS and other financial-
related reporting processes and obligations.

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

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

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-FINRA-2021-009 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-FINRA-2021-009. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10 a.m. and 3 
p.m. Copies of such filing also will be available for inspection and 
copying at the principal office of FINRA. All comments received will be 
posted without change. Persons submitting comments are cautioned that 
we do not redact or edit personal identifying information from comment 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File Number SR-
FINRA-2021-009 and should be submitted on or before June 8, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\18\
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-10390 Filed 5-17-21; 8:45 am]
BILLING CODE 8011-01-P


