The reproposed amendments to Rule 4210 attempt to address commenters’ concerns that the original proposed rule would impact business activity in the TBA market.
On September 24, the Financial Industry Regulatory Authority (FINRA) proposed a revised rule (the “Reproposal”) that would implement, among other things, margin collection requirements for (1) To Be Announced (TBA) transactions, including adjustable rate mortgage (ARM) transactions; (2) Specified Pool Transactions; and (3) transactions in Collateralized Mortgage Obligations (CMOs) with forward settlement dates that exceed three business days.
Consistent with the original proposed rule issued in January 2014 (the “Original Proposal”), FINRA reiterated that the proposed amendments are based on best practices adopted by the Treasury Market Practices Group (TMPG) of the Federal Reserve Bank of New York (FRBNY) and are designed to reduce counterparty credit risk in the TBA market.
The Reproposal incorporates a number of revisions to address market participants’ concerns that the Original Proposal would impede business activity in the TBA market. In the preamble to the Reproposal, FINRA indicates that it has revised the proposal “to ameliorate its impact on business activity and to address the concerns of smaller customers that do not pose material risk to the market as a whole, in particular those engaging in non-margined, cash account business.” Specifically, FINRA added a conditional exception to the proposed margin requirements for any counterparty with gross open positions amounting to $2.5 million or less, as well as specified exceptions to the maintenance margin requirements and modifications to the de minimis transfer provisions.
According to FINRA, most trading in agency mortgage-backed securities (MBS) takes place in the TBA market, and agency MBS is one of the largest fixed income markets. FINRA explains, however, that the TBA market has historically been one of the few markets “where a significant portion of activity is unmargined, thereby creating a potential risk arising from counterparty exposure.” The TMPG similarly commented that a default on forward-settling agency MBS transactions could subject other market participants in the TBA market to significant losses and risks. Accordingly, in October 2013, the TMPG recommended that TBA market participants should “substantially complete” the transition to a system of margining by December 31, 2013. As a result, many market participants transitioned to margining by negotiating and entering into Master Securities Forward Transaction Agreements (MSFTAs) or other arrangements that provide a basic contractual framework, including a framework (consistent with the TMPG’s recommendations) for the bilateral exchange of margin for forward and other delayed delivery transactions involving mortgage-backed and asset-backed securities.
FINRA’s Reproposal retains the majority of substantive requirements that were set out in the Original Proposal. For example, FINRA members would still be required to collect variation margin for subject transactions when the current exposure exceeds $250,000. In response to comments, however, FINRA clarified that any deficiency or mark-to-market loss with a single counterparty shall not give rise to any margin requirement if the aggregate of such amounts with the counterparty does not exceed $250,000. Members also would be required to collect maintenance margin (i.e., initial margin) from non-exempt counterparties However, for exempt accounts which include, but are not limited to, broker-dealers, specified institutions, and high net worth persons (“exempt accounts”), no maintenance margin is required to be collected.
Key Differences Between Original Proposal and Reproposal
- Covered Agency Transactions. FINRA retained the definition of Covered Agency Transactions largely as published in the Original Proposal. Such transactions include TBA transactions (including ARM transactions) and Specified Pool Transactions, where the difference between the trade date and the contractual settlement date is greater than one business day, as well as CMO transactions (issued in conformity with a program of an agency), where the difference between the trade date and the contractual settlement date is greater than three business days.
- Election for Certain Counterparties. A FINRA member may elect not to apply margin requirements with respect to Covered Agency Transactions to any counterparty that is a “Federal banking agency” (as defined under the Federal Deposit Insurance Act) central bank; multinational central bank; foreign sovereign; multilateral development bank; or the Bank for International Settlements. A FINRA member may make this election provided that the member makes a written determination of such counterparty’s risk limits (as described further below), which the member would be required to enforce.
- Risk Limits. A firm’s credit risk officer or credit risk committee would be required to make a written determination of the risk limit applicable to each counterparty to a transaction in a Covered Agency Transaction that is in accordance with the member’s written risk policies and procedures. In response to comments, the Reproposal establishes a new Supplementary Material .05 that provides, for purposes of risk determinations, that
- members engaging in transactions with advisory clients of a registered investment adviser may elect to make the risk limit determination at the investment adviser level, except for any account or commonly controlled accounts that exceed greater than 10% of the regulatory assets under management reported on the adviser’s most recent Form ADV;
- members of limited size and resources may designate an appropriately registered principal to make the risk limit determinations;
- members may base their determination of risk limits on consideration of all products involved in the member’s business with the counterparty, provided that the member makes a daily record of the counterparty’s risk; and
- members must regularly evaluate the adequacy of margin required by the rule with respect to a particular counterparty account or all its counterparty accounts and adjust the margin requirements as necessary.
In addition to applying to Covered Agency Transactions, FINRA revised the Supplementary Material .05 to apply to transactions with exempt accounts that involve certain “good faith” securities” (paragraph (e)(2)(F)) and transactions with exempt accounts that involve highly rated foreign sovereign debt securities and investment grade debt securities (paragraph (e)(2)(G)).
- Transactions with Exempt Accounts. As in the Original Proposal, maintenance margin would not be required for transactions with exempt accounts. Variation margin would still be mandated for such transactions, and firms would be required to deduct the amount of any uncollected mark-to-market loss when computing the firm’s net capital pursuant to Rule 15c3-1 under the Securities Exchange Act of 1934.
- Transactions with Non-Exempt Accounts. As in the Original Proposal, for such transactions, member firms would be required to collect variation margin and maintenance margin equal to 2% of the value of the securities—regardless of the type, volatility, or tenor of the security. However, FINRA revised the Original Proposal to provide relief from the maintenance margin collection requirement when the original contractual settlement for the Covered Agency Transaction is in the month of the trade date for such transaction (or in the month succeeding the trade date for such transaction in cases where the customer regularly settles its Covered Agency Transactions on a Delivery Versus Payment (DVP) basis or for cash). The exception, however, does not apply to non-exempt accounts engaging in “dollar rolls,” “round robin” trades, or other financing techniques for its Covered Agency Transactions.
- Concentrated Exposures. The Reproposal maintains the treatment of concentrated exposures described in the Original Proposal. Accordingly, member firms would be required to provide written notification to FINRA and would be prohibited from entering into any new transactions that could increase credit exposure if net capital deductions over a five business day period exceed, (1) for a single account or group of commonly controlled accounts, 5% of the member’s tentative net capital; or (2) for all accounts combined, 25% of the member’s tentative net capital. In addition, the Reproposal clarifies that the foregoing limits are intended to include Covered Agency Transactions, de minimis transfer amounts, and amounts otherwise excepted for gross open positions of $2.5 million or less in the aggregate (as discussed further below).
- Exceptions from the Reproposed Margin Requirements. The Proposed Rule includes two exceptions from the margin requirements:
- Covered Agency Transactions cleared through a registered clearing agency.
- Covered Agency Transactions with a counterparty that amount to gross open positions of $2.5 million or less in the aggregate—provided, among other things, that the original contractual settlement for all such transactions is in the month of the trade date for such transactions, or in the month succeeding the trade date for such transactions where the counterparty regularly settles its Covered Agency Transactions on a DVP basis or for cash.
FINRA explained that it added the second exception to address commenters’ concerns that the proposed margin requirements “would unnecessarily constrain non-risky business activity of market participants or otherwise unnecessarily alter market participants’ trading decisions.”
At its July meeting, the FINRA Board of Governors authorized the filing of the proposed rule change with the SEC. If the SEC approves the proposed rule change, FINRA will announce its effective date in a Regulatory Notice to be published no later than 60 days following SEC approval. The effective date will be no later than 180 days following publication of the Regulatory Notice announcing Commission approval.
The recently reproposed amendments to FINRA Rule 4210 appear to address some of the commenters’ concerns regarding the impact of the Original Proposal on business activity in the TBA market, particularly for smaller market participants that do not exceed the thresholds set forth in the Reproposal. However, given the costs of compliance—including the system and infrastructure costs associated with bilateral margining—these requirements are still likely to have a significant impact on the market and many of its participants.