# Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-31511 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 31, 2014 - **Citation:** 79 FR 5536 ## Text DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 44 [Docket No. OCC-2011-0014] RIN 1557-AD44 BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM 12 CFR Part 248 [Docket No. R-1432] RIN 7100 AD82 FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 351 RIN 3064-AD85 SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 255 [Release No. BHCA-1; File No. S7-41-11] RIN 3235-AL07 Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds AGENCY: Office of the Comptroller of the Currency, Treasury (“OCC”); Board of Governors of the Federal Reserve System (“Board”); Federal Deposit Insurance Corporation (“FDIC”); and Securities and Exchange Commission (“SEC”). ACTION: Final rule. SUMMARY: The OCC, Board, FDIC, and SEC (individually, an “Agency,” and collectively, “the Agencies”) are adopting a rule that would implement section 13 of the BHC Act, which was added by section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). Section 13 contains certain prohibitions and restrictions on the ability of a banking entity and nonbank financial company supervised by the Board to engage in proprietary trading and have certain interests in, or relationships with, a hedge fund or private equity fund. DATES: The final rule is effective April 1, 2014. FOR FURTHER INFORMATION CONTACT: OCC: Ursula Pfeil, Counsel, or Deborah Katz, Assistant Director, Legislative and Regulatory Activities Division, (202) 649-5490; Ted Dowd, Assistant Director, or Roman Goldstein, Senior Attorney, Securities and Corporate Practices Division, (202) 649-5510; Kurt Wilhelm, Director for Financial Markets Group, (202) 649-6360; Stephanie Boccio, Technical Expert for Credit and Market Risk Group, (202) 649-6360, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219. Board: Christopher M. Paridon, Counsel, (202) 452-3274, or Anna M. Harrington, Senior Attorney, Legal Division, (202) 452-6406; Mark E. Van Der Weide, Deputy Director, Division of Bank Supervision and Regulation, (202) 452-2263; or Sean D. Campbell, Deputy Associate Director, Division of Research and Statistics, (202) 452-3760, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. FDIC: Bobby R. Bean, Associate Director, bbean@fdic.gov , or Karl R. Reitz, Chief, Capital Markets Strategies Section, kreitz@fdic.gov, Capital Markets Branch, Division of Risk Management Supervision, (202) 898-6888; Michael B. Phillips, Counsel, mphillips@fdic.gov , or Gregory S. Feder, Counsel, gfeder@fdic.gov , Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. SEC: Josephine J. Tao, Assistant Director, Angela R. Moudy, Branch Chief, John Guidroz, Branch Chief, Jennifer Palmer or Lisa Skrzycki, Attorney Advisors, Office of Trading Practices, Catherine McGuire, Counsel, Division of Trading and Markets, (202) 551-5777; W. Danforth Townley, Attorney Fellow, Jane H. Kim, Brian McLaughlin Johnson or Marian Fowler, Senior Counsels, Division of Investment Management, (202) 551-6787; David Beaning, Special Counsel, Office of Structured Finance, Division of Corporation Finance, (202) 551-3850; John Cross, Office of Municipal Securities, (202) 551-5680; or Adam Yonce, Assistant Director, or Matthew Kozora, Financial Economist, Division of Economic and Risk Analysis, (202) 551-6600, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Notice of Proposed Rulemaking III. Overview of Final Rule A. General Approach and Summary of Final Rule B. Proprietary Trading Restrictions C. Restrictions on Covered Fund Activities and Investments D. Metrics Reporting Requirement E. Compliance Program Requirement IV. Final Rule A. Subpart B—Proprietary Trading Restrictions 1. Section __.3: Prohibition on Proprietary Trading and Related Definitions a. Definition of “Trading Account” b. Rebuttable Presumption for the Short-Term Trading Account c. Definition of “Financial Instrument” d. Proprietary Trading Exclusions 1. Repurchase and Reverse Repurchase Arrangements and Securities Lending 2. Liquidity Management Activities 3. Transactions of Derivatives Clearing Organizations and Clearing Agencies 4. Excluded Clearing-Related Activities of Clearinghouse Members 5. Satisfying an Existing Delivery Obligation 6. Satisfying an Obligation in Connection With a Judicial, Administrative, Self-Regulatory Organization, or Arbitration Proceeding 7. Acting Solely as Agent, Broker, or Custodian 8. Purchases or Sales Through a Deferred Compensation or Similar Plan 9. Collecting a Debt Previously Contracted 10. Other Requested Exclusions 2. Section __.4(a): Underwriting Exemption a. Introduction b. Overview 1. Proposed Underwriting Exemption 2. Comments on Proposed Underwriting Exemption 3. Final Underwriting Exemption c. Detailed Explanation of the Underwriting Exemption 1. Acting as an Underwriter for a Distribution of Securities a. Proposed Requirements That the Purchase or Sale Be Effected Solely in Connection With a Distribution of Securities for Which the Banking Entity Acts as an Underwriter and That the Covered Financial Position be a Security i. Proposed Definition of “Distribution” ii. Proposed Definition of “Underwriter” iii. Proposed Requirement That the Covered Financial Position Be a Security b. Comments on the Proposed Requirements That the Trade Be Effected Solely in Connection With a Distribution for Which the Banking Entity Is Acting as an Underwriter and That the Covered Financial Position Be a Security i. Definition of “Distribution” ii. Definition of “Underwriter” iii. “Solely in Connection With” Standard c. Final Requirement That the Banking Entity Act as an Underwriter for a Distribution of Securities and the Trading Desk's Underwriting Position Be Related to Such Distribution i. Definition of “Underwriting Position” ii. Definition of “Trading Desk” iii. Definition of “Distribution” iv. Definition of “Underwriter” v. Activities Conducted “in Connection With” a Distribution 2. Near Term Customer Demand Requirement a. Proposed Near Term Customer Demand Requirement b. Comments Regarding the Proposed Near Term Customer Demand Requirement c. Final Near Term Customer Demand Requirement 3. Compliance Program Requirement a. Proposed Compliance Program Requirement b. Comments on the Proposed Compliance Program Requirement c. Final Compliance Program Requirement 4. Compensation Requirement a. Proposed Compensation Requirement b. Comments on the Proposed Compensation Requirement c. Final Compensation Requirement 5. Registration Requirement a. Proposed Registration Requirement b. Comments on Proposed Registration Requirement c. Final Registration Requirement 6. Source of Revenue Requirement a. Proposed Source of Revenue Requirement b. Comments on the Proposed Source of Revenue Requirement c. Final Rule's Approach to Assessing Source of Revenue 3. Section __.4(b): Market-Making Exemption a. Introduction b. Overview 1. Proposed Market-Making Exemption 2. Comments on the Proposed Market-Making Exemption a. Comments on the Overall Scope of the Proposed Exemption b. Comments Regarding the Potential Market Impact of the Proposed Exemption 3. Final Market-Making Exemption c. Detailed Explanation of the Market-Making Exemption 1. Requirement to Routinely Stand Ready To Purchase And Sell a. Proposed Requirement To Hold Self Out b. Comments on the Proposed Requirement To Hold Self Out i. The Proposed Indicia ii. Treatment of Block Positioning Activity iii. Treatment of Anticipatory Market Making iv. High-Frequency Trading c. Final Requirement To Routinely Stand Ready To Purchase And Sell i. Definition of “Trading Desk” ii. Definitions of “Financial Exposure” and “Market-Maker Inventory” iii. Routinely Standing Ready To Buy and Sell 2. Near Term Customer Demand Requirement a. Proposed Near Term Customer Demand Requirement b. Comments Regarding the Proposed Near Term Customer Demand Requirement i. The Proposed Guidance for Determining Compliance With the Near Term Customer Demand Requirement ii. Potential Inventory Restrictions and Differences Across Asset Classes iii. Predicting Near Term Customer Demand iv. Potential Definitions of “Client,” “Customer,” or “Counterparty” v. Interdealer Trading and Trading for Price Discovery or To Test Market Depth vi. Inventory Management vii. Acting as an Authorized Participant or Market Maker in Exchange-Traded Funds viii. Arbitrage or Other Activities That Promote Price Transparency and Liquidity ix. Primary Dealer Activities x. New or Bespoke Products or Customized Hedging Contracts c. Final Near Term Customer Demand Requirement i. Definition of “Client,” “Customer,” and “Counterparty” ii. Impact of the Liquidity, Maturity, and Depth of the Market on the Analysis iii. Demonstrable Analysis of Certain Factors iv. Relationship to Required Limits 3. Compliance Program Requirement a. Proposed Compliance Program Requirement b. Comments on the Proposed Compliance Program Requirement c. Final Compliance Program Requirement 4. Market Making-Related Hedging a. Proposed Treatment of Market Making-Related Hedging b. Comments on the Proposed Treatment of Market Making-Related Hedging c. Treatment of Market Making-Related Hedging in the Final Rule 5. Compensation Requirement a. Proposed Compensation Requirement b. Comments Regarding the Proposed Compensation Requirement c. Final Compensation Requirement 6. Registration Requirement a. Proposed Registration Requirement b. Comments on the Proposed Registration Requirement c. Final Registration Requirement 7. Source of Revenue Analysis a. Proposed Source of Revenue Requirement b. Comments Regarding the Proposed Source of Revenue Requirement i. Potential Restrictions on Inventory, Increased Costs for customers, and Other Changes To Market-Making Services ii. Certain Price Appreciation-Related Profits Are an Inevitable or Important Component of Market Making iii. Concerns Regarding the Workability of the Proposed Standard in Certain Markets or Asset Classes iv. Suggested Modifications to the Proposed Requirement v. General Support for the Proposed Requirement or for Placing Greater Restrictions on a Market Maker's Sources of Revenue c. Final Rule's Approach To Assessing Revenues 8. Appendix B of the Proposed Rule a. Proposed Appendix B Requirement b. Comments on Proposed Appendix B c. Determination To Not Adopt Proposed Appendix B 9. Use of Quantitative Measurements 4. Section __.5: Permitted Risk-Mitigating Hedging Activities a. Summary of Proposal's Approach to Implementing the Hedging Exemption b. Manner of Evaluating Compliance With the Hedging Exemption c. Comments on the Proposed Rule and Approach to Implementing the Hedging Exemption d. Final Rule 1. Compliance Program Requirement 2. Hedging of Specific Risks and Demonstrable Reduction Of Risk 3. Compensation 4. Documentation Requirement 5. Section __.6(a)-(b): Permitted Trading in Certain Government and Municipal Obligations a. Permitted Trading in U.S. Government Obligations b. Permitted Trading in Foreign Government Obligations c. Permitted Trading in Municipal Securities d. Determination To Not Exempt Proprietary Trading in Multilateral Development Bank Obligations 6. Section __.6(c): Permitted Trading on Behalf of Customers a. Proposed Exemption for Trading on Behalf of Customers b. Comments on the Proposed Rule c. Final Exemption for Trading on Behalf of Customers 7. Section __.6(d): Permitted Trading by a Regulated Insurance Company 8. Section __.6(e): Permitted Trading Activities of a Foreign Banking Entity a. Foreign Banking Entities Eligible for the Exemption b. Permitted Trading Activities of a Foreign Banking Entity 9. Section __.7: Limitations on Permitted Trading Activities a. Scope of “Material Conflict of Interest” 1. Proposed Rule 2. Comments on the Proposed Limitation on Material Conflicts of Interest a. Disclosure b. Information Barriers 3. Final Rule b. Definition of “High-Risk Asset” and “High-Risk Trading Strategy” 1. Proposed Rule 2. Comments on Proposed Limitations on High-Risk Assets and Trading Strategies 3. Final Rule c. Limitations on Permitted Activities That Pose a Threat to Safety and Soundness of the Banking Entity or the Financial Stability of the United States B. Subpart C—Covered Fund Activities and Investments 1. Section __.10: Prohibition on Acquisition or Retention of Ownership Interests in, and Certain Relationships With, a Covered Fund a. Prohibition Regarding Covered Fund Activities and Investments b. “Covered Fund” Definition 1. Foreign Covered Funds 2. Commodity Pools 3. Entities Regulated Under the Investment Company Act c. Entities Excluded From Definition of Covered Fund 1. Foreign Public Funds 2. Wholly-Owned Subsidiaries 3. Joint Ventures 4. Acquisition Vehicles 5. Foreign Pension or Retirement Funds 6. Insurance Company Separate Accounts 7. Bank Owned Life Insurance Separate Accounts 8. Exclusion for Loan Securitizations and Definition of Loan a. Definition of Loan b. Loan Securitizations i. Loans ii. Contractual Rights Or Assets iii. Derivatives iv. SUBIs and Collateral Certificates v. Impermissible Assets 9. Asset-Backed Commercial Paper Conduits 10. Covered Bonds 11. Certain Permissible Public Welfare and Similar Funds 12. Registered Investment Companies and Excluded Entities 13. Other Excluded Entities d. Entities Not Specifically Excluded From the Definition of Covered Fund 1. Financial Market Utilities 2. Cash Collateral Pools 3. Pass-Through REITS 4. Municipal Securities Tender Option Bond Transactions 5. Venture Capital Funds 6. Credit Funds 7. Employee Securities Companies e. Definition of “Ownership Interest” f. Definition of “Resident of the United States” g. Definition of “Sponsor” 2. Section __.11: Activities Permitted in Connection With Organizing and Offering a Covered Fund a. Scope of Exemption 1. Fiduciary Services 2. Compliance With Investment Limitations 3. Compliance With Section 13(f) of the BHC Act 4. No Guarantees or Insurance of Fund Performance 5. Limitation on Name Sharing With a Covered Fund 6. Limitation on Ownership By Directors and Employees 7. Disclosure Requirements b. Organizing and Offering an Issuing Entity of Asset-Backed Securities c. Underwriting and Market Making for a Covered Fund 3. Section __.12: Permitted Investment in a Covered Fund a. Proposed Rule b. Duration of Seeding Period for New Covered Funds c. Limitations on Investments in a Single Covered Fund (“Per-Fund Limitation”) d. Limitation on Aggregate Permitted Investments in All Covered funds (“Aggregate Funds Limitation”) e. Capital Treatment of an Investment in a Covered Fund f. Attribution of Ownership Interests to a Banking Entity g. Calculation of Tier 1 Capital h. Extension of Time to Divest Ownership Interest in a Single Fund 4. Section __.13: Other Permitted Covered Fund Activities a. Permitted Risk-Mitigating Hedging Activities b. Permitted Covered Fund Activities and Investments Outside of the United States 1. Foreign Banking Entities Eligible for the Exemption 2. Activities or Investments Solely Outside of the United States 3. Offered for Sale or Sold to a Resident of the United States 4. Definition of “Resident of the United States” c. Permitted Covered Fund Interests and Activities by a Regulated Insurance Company 5. Section __.14: Limitations on Relationships With a Covered Fund a. Scope of Application b. Transactions That Would Be a “Covered Transaction” c. Certain Transactions and Relationships Permitted 1. Permitted Investments and Ownerships Interests 2. Prime Brokerage Transactions d. Restrictions on Transactions With Any Permitted Covered Fund 6. Section __.15: Other Limitations on Permitted Covered Fund Activities C. Subpart D and Appendices A and B—Compliance Program, Reporting, and Violations 1. Section __.20: Compliance Program Mandate a. Program Requirement b. Compliance Program Elements c. Simplified Programs for Less Active Banking Entities d. Threshold for Application of Enhanced Minimum Standards 2. Appendix B: Enhanced Minimum Standards for Compliance Programs a. Proprietary Trading Activities b. Covered Fund Activities or Investments c. Enterprise-Wide Programs d. Responsibility and Accountability e. Independent Testing f. Training g. Recordkeeping 3. Section __.20(d) and Appendix A: Reporting and Recordkeeping Requirements Applicable to Trading Activities a. Approach to Reporting and Recordkeeping Requirements Under the Proposal b. General Comments on the Proposed Metrics c. Approach of the Final Rule d. Proposed Quantitative Measurements and Comments on Specific Metrics 4. Section __.21: Termination of Activities or Investments; Authorities for Violations V. Administrative Law Matters A. Use of Plain Language B. Paperwork Reduction Act Analysis C. Regulatory Flexibility Act Analysis D. OCC Unfunded Mandates Reform Act of 1995 Determination I. Background The Dodd-Frank Act was enacted on July 21, 2010. 1 Section 619 of the Dodd-Frank Act added a new section 13 to the Bank Holding Company Act of 1956 (“BHC Act”) (codified at 12 U.S.C. 1851) that generally prohibits any banking entity from engaging in proprietary trading or from acquiring or retaining an ownership interest in, sponsoring, or having certain relationships with a hedge fund or private equity fund (“covered fund”), subject to certain exemptions. 2 New section 13 of the BHC Act also provides that a nonbank financial company designated by the Financial Stability Oversight Council (“FSOC”) for supervision by the Board (while not a banking entity under section 13 of the BHC Act) would be subject to additional capital requirements, quantitative limits, or other restrictions if the company engages in certain proprietary trading or covered fund activities. 3 1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010). 2 See 12 U.S.C. 1851. 3 See 12 U.S.C. 1851(a)(2) and (f)(4). The Agencies note that two of the three companies currently designated by FSOC for supervision by the Board are affiliated with insured depository institutions, and are therefore currently banking entities for purposes of section 13 of the BHC Act. The Agencies are continuing to review whether the remaining company engages in any activity subject to section 13 of the BHC Act and what, if any, requirements apply under section 13. Section 13 of the BHC Act generally prohibits banking entities from engaging as principal in proprietary trading for the purpose of selling financial instruments in the near term or otherwise with the intent to resell in order to profit from short-term price movements. 4 Section 13(d)(1) expressly exempts from this prohibition, subject to conditions, certain activities, including: 4 See 12 U.S.C. 1851(a)(1)(A) and (B). • Trading in U.S. government, agency and municipal obligations; • Underwriting and market making-related activities; • Risk-mitigating hedging activities; • Trading on behalf of customers; • Trading for the general account of insurance companies; and • Foreign trading by non-U.S. banking entities. 5 5 See id. at 1851(d)(1). Section 13 of the BHC Act also generally prohibits banking entities from acquiring or retaining an ownership interest in, or sponsoring, a hedge fund or private equity fund. Section 13 contains several exemptions that permit banking entities to make limited investments in hedge funds and private equity funds, subject to a number of restrictions designed to ensure that banking entities do not rescue investors in these funds from loss and are not themselves exposed to significant losses from investments or other relationships with these funds. Section 13 of the BHC Act does not prohibit a nonbank financial company supervised by the Board from engaging in proprietary trading, or from having the types of ownership interests in or relationships with a covered fund that a banking entity is prohibited or restricted from having under section 13 of the BHC Act. However, section 13 of the BHC Act provides that these activities be subject to additional capital charges, quantitative limits, or other restrictions. 6 6 See 12 U.S.C. 1851(a)(2) and (d)(4). II. Notice of Proposed Rulemaking: Summary of General Comments Authority for developing and adopting regulations to implement the prohibitions and restrictions of section 13 of the BHC Act is divided among the Board, the Federal Deposit Insurance Corporation (“FDIC”), the Office of the Comptroller of the Currency (“OCC”), the Securities and Exchange Commission (“SEC”), and the Commodity Futures Trading Commission (“CFTC”). 7 As required by section 13(b)(2) of the BHC Act, the Board, OCC, FDIC, and SEC in October 2011 invited the public to comment on proposed rules implementing that section's requirements. 8 The period for filing public comments on this proposal was extended for an additional 30 days, until February 13, 2012. 9 In January 2012, the CFTC requested comment on a proposal for the same common rule to implement section 13 with respect to those entities for which it is the primary financial regulatory agency and invited public comment on its proposed implementing rule through April 16, 2012. 10 The statute requires the Agencies, in developing and issuing implementing rules, to consult and coordinate with each other, as appropriate, for the purposes of assuring, to the extent possible, that such rules are comparable and provide for consistent application and implementation of the applicable provisions of section 13 of the BHC Act. 11 7 See 12 U.S.C. 1851(b)(2). Under section 13(b)(2)(B) of the BHC Act, rules implementing section 13's prohibitions and restrictions must be issued by: (i) The appropriate Federal banking agencies ( i.e., the Board, the OCC, and the FDIC), jointly, with respect to insured depository institutions; (ii) the Board, with respect to any company that controls an insured depository institution, or that is treated as a bank holding company for purposes of section 8 of the International Banking Act, any nonbank financial company supervised by the Board, and any subsidiary of any of the foregoing (other than a subsidiary for which an appropriate Federal banking agency, the SEC, or the CFTC is the primary financial regulatory agency); (iii) the CFTC with respect to any entity for which it is the primary financial regulatory agency, as defined in section 2 of the Dodd-Frank Act; and (iv) the SEC with respect to any entity for which it is the primary financial regulatory agency, as defined in section 2 of the Dodd-Frank Act. See id. 8 See 76 FR 68846 (Nov. 7, 2011) (“Joint Proposal”). 9 See 77 FR 23 (Jan. 23, 2012) (extending the comment period to February 13, 2012). 10 See 77 FR 8332 (Feb. 14, 2012) (“CFTC Proposal”). 11 See 12 U.S.C. 1851(b)(2)(B)(ii). The Secretary of the Treasury, as Chairperson of the FSOC, is responsible for coordinating the Agencies' rulemakings under section 13 of the BHC Act. See id. The proposed rules invited comment on a multi-faceted regulatory framework to implement section 13 consistent with the statutory language. In addition, the Agencies invited comments on the potential economic impacts of the proposed rule and posed a number of questions seeking information on the costs and benefits associated with each aspect of the proposal, as well as on any significant alternatives that would minimize the burdens or amplify the benefits of the proposal in a manner consistent with the statute. The Agencies also encouraged commenters to provide quantitative information and data about the impact of the proposal on entities subject to section 13, as well as on their clients, customers, and counterparties, specific markets or asset classes, and any other entities potentially affected by the proposed rule, including non-financial small and mid-size businesses. The Agencies received over 18,000 comments addressing a wide variety of aspects of the proposal, including definitions used by the proposal and the exemptions for market making-related activities, risk-mitigating hedging activities, covered fund activities and investments, the use of quantitative metrics, and the reporting proposals. The vast majority of these comments were from individuals using a version of a short form letter to express support for the proposed rule. More than 600 comment letters were unique comment letters, including from members of Congress, domestic and foreign banking entities and other financial services firms, trade groups representing banking, insurance, and the broader financial services industry, U.S. state and foreign governments, consumer and public interest groups, and individuals. To improve understanding of the issues raised by commenters, the Agencies met with a number of these commenters to discuss issues relating to the proposed rule, and summaries of these meetings are available on each of the Agency's public Web sites. 12 The CFTC staff also hosted a public roundtable on the proposed rule. 13 Many of the commenters generally expressed support for the broader goals of the proposed rule. At the same time, many commenters expressed concerns about various aspects of the proposed rule. Many of these commenters requested that one or more aspects of the proposed rule be modified in some manner in order to reflect their viewpoints and to better accommodate the scope of activities that they argued were encompassed within section 13 of the BHC Act. The comments addressed all major sections of the proposed rule. 12 See http://www.regulations.gov/#!docketDetail;D=OCC-2011-0014 (OCC); http://www.federalreserve.gov/newsevents/reform_systemic.htm (Board); http://www.fdic.gov/regulations/laws/federal/2011/11comAD85.html (FDIC); http://www.sec.gov/comments/s7-41-11/s74111.shtml (SEC); and http://www.cftc.gov/LawRegulation/DoddFrankAct/Rulemakings/DF_28_VolckerRule/index.htm (CFTC). 13 See Commodity Futures Trading Commission, CFTC Staff to Host a Public Roundtable to Discuss the Proposed Volcker Rule (May 24, 2012), available at http://www.cftc.gov/PressRoom/PressReleases/pr6263-12 ; transcript available at http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/transcript053112.pdf . Section 13 of the BHC Act also required the FSOC to conduct a study (“FSOC study”) and make recommendations to the Agencies by January 21, 2011 on the implementation of section 13 of the BHC Act. The FSOC study was issued on January 18, 2011. The FSOC study included a detailed discussion of key issues related to implementation of section 13 and recommended that the Agencies consider taking a number of specified actions in issuing rules under section 13 of the BHC Act. 14 The FSOC study also recommended that the Agencies adopt a four-part implementation and supervisory framework for identifying and preventing prohibited proprietary trading, which included a programmatic compliance regime requirement for banking entities, analysis and reporting of quantitative metrics by banking entities, supervisory review and oversight by the Agencies, and enforcement procedures for violations. 15 The Agencies carefully considered the FSOC study and its recommendations. 14 See Financial Stability Oversight Counsel, Study and Recommendations on Prohibitions on Proprietary Trading and Certain Relationships with Hedge Funds and Private Equity Funds (Jan. 18, 2011), available at http://www.treasury.gov/initiatives/Documents/Volcker%20sec%20619%20study%20final%201%2018%2011%20rg.pdf . (“FSOC study”). See 12 U.S.C. 1851(b)(1). Prior to publishing its study, FSOC requested public comment on a number of issues to assist in conducting its study. See 75 FR 61,758 (Oct. 6, 2010). Approximately 8,000 comments were received from the public, including from members of Congress, trade associations, individual banking entities, consumer groups, and individuals. 15 See FSOC study at 5-6. In formulating this final rule, the Agencies carefully reviewed all comments submitted in connection with the rulemaking and considered the suggestions and issues they raise in light of the statutory restrictions and provisions as well as the FSOC study. The Agencies have sought to reasonably respond to all of the significant issues commenters raised. The Agencies believe they have succeeded in doing so notwithstanding the complexities involved. The Agencies also carefully considered different options suggested by commenters in light of potential costs and benefits in order to effectively implement section 13 of the BHC Act. The Agencies made numerous changes to the final rule in response to the issues and information provided by commenters. These modifications to the rule and explanations that address comments are described in more detail in the section-by-section description of the final rule. To enhance uniformity in both rules that implement section 13 and administration of the requirements of that section, the Agencies have been regularly consulting with each other in the development of this final rule. Some commenters requested that the Agencies repropose the rule and/or delay adoption pending the collection of additional information. 16 As described in part above, the Agencies have provided many and various types of opportunities for commenters to provide input on implementation of section 13 of the BHC Act and have collected substantial information in the process. In addition to the official comment process described above, members of the public submitted comment letters in advance of the official comment period for the proposed rules and met with staff of the Agencies to explain issues of concern; the public also provided substantial comment in response to a request for comment from the FSOC regarding its findings and recommendations for implementing section 13. 17 The Agencies provided a detailed proposal and posed numerous questions in the preamble to the proposal to solicit and explore alternative approaches in many areas. In addition, the Agencies have continued to receive comment letters after the extended comment period deadline, which the Agencies have considered. Thus, the Agencies believe interested parties have had ample opportunity to review the proposed rules, as well as the comments made by others, and to provide views on the proposal, other comment letters, and data to inform our consideration of the final rules. 16 See, e.g., SIFMA et al. (Prop. Trading) (Feb. 2012); ABA (Keating); Chamber (Nov. 2011); Chamber (Nov. 2013); Members of Congress (Dec. 2011); IIAC; Real Estate Roundtable; Ass'n. of German Banks; Allen & Overy (Clearing); JPMC; Goldman (Prop. Trading); BNY Mellon et al.; State Street (Feb. 2012); ICI Global; Chamber (Feb. 2012); Société Générale; HSBC; Western Asset Mgmt.; Abbott Labs et al. (Feb. 2012); PUC Texas; Columbia Mgmt.; ICI (Feb. 2012); IIB/EBF; British Bankers' Ass'n.; ISDA (Feb. 2012); Comm. on Capital Markets Regulation; Ralph Saul (Apr. 2012); BPC. 17 See 75 FR 61,758 (Oct. 6, 2010). In addition, the Agencies have been mindful of the importance of providing certainty to banking entities and financial markets and of providing sufficient time for banking entities to understand the requirements of the final rule and to design, test, and implement compliance and reporting systems. The further substantial delay that would necessarily be entailed by reproposing the rule would extend the uncertainty that banking entities would face, which could prove disruptive to banking entities and the financial markets. The Agencies note, as discussed more fully below, that the final rule incorporates a number of modifications designed to address the issues raised by commenters in a manner consistent with the statute. The preamble below also discusses many of the issues raised by commenters and explains the Agencies' response to those comments. To achieve the purpose of the statute, without imposing unnecessary costs, the final rule builds on the multi-faceted approach in the proposal, which includes development and implementation of a compliance program at each banking entity engaged in trading activities or that makes investments subject to section 13 of the BHC Act; the collection and evaluation of data regarding these activities as an indicator of areas meriting additional attention by the banking entity and the relevant agency; appropriate limits on trading, hedging, investment and other activities; and supervision by the Agencies. To allow banking entities sufficient time to develop appropriate systems, the Agencies have provided for a phased-in schedule for the collection of data, limited data reporting requirements only to banking entities that engage in significant trading activity, and agreed to review the merits of the data collected and revise the data collection as appropriate over the next 21 months. Importantly, as explained in detail below, the Agencies have also reduced the compliance burden for banking entities with total assets of less than $10 billion. The final rule also eliminates compliance burden for firms that do not engage in covered activities or investments beyond investing in U.S. government obligations, agency guaranteed obligations, or municipal obligations. Moreover, the Agencies believe the data that will be collected in connection with the final rule, as well as the compliance efforts made by banking entities and the supervisory experience that will be gained by the Agencies in reviewing trading and investment activity under the final rule, will provide valuable insights into the effectiveness of the final rule in achieving the purpose of section 13 of the BHC Act. The Agencies remain committed to implementing the final rule, and revisiting and revising the rule as appropriate, in a manner designed to ensure that the final rule faithfully implements the requirements and purposes of the statute. 18 18 If any provision of this rule, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application. Finally, the Board has determined, in accordance with section 13 of the BHC Act, to provide banking entities with additional time to conform their activities and investments to the statute and the final rule. The restrictions and prohibitions of section 13 of the BHC Act became effective on July 21, 2012. 19 The statute provided banking entities a period of two years to conform their activities and investments to the requirement of the statute, until July 21, 2014. Section 13 also permits the Board to extend this conformance period, one year at a time, for a total of no more than three additional years. 20 Pursuant to this authority and in connection with this rulemaking, the Board has in a separate action extended the conformance period for an additional year until July 21, 2015. 21 The Board will continue to monitor developments to determine whether additional extensions of the conformance period are in the public interest, consistent with the statute. Accordingly, the Agencies do not believe that a reproposal or further delay is necessary or appropriate. 19 See 12 U.S.C. 1851(c)(1). 20 See 12 U.S.C. 1851(c)(2); See also, A Conformance Period for Entities Engaged in Prohibited Proprietary Trading or Private Equity Fund or Hedge Fund Activities, 76 FR 8265 (Feb. 14, 2011) (citing 156 Cong. Rec. S5898 (daily ed. July 15, 2010) (statement of Sen. Merkley)). 21 See, Board Order Approving Extension of Conformance Period, available at http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20131210b1.pdf . Commenters have differing views on the overall economic impacts of section 13 of the BHC Act. Some commenters remarked that proprietary trading restrictions will have detrimental impacts on the economy such as: reduction in efficiency of markets, economic growth, and in employment due to a loss in liquidity. 22 In particular, a commenter expressed concern that there may be high transition costs as non-banking entities replace some of the trading activities currently performed by banking entities. 23 Another commenter focused on commodity markets remarked about the potential reduction in commercial output and curtailed resource exploration due to a lack of hedging counterparties. 24 Several commenters stated that section 13 of the BHC Act will reduce access to debt markets—especially for smaller companies—raising the costs of capital for firms and lowering the returns on certain investments. 25 Further, some commenters mentioned that U.S. banks may be competitively disadvantaged relative to foreign banks due to proprietary trading restrictions and compliance costs. 26 22 See, e.g., Oliver Wyman (Dec. 2011); Chamber (Dec. 2011); Thakor Study; Prof. Duffie; IHS. 23 See Prof. Duffie. 24 See IHS. 25 See, e.g., Chamber (Dec. 2011); Thakor Study; Oliver Wyman (Dec. 2011); IHS. 26 See, e.g., RBC; Citigroup (Feb. 2012); Goldman (Covered Funds). On the other hand, other commenters stated that restricting proprietary trading activity by banking entities may reduce systemic risk emanating from the financial system and help to lower the probability of the occurrence of another financial crisis. 27 One commenter contended that large banking entities may have a moral hazard incentive to engage in risky activities without allocating sufficient capital to them, especially if market participants believe these institutions will not be allowed to fail. 28 Commenters argued that large banking entities may engage in activities that increase the upside return at the expense of downside loss exposure which may ultimately be borne by Federal taxpayers 29 and that subsidies associated with bank funding may create distorted economic outcomes. 30 Furthermore, some commenters remarked that non-banking entities may fill much of the void in liquidity provision left by banking entities if banking entities reduce their current trading activities. 31 Finally, some commenters mentioned that hyper-liquidity that arises from, for instance, speculative bubbles, may harm the efficiency and price discovery function of markets. 32 27 See, e.g., Profs. Admati & Pfleiderer; AFR (Nov. 2012); Better Markets (Dec. 2011); Better Markets (Feb. 2012); Occupy; Johnson & Prof. Stiglitz; Paul Volcker. 28 See Occupy. 29 See Profs. Admati & Pfleiderer; Better Markets (Feb. 2012); Occupy; Johnson & Prof. Stiglitz; Paul Volcker. 30 See Profs. Admati & Pfleiderer; Johnson & Prof. Stiglitz. 31 See AFR et al. (Feb. 2012); Better Markets (Apr. 16, 2012); David McClean; Public Citizen; Occupy. 32 See Johnson & Prof. Stiglitz (citing Thomas Phillipon (2011)); AFR et al. (Feb. 2012); Occupy. The Agencies have taken these concerns into account in the final rule. As described below with respect to particular aspects of the final rule, the Agencies have addressed these issues by reducing burdens where appropriate, while at the same time ensuring that the final rule serves its purpose of promoting healthy economic activity. In that regard, the Agencies have sought to achieve the balance intended by Congress under section 13 of the BHC Act. Several comments suggested that a costs and benefits analysis be performed by the Agencies. 33 On the other hand, some commenters 34 correctly stated that a costs and benefits analysis is not legally required. 35 However, the Agencies find certain of the information submitted by commenters concerning costs and benefits and economic effects to be relevant to consideration of the rule, and so have considered this information as appropriate, and, on the basis of these and other considerations, sought to achieve the balance intended by Congress in section 619 of the Dodd-Frank Act. The relevant comments are addressed therein. 33 See SIFMA et al. (Covered Funds) (Feb. 2012); BoA; ABA (Keating); Chamber (Feb. 2012); Société Générale; FTN; SVB; ISDA (Feb. 2012); Comm. on Capital Market Regulation; Real Estate Roundtable. 34 See, e.g., Better Markets (Feb. 2012); Randel Pilo. 35 For example, with respect to the CFTC, Section 15(a) of the CEA requires such consideration only when “promulgating a regulation under this [Commodity Exchange] Act.” This final rule is not promulgated under the CEA, but under the BHC Act. CEA section 15(a), therefore, does not apply. III. Overview of Final Rule The Agencies are adopting this final rule to implement section 13 of the BHC Act with a number of changes to the proposal, as described further below. The final rule adopts a risk-based approach to implementation that relies on a set of clearly articulated characteristics of both prohibited and permitted activities and investments and is designed to effectively accomplish the statutory purpose of reducing risks posed to banking entities by proprietary trading activities and investments in or relationships with covered funds. As explained more fully below in the section-by-section analysis, the final rule has been designed to ensure that banking entities do not engage in prohibited activities or investments and to ensure that banking entities engage in permitted trading and investment activities in a manner designed to identify, monitor and limit the risks posed by these activities and investments. For instance, the final rule requires that any banking entity that is engaged in activity subject to section 13 develop and administer a compliance program that is appropriate to the size, scope and risk of its activities and investments. The rule requires the largest firms engaged in these activities to develop and implement enhanced compliance programs and regularly report data on trading activities to the Agencies. The Agencies believe this will permit banking entities to effectively engage in permitted activities, and the Agencies to enforce compliance with section 13 of the BHC Act. In addition, the enhanced compliance programs will help both the banking entities and the Agencies identify, monitor, and limit risks of activities permitted under section 13, particularly involving banking entities posing the greatest risk to financial stability. A. General Approach and Summary of Final Rule The Agencies have designed the final rule to achieve the purposes of section 13 of the BHC Act, which include prohibiting banking entities from engaging in proprietary trading or acquiring or retaining an ownership interest in, or having certain relationships with, a covered fund, while permitting banking entities to continue to provide, and to manage and limit the risks associated with providing, client-oriented financial services that are critical to capital generation for businesses of all sizes, households and individuals, and that facilitate liquid markets. These client-oriented financial services, which include underwriting, market making, and asset management services, are important to the U.S. financial markets and the participants in those markets. At the same time, providing appropriate latitude to banking entities to provide such client-oriented services need not and should not conflict with clear, robust, and effective implementation of the statute's prohibitions and restrictions. As noted above, the final rule takes a multi-faceted approach to implementing section 13 of the BHC Act. In particular, the final rule includes a framework that clearly describes the key characteristics of both prohibited and permitted activities. The final rule also requires banking entities to establish a comprehensive compliance program designed to ensure compliance with the requirements of the statute and rule in a way that takes into account and reflects the banking entity's activities, size, scope and complexity. With respect to proprietary trading, the final rule also requires the large firms that are active participants in trading activities to calculate and report meaningful quantitative data that will assist both banking entities and the Agencies in identifying particular activity that warrants additional scrutiny to distinguish prohibited proprietary trading from otherwise permissible activities. As a matter of structure, the final rule is generally divided into four subparts and contains two appendices, as follows: • Subpart A of the final rule describes the authority, scope, purpose, and relationship to other authorities of the rule and defines terms used commonly throughout the rule; • Subpart B of the final rule prohibits proprietary trading, defines terms relevant to covered trading activity, establishes exemptions from the prohibition on proprietary trading and limitations on those exemptions, and requires certain banking entities to report quantitative measurements with respect to their trading activities; • Subpart C of the final rule prohibits or restricts acquiring or retaining an ownership interest in, and certain relationships with, a covered fund, defines terms relevant to covered fund activities and investments, as well as establishes exemptions from the restrictions on covered fund activities and investments and limitations on those exemptions; • Subpart D of the final rule generally requires banking entities to establish a compliance program regarding compliance with section 13 of the BHC Act and the final rule, including written policies and procedures, internal controls, a management framework, independent testing of the compliance program, training, and recordkeeping; • Appendix A of the final rule details the quantitative measurements that certain banking entities may be required to compute and report with respect to certain trading activities; • Appendix B of the final rule details the enhanced minimum standards for programmatic compliance that certain banking entities must meet with respect to their compliance program, as required under subpart D. B. Proprietary Trading Restrictions Subpart B of the final rule implements the statutory prohibition on proprietary trading and the various exemptions to this prohibition included in the statute. Section __.3 of the final rule contains the core prohibition on proprietary trading and defines a number of related terms, including “proprietary trading” and “trading account.” The final rule's definition of proprietary trading generally parallels the statutory definition and covers engaging as principal for the trading account of a banking entity in any transaction to purchase or sell specified types of financial instruments. 36 36 See final rule § __.3(a). The final rule's definition of trading account also is consistent with the statutory definition. 37 In particular, the definition of trading account in the final rule includes three classes of positions. First, the definition includes the purchase or sale of one or more financial instruments taken principally for the purpose of short-term resale, benefitting from short-term price movements, realizing short-term arbitrage profits, or hedging another trading account position. 38 For purposes of this part of the definition, the final rule also contains a rebuttable presumption that the purchase or sale of a financial instrument by a banking entity is for the trading account of the banking entity if the banking entity holds the financial instrument for fewer than 60 days or substantially transfers the risk of the financial instrument within 60 days of purchase (or sale). 39 Second, with respect to a banking entity subject to the Federal banking agencies' Market Risk Capital Rules, the definition includes the purchase or sale of one or more financial instruments subject to the prohibition on proprietary trading that are treated as “covered positions and trading positions” (or hedges of other market risk capital rule covered positions) under those capital rules, other than certain foreign exchange and commodities positions. 40 Third, the definition includes the purchase or sale of one or more financial instruments by a banking entity that is licensed or registered or required to be licensed or registered to engage in the business of a dealer, swap dealer, or security-based swap dealer to the extent the instrument is purchased or sold in connection with the activities that require the banking entity to be licensed or registered as such or is engaged in those businesses outside of the United States, to the extent the instrument is purchased or sold in connection with the activities of such business. 41 37 See final rule § __.3(b). 38 See final rule § __.3(b)(1)(i). 39 See final rule § __.3(b)(2). 40 See final rule § __.3(b)(1)(ii). 41 See final rule § __.3(b)(1)(iii). The definition of proprietary trading also contains clarifying exclusions for certain purchases and sales of financial instruments that generally do not involve the requisite short-term trading intent, such as the purchase and sale of financial instruments arising under certain repurchase and reverse repurchase arrangements or securities lending transactions and securities acquired or taken for bona fide liquidity management purposes. 42 42 See final rule § __.3(d). In Section __.3, the final rule also defines a number of other relevant terms, including the term “financial instrument.” This term is used to define the scope of financial instruments subject to the prohibition on proprietary trading. Consistent with the statutory language, such financial instruments include securities, derivatives, commodity futures, and options on such instruments, but do not include loans, spot foreign exchange or spot physical commodities. 43 43 See final rule § __.3(c). In Section __.4, the final rule implements the statutory exemptions for underwriting and market making-related activities. For each of these permitted activities, the final rule defines the exempt activity and provides a number of requirements that must be met in order for a banking entity to rely on the applicable exemption. As more fully discussed below, these include establishment and enforcement of a compliance program targeted to the activity; limits on positions, inventory and risk exposure addressing the requirement that activities be designed not to exceed the reasonably expected near term demands of clients, customers, or counterparties; limits on the duration of holdings and positions; defined escalation procedures to change or exceed limits; analysis justifying established limits; internal controls and independent testing of compliance with limits; senior management accountability and limits on incentive compensation. In addition, the final rule requires firms with significant market-making or underwriting activities to report data involving several metrics that may be used by the banking entity and the Agencies to identify trading activity that may warrant more detailed compliance review. These requirements are generally designed to ensure that the banking entity's trading activity is limited to underwriting and market making-related activities and does not include prohibited proprietary trading. 44 These requirements are also intended to work together to ensure that banking entities identify, monitor and limit the risks associated with these activities. 44 See final rule § __.4(a), (b). In Section __.5, the final rule implements the statutory exemption for risk-mitigating hedging. As with the underwriting and market-making exemptions, § __.5 of the final rule contains a number of requirements that must be met in order for a banking entity to rely on the exemption. These requirements are generally designed to ensure that the banking entity's hedging activity is limited to risk-mitigating hedging in purpose and effect. 45 Section __.5 also requires banking entities to document, at the time the transaction is executed, the hedging rationale for certain transactions that present heightened compliance risks. 46 As with the exemptions for underwriting and market making-related activity, these requirements form part of a broader implementation approach that also includes the compliance program requirement and the reporting of quantitative measurements. 45 See final rule § __.5. 46 See final rule § __.5(c). In Section __.6, the final rule implements statutory exemptions for trading in certain government obligations, trading on behalf of customers, trading by a regulated insurance company, and trading by certain foreign banking entities outside of the United States. Section __.6(a) of the final rule describes the government obligations in which a banking entity may trade, which include U.S. government and agency obligations, obligations and other instruments of specified government sponsored entities, and State and municipal obligations. 47 Section __.6(b) of the final rule permits trading in certain foreign government obligations by affiliates of foreign banking entities in the United State and foreign affiliates of a U.S. banking entity abroad. 48 Section __.6(c) of the final rule describes permitted trading on behalf of customers and identifies the types of transactions that would qualify for the exemption. 49 Section __.6(d) of the final rule describes permitted trading by a regulated insurance company or an affiliate thereof for the general account of the insurance company, and also permits those entities to trade for a separate account of the insurance company. 50 Finally, § __.6(e) of the final rule describes trading permitted outside of the United States by a foreign banking entity. 51 The exemption in the final rule clarifies when a foreign banking entity will qualify to engage in such trading pursuant to sections 4(c)(9) or 4(c)(13) of the BHC Act, as required by the statute, including with respect to a foreign banking entity not currently subject to the BHC Act. As explained in detail below, the exemption also provides that the risk as principal, the decision-making, and the accounting for this activity must occur solely outside of the United States, consistent with the statute. 47 See final rule § __.6(a). 48 See final rule § __.6(b). 49 See final rule § __.6(c). 50 See final rule § __.6(d). 51 See final rule § __.6(e). In Section __.7, the final rule prohibits a banking entity from relying on any exemption to the prohibition on proprietary trading if the permitted activity would involve or result in a material conflict of interest, result in a material exposure to high-risk assets or high-risk trading strategies, or pose a threat to the safety and soundness of the banking entity or to the financial stability of the United States. 52 This section also describes the terms material conflict of interest, high-risk asset, and high-risk trading strategy for these purposes. 52 See final rule § __.7. C. Restrictions on Covered Fund Activities and Investments Subpart C of the final rule implements the statutory prohibition on, directly or indirectly, acquiring and retaining an ownership interest in, or having certain relationships with, a covered fund, as well as the various exemptions to this prohibition included in the statute. Section __.10 of the final rule contains the core prohibition on covered fund activities and investments and defines a number of related terms, including “covered fund” and “ownership interest.” 53 The definition of covered fund contains a number of exclusions for entities that may rely on exclusions from the Investment Company Act of 1940 contained in section 3(c)(1) or 3(c)(7) of that Act but that are not engaged in investment activities of the type contemplated by section 13 of the BHC Act. These include, for example, exclusions for wholly owned subsidiaries, joint ventures, foreign pension or retirement funds, insurance company separate accounts, and public welfare investment funds. The final rule also implements the statutory rule of construction in section 13(g)(2) and provides that a securitization of loans, which would include loan securitization, qualifying asset backed commercial paper conduit, and qualifying covered bonds, is not covered by section 13 or the final rule. 54 53 See final rule § __.10(b). 54 The Agencies believe that most securitization transactions are currently structured so that the issuing entity with respect to the securitization is not an affiliate of a banking entity under the BHC Act. However, with respect to any securitization that is an affiliate of a banking entity and that does not meet the requirements of the loan securitization exclusion, the related banking entity will need to determine how to bring the securitization into compliance with this rule. The definition of “ownership interest” in the final rule provides further guidance regarding the types of interests that would be considered to be an ownership interest in a covered fund. 55 As described in this Supplementary Information, these interests may take various forms. The definition of ownership interest also explicitly excludes from the definition “restricted profit interest” that is solely performance compensation for services provided to the covered fund by the banking entity (or an employee or former employee thereof), under certain circumstances. 56 Section __.10 of the final rule also defines a number of other relevant terms, including the terms “prime brokerage transaction,” “sponsor,” and “trustee.” 55 See final rule § __.10(d)(6). 56 See final rule § __.10(b)(6)(ii). Section __.11 of the final rule implements the exemption for organizing and offering a covered fund provided for under section 13(d)(1)(G) of the BHC Act. Section __.11(a) of the final rule outlines the conditions that must be met in order for a banking entity to organize and offer a covered fund under this authority. These requirements are contained in the statute and are intended to allow a banking entity to engage in certain traditional asset management and advisory businesses, subject to certain limits contained in section 13 of the BHC Act. 57 The requirements are discussed in detail in Part IV.B.2. of this Supplementary Information . Section __.11 also explains how these requirements apply to covered funds that are issuing entities of asset-backed securities, as well as implements the statutory exemption for underwriting and market-making ownership interests of a covered fund, including explaining the limitations imposed on such activities under the final rule. 57 See 156 Cong. Rec. S5889 (daily ed. July 15, 2010) (statement of Sen. Hagan). In Section __.12, the final rule permits a banking entity to acquire and retain, as an investment in a covered fund, an ownership interest in a covered fund that the banking entity organizes and offers or holds pursuant to other authority under § __.11. 58 This section implements section 13(d)(4) of the BHC Act and related provisions. Section 13(d)(4)(A) of the BHC Act permits a banking entity to make an investment in a covered fund that the banking entity organizes and offers, or for which it acts as sponsor, for the purposes of (i) establishing the covered fund and providing the fund with sufficient initial equity for investment to permit the fund to attract unaffiliated investors, or (ii) making a de minimis investment in the covered fund in compliance with applicable requirements. Section __.12 of the final rule implements this authority and related limitations, including limitations regarding the amount and value of any individual per-fund investment and the aggregate value of all such permitted investments. In addition, § __.12 requires that the aggregate value of all investments in covered funds, plus any earnings on these investments, be deducted from the capital of the banking entity for purposes of the regulatory capital requirements, and explains how that deduction must occur. Section __.12 of the final rule also clarifies how a banking entity must calculate its compliance with these investment limitations (including by deducting such investments from applicable capital, as relevant), and sets forth how a banking entity may request an extension of the period of time within which it must conform an investment in a single covered fund. This section also explains how a banking entity must apply the covered fund investment limits to a covered fund that is an issuing entity of asset backed securities or a covered fund that is part of a master-feeder or fund-of-funds structure. 58 See final rule § __.12. In Section __.13, the final rule implements the statutory exemptions described in sections 13(d)(1)(C), (D), (F), and (I) of the BHC Act that permit a banking entity: (i) to acquire and retain an ownership interest in a covered fund as a risk-mitigating hedging activity related to employee compensation; (ii) in the case of a non-U.S. banking entity, to acquire and retain an ownership interest in, or act as sponsor to, a covered fund solely outside the United States; and (iii) to acquire and retain an ownership interest in, or act as sponsor to, a covered fund by an insurance company for its general or separate accounts. 59 59 See final rule § __.13(a)-(c). In Section __.14, the final rule implements section 13(f) of the BHC Act and generally prohibits a banking entity from entering into certain transactions with a covered fund that would be a covered transaction as defined in section 23A of the Federal Reserve Act. 60 Section __.14(a)(2) of the final rule describes the transactions between a banking entity and a covered fund that remain permissible under the statute and the final rule. Section __.14(b) of the final rule implements the statute's requirement that any transaction permitted under section 13(f) of the BHC Act (including a prime brokerage transaction) between the banking entity and a covered fund is subject to section 23B of the Federal Reserve Act, 61 which, in general, requires that the transaction be on market terms or on terms at least as favorable to the banking entity as a comparable transaction by the banking entity with an unaffiliated third party. 60 See 12 U.S.C. 371c; see also final rule § __.14. 61 12 U.S.C. 371c-1. In Section __.15, the final rule prohibits a banking entity from relying on any exemption to the prohibition on acquiring and retaining an ownership interest in, acting as sponsor to, or having certain relationships with, a covered fund, if the permitted activity or investment would involve or result in a material conflict of interest, result in a material exposure to high-risk assets or high-risk trading strategies, or pose a threat to the safety and soundness of the banking entity or to the financial stability of the United States. 62 This section also describes material conflict of interest, high-risk asset, and high-risk trading strategy for these purposes. 62 See final rule § __.15. D. Metrics Reporting Requirement Under the final rule, a banking entity that meets relevant thresholds specified in the rule must furnish the following quantitative measurements for each of its trading desks engaged in covered trading activity calculated in accordance with Appendix A: • Risk and Position Limits and Usage; • Risk Factor Sensitivities; • Value-at-Risk and Stress VaR; • Comprehensive Profit and Loss Attribution; • Inventory Turnover; • Inventory Aging; and • Customer Facing Trade Ratio. The final rule raises the threshold for metrics reporting from the proposal to capture only firms that engage in significant trading activity, identified at specified aggregate trading asset and liability thresholds, and delays the dates for reporting metrics through a phased-in approach based on the size of trading assets and liabilities. Specifically, the Agencies have delayed the reporting of metrics until June 30, 2014 for the largest banking entities that, together with their affiliates and subsidiaries, have trading assets and liabilities the average gross sum of which equal or exceed $50 billion on a worldwide consolidated basis over the previous four calendar quarters (excluding trading assets and liabilities involving obligations of or guaranteed by the United States or any agency of the United States). Banking entities with $25 billion or more in trading assets and liabilities and banking entities with $10 billion or more in trading assets and liabilities would also be required to report these metrics beginning on April 30, 2016, and December 31, 2016, respectively. Under the final rule, a banking entity required to report metrics must calculate any applicable quantitative measurement for each trading day. Each banking entity required to report must report each applicable quantitative measurement to its primary supervisory Agency on the reporting schedule established in the final rule unless otherwise requested by the primary supervisory Agency for the entity. The largest banking entities with $50 billion in consolidated trading assets and liabilities must report the metrics on a monthly basis. Other banking entities required to report metrics must do so on a quarterly basis. All quantitative measurements for any calendar month must be reported no later than 10 days after the end of the calendar month required by the final rule unless another time is requested by the primary supervisory Agency for the entity except for a transitional six month period during which reporting will be required no later than 30 days after the end of the calendar month. Banking entities subject to quarterly reporting will be required to report quantitative measurements within 30 days of the end of the quarter, unless another time is requested by the primary supervisory Agency for the entity in writing. 63 63 See final rule § __.20(d)(3). The final rule includes a shorter period of time for reporting quantitative measurements than was proposed for the largest banking entities. Like the monthly reporting requirement for these firms, this is intended to allow for more effective supervision of their large-scale trading operations. E. Compliance Program Requirement Subpart D of the final rule requires a banking entity engaged in covered trading activities or covered fund activities to develop and implement a program reasonably designed to ensure and monitor compliance with the prohibitions and restrictions on covered trading activities and covered fund activities and investments set forth in section 13 of the BHC Act and the final rule. 64 To reduce the overall burden of the rule, the final rule provides that a banking entity that does not engage in covered trading activities (other than trading in U.S. government or agency obligations, obligations of specified government sponsored entities, and state and municipal obligations) or covered fund activities and investments need only establish a compliance program prior to becoming engaged in such activities or making such investments. 65 In addition, to reduce the burden on smaller banking entities, a banking entity with total consolidated assets of $10 billion or less that engages in covered trading activities and/or covered fund activities or investments may satisfy the requirements of the final rule by including in its existing compliance policies and procedures appropriate references to the requirements of section 13 and the final rule and adjustments as appropriate given the activities, size, scope and complexity of the banking entity. 66 64 See final rule § __.20. 65 See final rule § __.20(f)(1). 66 See final rule § __.20(f)(2). For banking entities with total assets greater than $10 billion and less than $50 billion, the final rule specifies six elements that each compliance program established under subpart D must, at a minimum, include. These requirements focus on written policies and procedures reasonably designed to ensure compliance with the final rules, including limits on underwriting and market-making; a system of internal controls; clear accountability for compliance and review of limits, hedging, incentive compensation, and other matters; independent testing and audits; additional documentation for covered funds; training; and recordkeeping requirements. A banking entity with $50 billion or more total consolidated assets (or a foreign banking entity that has total U.S. assets of $50 billion or more) or that is required to report metrics under Appendix A is required to adopt an enhanced compliance program with more detailed policies, limits, governance processes, independent testing and reporting. In addition, the Chief Executive Officer of these larger banking entities must attest that the banking entity has in place a program reasonably designed to achieve compliance with the requirements of section 13 of the BHC Act and the final rule. The application of detailed minimum standards for these types of banking entities is intended to reflect the heightened compliance risks of large covered trading activities and covered fund activities and investments and to provide clear, specific guidance to such banking entities regarding the compliance measures that would be required for purposes of the final rule. IV. Final Rule A. Subpart B—Proprietary Trading Restrictions 1. Section __.3: Prohibition on Proprietary Trading and Related Definitions Section 13(a)(1)(A) of the BHC Act prohibits a banking entity from engaging in proprietary trading unless otherwise permitted in section 13. 67 Section 13(h)(4) of the BHC Act defines proprietary trading, in relevant part, as engaging as principal for the trading account of the banking entity in any transaction to purchase or sell, or otherwise acquire or dispose of, a security, derivative, contract of sale of a commodity for future delivery, or other financial instrument that the Agencies include by rule. 68 67 12 U.S.C. 1851(a)(1)(A). 68 12 U.S.C. 1851(h)(4). Section __.3(a) of the proposed rule implemented section 13(a)(1)(A) of the BHC Act by prohibiting a banking entity from engaging in proprietary trading unless otherwise permitted under §§ __.4 through __.6 of the proposed rule. Section __.3(b)(1) of the proposed rule defined proprietary trading in accordance with section 13(h)(4) of the BHC Act and clarified that proprietary trading does not include acting solely as agent, broker, or custodian for an unaffiliated third party. The preamble to the proposed rule explained that acting in these types of capacities does not involve trading as principal. 69 69 See Joint Proposal, 76 FR 68,857. Several commenters expressed concern about the breadth of the ban on proprietary trading. 70 Some of these commenters stated that proprietary trading must be carefully and narrowly defined to avoid prohibiting activities that Congress did not intend to limit and to preclude significant, unintended consequences for capital markets, capital formation, and the broader economy. 71 Some commenters asserted that the proposed definition could result in banking entities being unwilling to take principal risk to provide liquidity for institutional investors; could unnecessarily constrain liquidity in secondary markets, forcing asset managers to service client needs through alternative non-U.S. markets; could impose substantial costs for all institutions, especially smaller and mid-size institutions; and could drive risk-taking to the shadow banking system. 72 Others urged the Agencies to determine that trading as agent, broker, or custodian for an affiliate was not proprietary trading. 73 70 See, e.g., Ass'n. of Institutional Investors (Feb. 2012); Capital Group; Comm. on Capital Markets Regulation; IAA; SIFMA et al. (Prop. Trading) (Feb. 2012); SVB; Chamber (Feb. 2012); Wellington. 71 See Ass'n. of Institutional Investors (Feb. 2012); GE (Feb. 2012); Invesco; Sen. Corker; Chamber (Feb. 2012). 72 See Chamber (Feb. 2012). 73 See Japanese Bankers Ass'n. Commenters also suggested alternative approaches for defining proprietary trading. In general, these approaches sought to provide a bright-line definition to provide increased certainty to banking entities 74 or make the prohibition easier to apply in practice. 75 One commenter stated the Agencies should focus on the economics of banking entities' transactions and ban trading if the banking entity is exposed to market risk for a significant period of time or is profiting from changes in the value of the asset. 76 Several commenters, including individual members of the public, urged the Agencies to prohibit banking entities from engaging in any kind of proprietary trading and require separation of trading from traditional banking activities. 77 After carefully considering comments, the Agencies are defining proprietary trading as engaging as principal for the trading account of the banking entity in any purchase or sale of one or more financial instruments. 78 The Agencies believe this effectively restates the statutory definition. The Agencies are not adopting commenters' suggested modifications to the proposed definition of proprietary trading or the general prohibition on proprietary trading because they generally appear to be inconsistent with Congressional intent. For instance, some commenters appeared to suggest an approach to defining proprietary trading that would capture only bright-line, speculative proprietary trading and treat the activities covered by the statutory exemptions as completely outside the rule. 79 However, such an approach would appear to be inconsistent with Congressional intent because, for instance, it would not give effect to the limitations on permitted activities in section 13(d) of the BHC Act. 80 For similar reasons, the Agencies are not adopting a bright-line definition of proprietary trading. 81 74 See, e.g., ABA (Keating); Ass'n. of Institutional Investors (Feb. 2012); BOK; George Bollenbacher; Credit Suisse (Seidel); NAIB et al.; SSgA (Feb. 2012); JPMC. 75 See Public Citizen. 76 See Sens. Merkley & Levin (Feb. 2012). 77 See generally Occupy; Public Citizen; AFR et al. (Feb. 2012). The Agencies received over fifteen thousand form letters in support of a rule with few exemptions, many of which expressed a desire to return to the regulatory scheme as governed by the Glass-Steagall affiliation provisions of the U.S. Banking Act of 1933, as repealed through the Graham-Leach-Bliley Act of 1999. See generally Sarah McGee; Christopher Wilson; Michael Itlis; Barry Rein; Edward Bright. Congress rejected such an approach, however, opting instead for the more narrowly tailored regulatory approach embodied in section 13 of the BHC Act. 78 See final rule § __.3(a). The final rule also replaces all references to the proposed term “covered financial position” with the term “financial instrument.” This change has no substantive impact because the definition of “financial instrument” is substantially identical to the proposed definition of “covered financial position.” Consistent with this change, the final rule replaces the undefined verbs “acquire” or “take” with the defined terms “purchase” or “sale” and “sell.” See final rule §§ __.3(c), __.2(u), (x). 79 See, e.g., Ass'n. of Institutional Investors (Feb. 2012); GE (Feb. 2012); Invesco; Sen. Corker; Chamber (Feb. 2012); JPMC. 80 See 156 Cong. Rec. S5895-96 (daily ed. July 15, 2010) (statement of Sen. Merkley) (stating the statute “permits underwriting and market-making-related transactions that are technically trading for the account of the firm but, in fact, facilitate the provision of near-term client-oriented financial services.”). 81 See ABA (Keating); Ass'n. of Institutional Investors (Feb. 2012); BOK; George Bollenbacher; Credit Suisse (Seidel); NAIB et al.; SSgA (Feb. 2012); JPMC. A number of commenters expressed concern that, as a whole, the proposed rule may result in certain negative economic impacts, including: (i) Reduced market liquidity; 82 (ii) wider spreads or otherwise increased trading costs; 83 (iii) higher borrowing costs for businesses or increased cost of capital; 84 and/or (iv) greater market volatility. 85 The Agencies have carefully considered commenters' concerns about the proposed rule's potential impact on overall market liquidity and quality. As discussed in more detail in Parts IV.A.2. and IV.A.3., the final rule will permit banking entities to continue to provide beneficial market-making and underwriting services to customers, and therefore provide liquidity to customers and facilitate capital-raising. However, the statute upon which the final rule is based prohibits proprietary trading activity that is not exempted. As such, the termination of non-exempt proprietary trading activities of banking entities may lead to some general reductions in liquidity of certain asset classes. Although the Agencies cannot say with any certainty, there is good reason to believe that to a significant extent the liquidity reductions of this type may be temporary since the statute does not restrict proprietary trading activities of other market participants. 86 Thus, over time, non-banking entities may provide much of the liquidity that is lost by restrictions on banking entities' trading activities. If so, eventually, the detrimental effects of increased trading costs, higher costs of capital, and greater market volatility should be mitigated. 82 See, e.g., AllianceBernstein; Obaid Syed; Rep. Bachus et al.; EMTA; NASP; Sen. Hagan; Investure; Lord Abbett; Sumitomo Trust; EFAMA; Morgan Stanley; Barclays; BoA; Citigroup (Feb. 2012); STANY; ABA (Keating); ICE; ICSA; SIFMA (Asset Mgmt.) (Feb. 2012); Putnam; ACLI (Feb. 2012); Wells Fargo (Prop. Trading); Capital Group; RBC; Columbia Mgmt.; SSgA (Feb. 2012); Fidelity; ICI (Feb. 2012); ISDA (Feb. 2012); Comm. on Capital Markets Regulation; Clearing House Ass'n.; Thakor Study. See also CalPERS (acknowledging that the systemic protections afforded by the Volcker Rule come at a price, including reduced liquidity to all markets). 83 See, e.g., AllianceBernstein; Obaid Syed; NASP; Investure; Lord Abbett; CalPERS; Credit Suisse (Seidel); Citigroup (Feb. 2012); ABA (Keating); SIFMA (Asset Mgmt.) (Feb. 2012); Putnam; Wells Fargo (Prop. Trading); Comm. on Capital Markets Regulation. 84 See, e.g., Rep. Bachus et al.; Members of Congress (Dec. 2011); Lord Abbett; Morgan Stanley; Barclays; BoA; Citigroup (Feb. 2012); ABA (Abernathy); ICSA; SIFMA (Asset Mgmt.) (Feb. 2012); Chamber (Feb. 2012); Putnam; ACLI (Feb. 2012); UBS; Wells Fargo (Prop. Trading); Capital Group; Sen. Carper et al.; Fidelity; Invesco; Clearing House Ass'n.; Thakor Study. 85 See, e.g., CalPERS (expressing the belief that a decline in banking entity proprietary trading will increase the volatility of the corporate bond market, especially during times of economic weakness or periods where risk taking declines, but noting that portfolio managers have experienced many different periods of market illiquidity and stating that the market will adapt post-implementation ( e.g., portfolio managers will increase their use of CDS to reduce economic risk to specific bond positions as the liquidation process of cash bonds takes more time, alternative market matching networks will be developed)); Morgan Stanley; Capital Group; Fidelity; British Bankers' Ass'n.; Invesco. 86 See David McClean; Public Citizen; Occupy. In response to commenters who expressed concern about risks associated with proprietary trading activities moving to non-banking entities, the Agencies note that section 13's prohibition on proprietary trading and related exemptions apply only to banking entities. See, e.g., Chamber (Feb. 2012). To respond to concerns raised by commenters while remaining consistent with Congressional intent, the final rule has been modified to provide that certain purchases and sales are not proprietary trading as described in more detail below. 87 87 See final rule § __.3(d). a. Definition of “Trading Account” As explained above, section 13 defines proprietary trading as engaging as principal “for the trading account of the banking entity” in certain types of transactions. Section 13(h)(6) of the BHC Act defines trading account as any account used for acquiring or taking positions in financial instruments principally for the purpose of selling in the near-term (or otherwise with the intent to resell in order to profit from short-term price movements), and any such other accounts as the Agencies may, by rule, determine. 88 88 See 12 U.S.C. 1851(h)(6). The proposed rule defined trading account to include three separate accounts. First, the proposed definition of trading account included, consistent with the statute, any account that is used by a banking entity to acquire or take one or more covered financial positions for short-term trading purposes (the “short-term trading account”). 89 The proposed rule identified four purposes that would indicate short-term trading intent: (i) Short-term resale; (ii) benefitting from actual or expected short-term price movements; (iii) realizing short-term arbitrage profits; or (iv) hedging one or more positions described in (i), (ii) or (iii). The proposed rule presumed that an account is a trading account if it is used to acquire or take a covered financial position (other than a position in the market risk rule trading account or the dealer trading account) that the banking entity holds for 60 days or less. 90 89 See proposed rule § __.3(b)(2)(i)(A). 90 See proposed rule § __.3(b)(2)(ii). Second, the proposed definition of trading account included, for certain entities, any account that contains positions that qualify for trading book capital treatment under the banking agencies' market risk capital rules other than positions that are foreign exchange derivatives, commodity derivatives or contracts of sale of a commodity for delivery (the “market risk rule trading account”). 91 “Covered positions” under the banking agencies' market-risk capital rules are positions that are generally held with the intent of sale in the short-term. 91 See proposed rule §§ __.3(b)(2)(i)(B); __.3(b)(3). Third, the proposed definition of trading account included any account used by a banking entity that is a securities dealer, swap dealer, or security-based swap dealer to acquire or take positions in connection with its dealing activities (the “dealer trading account”). 92 The proposed rule also included as a trading account any account used to acquire or take any covered financial position by a banking entity in connection with the activities of a dealer, swap dealer, or security-based swap dealer outside of the United States. 93 Covered financial positions held by banking entities that register or file notice as securities or derivatives dealers as part of their dealing activity were included because such positions are generally held for sale to customers upon request or otherwise support the firm's trading activities ( e.g., by hedging its dealing positions). 94 92 See proposed rule § __.3(b)(2)(i)(C). 93 See proposed rule § __.3(b)(2)(i)(C)(5). 94 See Joint Proposal, 76 FR 68,860. The proposed rule also set forth four clarifying exclusions from the definition of trading account. The proposed rule provided that no account is a trading account to the extent that it is used to acquire or take certain positions under repurchase or reverse repurchase arrangements, positions under securities lending transactions, positions for bona fide liquidity management purposes, or positions held by derivatives clearing organizations or clearing agencies. 95 95 See proposed rule § __.3(b)(2)(iii). Overall, commenters did not raise significant concerns with or objections to the short-term trading account. Several commenters argued that the definition of trading account should be limited to only this portion of the proposed definition of trading account. 96 However, a few commenters raised concerns regarding the treatment of arbitrage trading under the proposed rule. 97 Several commenters asserted that the proposed definition of trading account was too broad and covered trading not intended to be covered by the statute. 98 Some of these commenters maintained that the Agencies exceeded their statutory authority under section 13 of the BHC Act in defining trading account to include the market risk rule trading account and dealer trading account, and argued that the definition should be limited to the short-term trading account definition. 99 Commenters argued, for example, that an overly broad definition of trading account may cause traditional bank activities important to safety and soundness of a banking entity to fall within the prohibition on proprietary trading to the detriment of banking organizations, customers, and financial markets. 100 A number of commenters suggested modifying and narrowing the trading account definition to remove the implicit negative presumption that any position creates a trading account, or that all principal trading constitutes prohibited proprietary trading unless it qualifies for a narrowly tailored exemption, and to clearly exempt activities important to safety and soundness. 101 For example, one commenter recommended that a covered financial position be considered a trading account position only if it qualifies as a GAAP trading position. 102 A few commenters requested the Agencies define the phrase “short term” in the rule. 103 96 See ABA (Keating); JPMC. 97 See AFR et al. (Feb. 2012); Paul Volcker; Credit Suisse (Seidel); ISDA (Feb. 2012); Japanese Bankers Ass'n. 98 See ABA (Keating); Allen & Overy (on behalf of Large Int'l Banks with U.S. Operations); Am. Express; BoA; Goldman (Prop. Trading); ISDA (Feb. 2012); Japanese Bankers Ass'n.; JPMC; SIFMA et al. (Prop.Trading) (Feb. 2012); State Street (Feb. 2012). 99 See ABA (Keating); JPMC; SIFMA et al. (Prop.Trading) (Feb. 2012); State Street (Feb. 2012). 100 See ABA (Keating); Credit Suisse (Seidel). 101 See ABA (Keating); Ass'n. of Institutional Investors (Feb. 2012); BoA; Capital Group; IAA; Credit Suisse (Seidel); ICI (Feb. 2012); ISDA (Feb. 2012); NAIB et al.; SIFMA et al. (Prop.Trading) (Feb. 2012); SVB; Wellington. 102 See ABA (Keating). 103 See NAIB et al.; Occupy; but See Alfred Brock. Several commenters argued that the market risk rule should not be referenced as part of the definition of trading account. 104 A few of these commenters argued instead that the capital treatment of a position be used only as an indicative factor rather than a dispositive test. 105 One commenter thought that the market risk rule trading account was redundant because it includes only positions that have short-term trading intent. 106 Commenters also contended that it was difficult to consider and comment on this aspect of the proposal because the market risk capital rules had not been finalized. 107 104 See ABA; BoA; Goldman (Prop. Trading); ISDA (Feb. 2012); JPMC; SIFMA et al. (Prop.Trading) (Feb. 2012). 105 See BoA; SIFMA et al. (Prop.Trading) (Feb. 2012). 106 See ISDA (Feb. 2012). 107 See ABA (Keating); BoA; Goldman (Prop. Trading); ISDA (Feb. 2012); JPMC. The banking agencies adopted a final rule that amends their respective market risk capital rules on August 30, 2012. See 77 FR 53,060 (Aug. 30, 2012). The Agencies continued to receive and consider comments on the proposed rule to implement section 13 of the BHC Act after that time. A number of commenters objected to the dealer trading account prong of the definition. 108 Commenters asserted that this prong was an unnecessary and unhelpful addition that went beyond the requirements of section 13 of the BHC Act, and that it made the trading account determination more complex and difficult. 109 In particular, commenters argued that the dealer trading account was too broad and introduced uncertainty because it presumed that dealers always enter into positions with short-term intent. 110 Commenters also expressed concern about the difficulty of applying this test outside the United States and requested that, if this account is retained, the final rule be explicit about how it applies to a swap dealer outside the United States and treat U.S. swap dealers consistently. 111 108 See ABA (Keating); Allen & Overy (on behalf of Large Int'l Banks with U.S. Operations); Am. Express; Goldman (Prop. Trading); ISDA (Feb. 2012); Japanese Bankers Ass'n.; JPMC; SIFMA et al. (Prop.Trading) (Feb. 2012). 109 See ABA (Keating); Allen & Overy (on behalf of Large Int'l Banks with U.S. Operations); JPMC; State Street (Feb. 2012); ISDA (Feb. 2012); SIFMA et al. (Prop.Trading) (Feb. 2012). 110 See ABA (Keating); Am. Express; Goldman (Prop. Trading); ISDA (Feb. 2012); JPMC. 111 See Allen & Overy (on behalf of Large Int'l Banks with U.S. Operations); Am. Express; JPMC. In contrast, other commenters contended that the proposed rule's definition of trading account was too narrow, particularly in its focus on short-term positions, 112 or should be simplified. 113 One commenter argued that the breadth of the trading account definition was critical because positions excluded from the trading account definition would not be subject to the proposed rule. 114 One commenter supported the proposed definition of trading account. 115 Other commenters believed that reference to the market-risk rule was an important addition to the definition of trading account. Some expressed the view that it should include all market risk capital rule covered positions and not just those requiring short-term trading intent. 116 112 See Sens. Merkley & Levin (Feb. 2012); Occupy. 113 See, e.g., Public Citizen. 114 See AFR et al. (Feb. 2012). 115 See Alfred Brock. 116 See AFR et al. (Feb. 2012). Certain commenters proposed alternate definitions. Several commenters argued against using the term “account” and instead advocated applying the prohibition on proprietary trading to trading positions. 117 Foreign banks recommended applying the definition of trading account applicable to such banks in their home country, if the home country provided a clear definition of this term. 118 These commenters argued that new definitions in the proposed rule, like trading account, would require foreign banking entities to develop new and complex procedures and expensive systems. 119 117 See ABA (Keating); Goldman (Prop. Trading); NAIB et al. 118 See Japanese Bankers Ass'n.; Norinchukin. 119 See Japanese Bankers Ass'n. Commenters also argued that various types of trading activities should be excluded from the trading account definition. For example, one commenter asserted that arbitrage trading should not be considered trading account activity, 120 while other commenters argued that arbitrage positions and strategies are proprietary trading and should be included in the definition of trading account and prohibited by the final rule. 121 Another commenter argued that the trading account should include only positions primarily intended, when the position is entered into, to profit from short-term changes in the value of the assets, and that liquidity investments that do not have price changes and that can be sold whenever the banking entity needs cash should be excluded from the trading account definition. 122 120 See Alfred Brock. 121 See AFR et al. (Feb. 2012); Paul Volcker. 122 See NAIB et al. See infra Part IV.A.1.d.2. (discussing the liquidity management exclusion). After carefully reviewing the comments, the Agencies have determined to retain in the final rule the proposed approach for defining trading account that includes the short-term, market risk rule, and dealer trading accounts with modifications to address issues raised by commenters. The Agencies believe that this multi-prong approach is consistent with both the language and intent of section 13 of the BHC Act, including the express statutory authority to include “any such other account” as determined by the Agencies. 123 The final definition effectuates Congress's purpose to generally focus on short-term trading while addressing commenters' desire for greater certainty regarding the definition of the trading account. 124 In addition, the Agencies believe commenters' concerns about the scope of the proposed definition of trading account are substantially addressed by the refined exemptions in the final rule for customer-oriented activities, such as market making-related activities, and the exclusions from proprietary trading. 125 Moreover, the Agencies believe that it is appropriate to focus on the economics of a banking entity's trading activity to help determine whether it is engaged in proprietary trading, as discussed further below. 126 123 12 U.S.C. 1851(h)(6). 124 In response to commenters' concerns about the meaning of account, the Agencies note the term “trading account” is a statutory concept and does not necessarily refer to an actual account. Trading account is simply nomenclature for the set of transactions that are subject to the final rule's restrictions on proprietary trading. See ABA (Keating); Goldman (Prop. Trading); NAIB et al. 125 For example, several commenters' concerns about the potential impact of the proposed definition of trading account were tied to the perceived narrowness of the proposed exemptions. See ABA (Keating); Ass'n. of Institutional Investors (Feb. 2012); BoA; Capital Group; IAA; Credit Suisse (Seidel); ICI (Feb. 2012); ISDA (Feb. 2012); NAIB et al.; SIFMA et al. (Prop. Trading) (Feb. 2012); SVB; Wellington. 126 See Sens. Merkley & Levin (Feb. 2012). However, as discussed in this SUPPLEMENTARY INFORMATION, the Agencies are not prohibiting any trading that involves profiting from changes in the value of the asset, as suggested by this commenter, because permitted activities, such as market making, can involve price appreciation-related revenues. See infra Part IV.A.3. (discussing the final market-making exemption). As explained above, the short-term trading prong of the definition largely incorporates the statutory provisions. This prong covers trading involving short-term resale, price movements, and arbitrage profits, and hedging positions that result from these activities. Specifically, the reference to short-term resale is taken from the statute's definition of trading account. The Agencies continue to believe it is also appropriate to include in the short-term trading prong an account that is used by a banking entity to purchase or sell one or more financial instruments principally for the purpose of benefitting from actual or expected short-term price movements, realizing short-term arbitrage profits, or hedging one or more positions captured by the short-term trading prong. The provisions regarding price movements and arbitrage focus on the intent to engage in transactions to benefit from short-term price movements ( e.g., entering into a subsequent transaction in the near term to offset or close out, rather than sell, the risks of a position held by the banking entity to benefit from a price movement occurring between the acquisition of the underlying position and the subsequent offsetting transaction) or to benefit from differences in multiple market prices, including scenarios where movement in those prices is not necessary to realize the intended profit. 127 These types of transactions are economically equivalent to transactions that are principally for the purpose of selling in the near term or with the intent to resell to profit from short-term price movements, which are expressly covered by the statute's definition of trading account. Thus, the Agencies believe it is necessary to include these provisions in the final rule's short-term trading prong to provide clarity about the scope of the definition and to prevent evasion of the statute and final rule. 128 In addition, like the proposed rule, the final rule's short-term trading prong includes hedging one or more of the positions captured by this prong because the Agencies assume that a banking entity generally intends to hold the hedging position for only so long as the underlying position is held. 127 See Joint Proposal, 76 FR 68,857-68,858. 128 As a result, the Agencies are not excluding arbitrage trading from the trading account definition, as suggested by at least one commenter. See, e.g., Alfred Brock. The remaining two prongs to the trading account definition apply to types of entities that engage actively in trading activities. Each prong focuses on analogous or parallel short-term trading activities. A few commenters stated these prongs were duplicative of the short-term trading prong, and argued the Agencies should not include these prongs in the definition of trading account, or should only consider them as non-determinative factors. 129 To the extent that an overlap exists between the prongs of this definition, the Agencies believe they are mutually reinforcing, strengthen the rule's effectiveness, and may help simplify the analysis of whether a purchase or sale is conducted for the trading account. 130 129 See ISDA (Feb. 2012); JPMC; ABA (Keating); BoA; SIFMA et al. (Prop. Trading) (Feb. 2012). 130 See Occupy. The market risk capital prong covers trading positions that are covered positions for purposes of the banking agency market-risk capital rules, as well as hedges of those positions. Trading positions under those rules are positions held by the covered entity “for the purpose of short-term resale or with the intent of benefitting from actual or expected short-term price movements, or to lock-in arbitrage profits.” 131 This definition largely parallels the provisions of section 13(h)(4) of the BHC Act and mirrors the short-term trading account prong of both the proposed and final rules. Covered positions are trading positions under the rule that subject the covered entity to risks and exposures that must be actively managed and limited—a requirement consistent with the purposes of the section 13 of the BHC Act. 131 12 CFR part 225, Appendix E. Incorporating this prong into the trading account definition reinforces the consistency between governance of the types of positions that banking entities identify as “trading” for purposes of the market risk capital rules and those that are trading for purposes of the final rule under section 13 of the BHC Act. Moreover, this aspect of the final rule reduces the compliance burden on banking entities with substantial trading activities by establishing a clear, bright-line rule for determining that a trade is within the trading account. 132 132 Accordingly, the Agencies are not using a position's capital treatment as merely an indicative factor, as suggested by a few commenters. After reviewing comments, the Agencies also continue to believe that financial instruments purchased or sold by registered dealers in connection with their dealing activity are generally held with short-term intent and should be captured within the trading account. The Agencies believe the scope of the dealer prong is appropriate because, as noted in the proposal, positions held by a registered dealer in connection with its dealing activity are generally held for sale to customers upon request or otherwise support the firm's trading activities ( e.g., by hedging its dealing positions), which is indicative of short-term intent. 133 Moreover, the final rule includes a number of exemptions for the activities in which securities dealers, swap dealers, and security-based swap dealers typically engage, such as market making, hedging, and underwriting. Thus, the Agencies believe the broad scope of the dealer trading account is balanced by the exemptions that are designed to permit dealer entities to continue to engage in customer-oriented trading activities, consistent with the statute. This approach is designed to ensure that registered dealer entities are engaged in permitted trading activities, rather than prohibited proprietary trading. 133 See Joint Proposal, 76 FR 68,860. The final rule adopts the dealer trading account substantially as proposed, 134 with streamlining that eliminates the specific references to different types of securities and derivatives dealers. The final rule adopts the proposed approach to covering trading accounts of banking entities that regularly engage in the business of a dealer, swap dealer, or security-based swap dealer outside of the United States. In the case of both domestic and foreign entities, this provision applies only to financial instruments purchased or sold in connection with the activities that require the banking entity to be licensed or registered to engage in the business of dealing, which is not necessarily all of the activities of that banking entity. 135 Activities of a banking entity that are not covered by the dealer prong may, however, be covered by the short-term or market risk rule trading accounts if the purchase or sale satisfies the requirements of §§ __.3(b)(1)(i) or (ii). 136 134 See final rule § __.3(b)(1)(iii). 135 An insured depository institution may be registered as a swap dealer, but only the swap dealing activities that require it to be so registered are covered by the dealer trading account. If an insured depository institution purchases or sells a financial instrument in connection with activities of the insured depository institution that do not trigger registration as a swap dealer, such as lending, deposit-taking, the hedging of business risks, or other end-user activity, the financial instrument is included in the trading account only if the instrument falls within the statutory trading account under § __.3(b)(1)(i) or the market risk rule trading account under § __.3(b)(1)(ii) of the final rule. 136 See final rule §§ __.3(b)(1)(i) and (ii). A few commenters stated that they do not currently analyze whether a particular activity would require dealer registration, so the dealer prong of the trading account definition would require banking entities to engage in a new type of analysis. 137 The Agencies recognize that banking entities that are registered dealers may not currently engage in such an analysis with respect to their current trading activities and, thus, this may represent a new regulatory requirement for these entities. If the regulatory analysis otherwise engaged in by banking entities is substantially similar to the dealer prong analysis required under the trading account definition, then any increased compliance burden could be small or insubstantial. 138 137 See, e.g., SIFMA et al. (Prop. Trading) (Feb. 2012); Goldman (Prop. Trading). 138 See, e.g., Goldman (Prop. Trading) (“For instance, a banking entity's market making-related activities with respect to credit trading may involve making a market in bonds (traded in a broker-dealer), single-name CDSs (in a security-based swap dealer) and CDS indexes (in a swap dealer). For regulatory or other reasons, these transactions could take place in different legal entities. . .”). In response to commenters' concerns regarding the application of this prong to banking entities acting as dealers in jurisdictions outside the United States, 139 the Agencies continue to believe including the activities of a banking entity engaged in the business of a dealer, swap dealer, or security-based swap dealer outside of the United States, to the extent the instrument is purchased or sold in connection with the activities of such business, is appropriate. As noted above, dealer activity generally involves short-term trading. Further, the Agencies are concerned that differing requirements for U.S. and foreign dealers may lead to regulatory arbitrage. For foreign banking entities acting as dealers outside of the United States that are eligible for the exemption for trading conducted by foreign banking entities, the Agencies believe the risk-based approach to this exemption in the final rule should help address the concerns about the scope of this prong of the definition. 140 139 See SIFMA et al. (Prop. Trading) (Feb. 2012); JPMC; Allen & Overy (on behalf of Large Int'l Banks with U.S. Operations). 140 See final rule § __.6(e). In response to one commenter's suggestion that the Agencies define the term trading account to allow a foreign banking entity to use of the relevant foreign regulator's definition of this term, where available, the Agencies are concerned such an approach could lead to regulatory arbitrage and otherwise inconsistent applications of the rule. 141 The Agencies believe this commenter's general concern about the impact of the statute and rule on foreign banking entities' activities outside the United States should be substantially addressed by the exemption for trading conducted by foreign banking entities under § __.6(e) of the final rule. 141 See Japanese Bankers Ass'n. Finally, the Agencies have declined to adopt one commenter's recommendation that a position in a financial instrument be considered a trading account position only if it qualifies as a GAAP trading position. 142 The Agencies continue to believe that formally incorporating accounting standards governing trading securities is not appropriate because: (i) The statutory proprietary trading provisions under section 13 of the BHC Act applies to financial instruments, such as derivatives, to which the trading security accounting standards may not apply; (ii) these accounting standards permit companies to classify, at their discretion, assets as trading securities, even where the assets would not otherwise meet the definition of trading securities; and (iii) these accounting standards could change in the future without consideration of the potential impact on section 13 of the BHC Act and these rules. 143 142 See ABA (Keating). 143 See Joint Proposal, 76 FR 68,859. b. Rebuttable Presumption for the Short-Term Trading Account The proposed rule included a rebuttable presumption clarifying when a covered financial position, by reason of its holding period, is traded with short-term intent for purposes of the short-term trading account. The Agencies proposed this presumption primarily to provide guidance to banking entities that are not subject to the market risk capital rules or are not covered dealers or swap entities and accordingly may not have experience evaluating short-term trading intent. In particular, § __.3(b)(2)(ii) of the proposed rule provided that an account would be presumed to be a short-term trading account if it was used to acquire or take a covered financial position that the banking entity held for a period of 60 days or less. Several commenters supported the rebuttable presumption, but suggested either shortening the holding period to 30 days or less, 144 or extending the period to 90 days, 145 to several months, 146 or to one year. 147 Some of these commenters argued that specifying an overly short holding period would be contrary to the statute, invite gamesmanship, 148 and miss speculative positions held for longer than the specified period. 149 Commenters also suggested turning the presumption into a safe harbor 150 or into guidance. 151 144 See Japanese Bankers Ass'n. 145 See Capital Group. 146 See AFR et al. (Feb. 2012). 147 See Sens. Merkley & Levin (Feb. 2012); Public Citizen (arguing that one-year demarks tax law covering short term capital gains). 148 See Sens. Merkley & Levin (Feb. 2012). 149 See Occupy. 150 See Capital Group. 151 See SIFMA et al. (Prop. Trading) (Feb. 2012). Other commenters opposed the inclusion of the rebuttable presumption for a number of reasons and requested that it be removed. 152 For example, these commenters argued that the presumption had no statutory basis; 153 was arbitrary; 154 was not supported by data, facts, or analysis; 155 would dampen market-making and underwriting activity; 156 or did not take into account the nature of trading in different types of securities. 157 Some commenters also questioned whether the Agencies would interpret rebuttals of the presumption consistently, 158 and stressed the difficulty and costliness of rebutting the presumption, 159 such as enhanced documentation or other administrative burdens. 160 One foreign banking association also argued that requiring foreign banking entities to rebut a U.S. regulatory requirement would be costly and inappropriate given that the trading activities of the banking entity are already reviewed by home country supervisors. 161 This commenter also contended that the presumption could be problematic for financial instruments purchased for long-term investment purposes that are closed within 60 days due to market fluctuations or other changed circumstances. 162 152 See ABA (Keating); Am. Express; Business Roundtable; Capital Group; ICI (Feb. 2012); Investure; JPMC; Liberty Global; STANY; Chamber (Feb. 2012). 153 See ABA (Keating); JPMC; Chamber (Feb. 2012). 154 See Am. Express; ICI (Feb. 2012). 155 See ABA (Keating); Chamber (Feb. 2012). 156 See AllianceBernstein; Business Roundtable; ICI (Feb. 2012); Investure; Liberty Global; STANY. Because the rebuttable presumption does not impact the availability of the exemptions for underwriting, market making, and other permitted activities, the Agencies do not believe this provision creates any additional burdens on permissible activities. 157 See Am. Express (noting that most foreign exchange forward transactions settle in less than one week and are used as commercial payment instruments, and not speculative trades); Capital Group. 158 See ABA (Keating). As discussed below in Part IV.C., the Agencies expect to continue to coordinate their supervisory efforts related to section 13 of the BHC Act and to share information as appropriate in order to effectively implement the requirements of that section and the final rule. 159 See ABA (Keating); AllianceBernstein; Capital Group; Japanese Bankers Ass'n.; Liberty Global; JPMC. 160 See NAIB et al. ; Capital Group. 161 See Japanese Bankers Ass'n. As noted above, the Agencies believe concerns about the impacts of the definition of trading account on foreign banking entity trading activity outside of the United States are substantially addressed by the final rule's exemption for proprietary trading conducted by foreign banking entities in final rule § .6(e). 162 Id. After carefully considering the comments received, the Agencies continue to believe the rebuttable presumption is appropriate to generally define the meaning of “short-term” for purposes of the short-term trading account, especially for small and regional banking entities that are not subject to the market risk capital rules and are not registered dealers or swap entities. The range of comments the Agencies received on what “short-term” should mean—from 30 days to one year—suggests that a clear presumption would ensure consistency in interpretation and create a level playing field for all banking entities with covered trading activities subject to the short-term trading account. Based on their supervisory experience, the Agencies find that 60 days is an appropriate cut off for a regulatory presumption. 163 Further, because the purpose of the rebuttable presumption is to simplify the process of evaluating whether individual positions are included in the trading account, the Agencies believe that implementing different holding periods based on the type of financial instrument would insert unnecessary complexity into the presumption. 164 The Agencies are not providing a safe harbor or a reverse presumption ( i.e., a presumption for positions that are outside of the trading account), as suggested by some commenters, in recognition that some proprietary trading could occur outside of the 60 day period. 165 163 See final rule § .3(b)(2). Commenters did not provide persuasive evidence of the benefits associated with a rebuttable presumption for positions held for greater or fewer than 60 days. 164 See, e.g., Am. Express; Capital Group; Sens. Merkley & Levin (Feb. 2012). 165 See Capital Group; AFR et al. (Feb. 2012); Sens. Merkley & Levin (Feb. 2012); Public Citizen; Occupy. Adopting a presumption allows the Agencies and affected banking entities to evaluate all the facts and circumstances surrounding trading activity in determining whether the activity implicates the purpose of the statute. For example, trading in a financial instrument for long-term investment that is disposed of within 60 days because of unexpected developments ( e.g., an unexpected increase in the financial instrument's volatility or a need to liquidate the instrument to meet unexpected liquidity demands) may not be trading activity covered by the statute. To reduce the costs and burdens of rebutting the presumption, the Agencies will allow a banking entity to rebut the presumption for a group of related positions. 166 166 The Agencies believe this should help address commenters' concerns about the burdens associated with rebutting the presumption. See ABA (Keating); AllianceBernstein; Capital Group; Japanese Bankers Ass'n.; Liberty Global; JPMC; NAIB et al. ; Capital Group. The final rule provides three clarifying changes to the proposed rebuttable presumption. First, in response to comments, the final rule replaces the reference to an “account” that is presumed to be a trading account with the purchase or sale of a “financial instrument.” 167 This change clarifies that the presumption only applies to the purchase or sale of a financial instrument that is held for fewer than 60 days, and not the entire account that is used to make the purchase or sale. Second, the final rule clarifies that basis trades, in which a banking entity buys one instrument and sells a substantially similar instrument (or otherwise transfers the first instrument's risk), are subject to the rebuttable presumption. 168 Third, in order to maintain consistency with definitions used throughout the final rule, the references to “acquire” or “take” a financial position have been replaced with references to “purchase” or “sell” a financial instrument. 169 167 See, e.g., ABA (Keating); Clearing House Ass'n.; JPMC. 168 The rebuttable presumption covered these trades in the proposal, but the final rule's use of “financial instrument” rather than “covered financial position” necessitated clarifying this point in the rule text. See final rule § .3(b)(2). See also Public Citizen. 169 The Agencies do not believe these revisions have a substantive effect on the operation or scope of the final rule in comparison to the statute or proposed rule. c. Definition of “Financial Instrument” Section 13 of the BHC Act generally prohibits proprietary trading, which is defined in section 13(h)(4) to mean engaging as principal for the trading account in any purchase or sale of any security, any derivative, any contract of sale of a commodity for future delivery, any option on any such security, derivative, or contract, or any other security or financial instruments that the Agencies may, by rule, determine. 170 The proposed rule defined the term “covered financial position” to reference the instruments listed in section 13(h)(4), including: (i) A security, including an option on a security; (ii) a derivative, including an option on a derivative; or (iii) a contract of sale of a commodity for future delivery, or an option on such a contract. 171 To provide additional clarity, the proposed rule also provided that, consistent with the statute, any position that is itself a loan, a commodity, or foreign exchange or currency was not a covered financial position. 172 170 See 12 U.S.C. 1851(h)(4). 171 See proposed rule § .3(c)(3)(i). 172 See proposed rule § .3(c)(3)(ii). The proposal also defined a number of other terms used in the definition of covered financial position, including commodity, derivative, loan, and security. 173 These terms were generally defined by reference to the federal securities laws or the Commodity Exchange Act because these existing definitions are generally well-understood by market participants and have been subject to extensive interpretation in the context of securities, commodities, and derivatives trading. 173 See proposed rule § .2(l), (q), (w); § .3(c)(1) and (2). As noted above, the proposed rule included derivatives within the definition of covered financial position. Derivative was defined to include any swap (as that term is defined in the Commodity Exchange Act) and security-based swap (as that term is defined in the Exchange Act), in each case as further defined by the CFTC and SEC by joint regulation, interpretation, guidance, or other action, in consultation with the Board pursuant to section 712(d) of the Dodd-Frank Act. 174 The proposed rule also included within the definition of derivative certain other transactions that, although not included within the definition of swap or security-based swap, also appear to be, or operate in economic substance as, derivatives, and which if not included could permit banking entities to engage in proprietary trading that is inconsistent with the purpose of section 13 of the BHC Act. Specifically, the proposed definition also included: (i) Any purchase or sale of a nonfinancial commodity for deferred shipment or delivery that is intended to be physically settled; (ii) any foreign exchange forward or foreign exchange swap (as those terms are defined in the Commodity Exchange Act); 175 (iii) any agreement, contract, or transaction in foreign currency described in section 2(c)(2)(C)(i) of the Commodity Exchange Act; 176 (iv) any agreement, contract, or transactions in a commodity other than foreign currency described in section 2(c)(2)(D)(i) of the Commodity Exchange Act; 177 and (v) any transactions authorized under section 19 of the Commodity Exchange Act. 178 In addition, the proposed rule excluded from the definition of derivative (i) any consumer, commercial, or other agreement, contract, or transaction that the CFTC and SEC have further defined by joint regulation, interpretation, guidance, or other action as not within the definition of swap or security-based swap, and (ii) any identified banking product, as defined in section 402(b) of the Legal Certainty for Bank Products Act of 2000 (7 U.S.C. 27(b)), that is subject to section 403(a) of that Act (7 U.S.C. 27a(a)). 174 See 7 U.S.C. 1a(47) (defining “swap”); 15 U.S.C. 78c(a)(68) (defining “security-based swap”). 175 7 U.S.C. 1a(24), (25). 176 7 U.S.C. 2(c)(2)(C)(i). 177 7 U.S.C. 2(c)(2)(D)(i). 178 7 U.S.C. 23. Commenters expressed a variety of views regarding the definition of covered financial position, as well as other defined terms used in that definition. For instance, some commenters argued that the definition should be expanded to include transactions in spot commodities or foreign currency, even though those instruments are not included by the statute. 179 Other commenters strongly supported the exclusion of spot commodity and foreign currency transactions as consistent with the statute, arguing that these instruments are part of the traditional business of banking and do not represent the types of instruments that Congress designed section 13 to address. These commenters argued that including spot commodities and foreign [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-31511. Public record. Not legal advice.