Morgan Lewis

Temporary Exemption from Certain SEC Financial Responsibility Rules Amendments

LawFlash/Client Alert

  • published on:

    10/18/2013
  • by:

    Investment Management Practice

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The limited exemption will provide broker-dealers with more time to make necessary operational or systems changes.

On October 17, the Securities and Exchange Commission (SEC) issued an order[1] providing a temporary exemption for broker-dealers from certain of the financial responsibility rule amendments that were adopted on July 30, 2013. At that time, the SEC approved amendments to the net capital rule, the customer protection rule, the books and records rules, and the notification rules applicable to broker-dealers under the Securities Exchange Act of 1934.[2] The Financial Responsibility Rules Amendments will, among other things, affect a broker-dealer’s practices with respect to (1) proprietary accounts of broker-dealers, (2) the banks at which special reserve deposits may be deposited and maintained, (3) the holding of futures positions in a securities portfolio margin account, (4) securities lending and borrowing activities, (5) the treatment of free credit balances in connection with sweep programs, and (6) certain net capital calculations.[3] The Amendments were scheduled to take effect on October 21, 2013.

In light of the Amendments’ upcoming compliance deadline, some firms have determined that they will not be able to complete the significant operational and systems changes necessary to comply with certain of the Financial Responsibility Rules Amendments. As a result, the SEC issued its October 17 order, which provides broker-dealers a temporary exemption from some of the requirements of the Financial Responsibility Rules Amendments. The temporary exemption will sunset on March 3, 2014.

The rules subject to this time-limited exemption are highlighted below.

Rules Covered by the Temporary Exemption

Rule 15c3-3, except paragraph (j)(1), and Rule 15c3-3a

The changes to Rule 15c3-3 include provisions relating to the following:

  • Reserve calculations and possession or control requirements regarding proprietary accounts of broker-dealers
  • Reserve account requirements with respect to deposits at affiliated and unaffiliated banks
  • Handling of free credit balances and sweep programs
  • Treatment of “proprietary accounts” under the Commodity Exchange Act
  • Treatment of futures positions in securities portfolio margin accounts

Rule 17a-3

The changes to Rule 17a-3 cover the documentation of risk management controls.

Rule 17a-4

The changes to Rule 17a-4 deal with the notification that broker-dealers must provide in connection with a broker-dealer’s securities lending and borrowing activities.

Rule 15c3-1(c)(2)(iv)(E)(2)

This rule covers the required deductions in connection with cash and securities held in a securities account at a carrying broker or dealer, except where the account has been subordinated.

Rules Not Covered by the Temporary Exemption

The SEC is not granting a temporary exemption from the new requirements listed below, which were adopted in the Financial Responsibility Rules Amendments.

Rule 15c3-3(j)(1)

This provision involves a broker-dealer’s requirement to inform a customer regarding the amount and availability of the customer’s free credit balances.

The new requirements in Rule 15c3-1 (other than the requirement in Rule 15c3-1(c)(2)(iv)(E)(2))

The amendments to Rule 15c3-1 include the following:

  • The treatment of expense sharing agreements
  • The treatment of short-term capital contributions
  • A broker-dealer’s requirements in connection with that broker-dealer’s being insolvent
  • Temporary restrictions on capital withdrawals

The new requirements in Rule 17a-11

The amendment to Rule 17a-11 requires a broker-dealer to provide notice to the SEC and its designated examining authority in the event it becomes insolvent.

Conclusion

The temporary exemption should provide broker-dealers with additional time in which to make changes to their operations and systems to come into compliance with the Financial Responsibility Rules Amendments. In addition, the temporary exemption should provide the SEC with more time in which to address additional interpretive questions that broker-dealers may have regarding their requirements under the Amendments.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis attorneys:

Washington, D.C.
John V. Ayanian
Mark D. Fitterman
Steven W. Stone
Beth D. Kiesewetter
Ignacio A. Sandoval

New York
William Iwaschuk

Miami
Ethan W. Johnson

Chicago
Michael M. Philipp


[1]. See Order Providing Broker-Dealers a Temporary Exemption from the Requirements of Certain New Amendments to the Financial Responsibility Rules for Broker-Dealers under the Securities Exchange Act of 1934, Release No. 34-70701 (Oct. 17, 2013), available here.

[2]. See Financial Responsibility Rules for Broker-Dealers, Release No. 34-70072, 78 Fed. Reg. 51,824 (Aug. 21, 2013), available here [hereinafter Financial Responsibility Rules Amendments or Amendments].

[3]. For more information on the Amendments, see our August 27, 2013 LawFlash, “SEC Amends Financial Responsibility Rules for Broker-Dealers,” available here.