Order Pursuant to Section 36 of the Securities Exchange Act of 1934 Granting Temporary Exemptions From Clearing Agency Registration Requirements Under Section 17A(b) of the Exchange Act for Entities Providing Certain Clearing Services for Security-Based Swaps, 39963-39966 [2011-17053]
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Federal Register / Vol. 76, No. 130 / Thursday, July 7, 2011 / Notices
Washington, DC 20549, on official
business days between the hours of 10
a.m. and 3 p.m. Copies of such filing
also will be available for inspection and
copying at the principal office of the
Exchange. All comments received will
be posted without change; the
Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–
NYSEArca–2011–40 and should be
submitted on or before July 28, 2011.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.19
Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011–16963 Filed 7–6–11; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–64796; File No. S7–28–11]
Order Pursuant to Section 36 of the
Securities Exchange Act of 1934
Granting Temporary Exemptions From
Clearing Agency Registration
Requirements Under Section 17A(b) of
the Exchange Act for Entities
Providing Certain Clearing Services for
Security-Based Swaps
July 1, 2011.
I. Introduction
Title VII of the Dodd-Frank Wall
Street Reform and Consumer Protection
Act of 2010 (‘‘Dodd-Frank Act’’),1
amends the Securities Exchange Act of
1934 (‘‘Exchange Act’’) to provide for
the comprehensive regulation of
security-based swaps 2 by the Securities
19 17
CFR 200.30–3(a)(12).
Law 111–203.
2 Section 761(a)(6) of the Dodd-Frank Act defines
a ‘‘security-based swap’’ as any agreement, contract,
or transaction that is a ‘‘swap,’’ as defined in
section 1a(47) of the Commodity Exchange Act, 7
U.S.C. 1a(47), that is based on an index that is a
narrow-based security index, a single security, or a
loan, including any interest therein or on the value
thereof; or the occurrence, nonoccurrence, or extent
of the occurrence of an event relating to a single
issuer of a security or the issuers of securities in a
narrow-based security index, provided that such
event directly affects the financial statements,
financial condition, or financial obligations of the
issuer. See section 3(a)(68) of the Securities
Exchange Act of 1934 (‘‘Exchange Act’’), 15 U.S.C.
78c(a)(68) (as added by section 761(a)(6) of the
Dodd-Frank Act). Section 712(d) of the Dodd-Frank
Act provides that the Commission and the
Commodity Futures Trading Commission (‘‘CFTC’’),
in consultation with the Board of Governors of the
Federal Reserve System, shall, among other things,
jointly further define the terms ‘‘swap’’ and
‘‘security-based swap.’’ See SEC Release No. 9204
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1 Public
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and Exchange Commission
(‘‘Commission’’).3 Among other things,
Title VII seeks to ensure that, wherever
possible and appropriate, derivatives
contracts formerly traded exclusively in
the over-the-counter (‘‘OTC’’) market are
centrally cleared.4 One of the key ways
in which the Dodd-Frank Act seeks to
mitigate risk in the security-based swap
market is by requiring that entities that
clear and settle security-based swaps be
registered with the Commission.
Specifically, section 763(b) of the DoddFrank Act adds a new section 17A(g) to
the Exchange Act, which directs entities
that use instrumentalities of interstate
commerce to perform clearing agency
functions for security-based swaps to
register with the Commission.5
Section 763(b) of the Dodd-Frank Act
also directs the Commission, by adding
new sections 17A(i) and (j) of the
Exchange Act, to adopt rules for the
implementation of the registration
requirement in new section 17A(g). The
Title VII amendments for which rules
are not required generally are effective
on July 16, 2011 (360 days after
enactment of the Dodd-Frank Act,
referred to herein as the ‘‘Effective
Date’’). Provisions that require rules for
implementation become effective not
less than 60 days after publication of the
related final rule or on July 16, 2011,
whichever is later.6
Section 17A(j) of the Exchange Act
requires the Commission to adopt rules
governing persons that are registered as
clearing agencies for security-based
swaps under the Exchange Act.7 Section
17A(i) of the Exchange Act provides
that, to be registered and to maintain
39963
registration as a clearing agency that
clears security-based swap transactions,
a clearing agency must comply with
such standards as the Commission may
establish by rule.8 Consistent with these
provisions, as well as provisions in Title
VIII of the Dodd-Frank Act,9 the
Commission on March 3, 2011 proposed
rules regarding registration of clearing
agencies and the operation and
governance of clearing agencies,
including clearing agencies that clear
security-based swaps.10 Pursuant to
section 774 of the Dodd-Frank Act,
discussed above, compliance with
section 17A(g) of the Exchange Act will
not be required as of the Effective Date
because sections 17A(i) and (j) require
rulemaking to implement the
registration requirement pursuant to
section 17A(g) of clearing agencies that
clear security-based swap
transactions.11 Instead compliance with
section 17A(g) of the Exchange Act will
be required not less than 60 days after
the publication of final rules relating to
registration of clearing agencies that
clear security-based swaps pursuant to
sections 17A(i) and (j) of the Exchange
Act.
In contrast to section 17A(g) of the
Exchange Act, the registration
requirement of section 17A(b) of the
Exchange Act, which applies to all
clearing agencies, will apply to securitybased swap clearing agencies when the
provision of the Dodd-Frank Act that
amends the definition of ‘‘security’’
under the Exchange Act to include
security-based swaps becomes effective,
i.e., on the Effective Date.12
8 Id.
(April 29, 2011), 76 FR 32880 (June 7, 2011)
(proposing product definitions contained in Title
VII of the Dodd-Frank Act).
3 Section 761(a)(2) of the Dodd-Frank Act
includes security-based swaps in the definition of
‘‘security’’ in section 3(a)(10) of the Exchange Act,
15 U.S.C. 78c. See also section 768(a)(1) of the
Dodd-Frank Act (amending section 2(a)(1) of the
Securities Act of 1933, 15 U.S.C. 77b(a)(1), to
include security-based swaps in the definition of
‘‘security’’).
4 See, e.g., Report of the Senate Committee on
Banking, Housing, and Urban Affairs regarding The
Restoring American Financial Stability Act of 2010,
S. Rep. No. 111–176 at 34 (stating that ‘‘[s]ome parts
of the OTC market may not be suitable for clearing
and exchange trading due to individual business
needs of certain users. Those users should retain
the ability to engage in customized, uncleared
contracts while bringing in as much of the OTC
market under the centrally cleared and exchangetraded framework as possible.’’).
5 Public Law 111–203 § 763(b).
6 See section 774 of the Dodd-Frank Act, 15
U.S.C. 77b note. See also Exchange Act Release No.
64678 (June 15, 2011), granting temporary
exemptions and other temporary relief, together
with information on compliance dates for new
provisions of the Exchange Act applicable to
security-based swaps.
7 Public Law 111–203 § 763(b).
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9 Title VIII of the Dodd-Frank Act, entitled the
Payment, Clearing, and Settlement Supervision Act
of 2010 (‘‘Clearing Supervision Act’’), establishes an
enhanced supervisory and risk control system for
systemically important clearing agencies and other
financial market utilities (‘‘FMUs’’). It provides that
the Commission may prescribe regulations
containing risk management standards, taking into
consideration relevant international standards and
existing prudential requirements, for any
designated clearing entities it regulates. See section
805(a)(2) of the Clearing Supervision Act. Those
regulations may govern: ‘‘(A) the operations related
to payment, clearing, and settlement activities of
such designated clearing entities; and (B) the
conduct of designated activities by such financial
institutions.’’ 12 U.S.C. 5464(a)(2).
10 Securities Exchange Act Release No. 64017
(March 3, 2011), 76 FR 14472 (March 16, 2011) (File
No. S7–08–11) (the ‘‘Clearing Agency Proposing
Release’’).
11 Securities Exchange Act Release No. 64678
(June 15, 2011) 76 FR 36287 (June 22, 2011) (File
No. S7–24–11) (Temporary Exemptions and Other
Temporary Relief, Together With Information on
Compliance Dates for New Provisions of the
Securities Exchange Act of 1934 Applicable to
Security-Based Swaps).
12 See section 761(a)(2) of the Dodd-Frank Act
(amending section 3(a)(10) of the Exchange Act, 15
U.S.C. 78c(a)(10)).
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Accordingly, absent relief by the
Commission, any entity that functions
as a clearing agency for security-based
swaps would be required to register
with the Commission pursuant to
section 17A(b)(1) of the Exchange Act as
of the Effective Date.13
The Commission notes that the term
‘‘clearing agency’’ under section
3(a)(23)(A) of Exchange Act is defined
broadly to include any person who:
• Acts as an intermediary in making
payments or deliveries or both in
connection with transactions in
securities;
• Provides facilities for the
comparison of data regarding the terms
of settlement of securities transactions,
to reduce the number of settlements of
securities transactions, or for the
allocation of securities settlement
responsibilities;
• Acts as a custodian of securities in
connection with a system for the central
handling of securities whereby all
securities of a particular class or series
of any issuer deposited within the
system are treated as fungible and may
be transferred, loaned, or pledged by
bookkeeping entry, without physical
delivery of securities certificates (such
as a securities depository); or
• Otherwise permits or facilitates the
settlement of securities transactions or
the hypothecation or lending of
securities without physical delivery of
securities certificates (such as a
securities depository).14
Based on this broad definition, the
Commission indicated in the ‘‘Clearing
Agency Proposing Release’’ that it
preliminarily believes that certain
service providers that facilitate securitybased swap contract management may
meet the clearing agency definition.15
The Clearing Agency Proposing Release
has only recently been issued and the
Commission is still considering these
services in the context of the Clearing
Agency Proposing Release and the
comments received on the proposing
release. Specifically, the Commission
indicated it preliminarily believes that
Collateral Management Services, Trade
Matching Services, and Tear Up and
Compression Services (as defined
13 Section 17A(b)(1) provides (with limited
exceptions) that it shall be unlawful for any clearing
agency, unless registered in accordance with this
subsection, directly or indirectly, to make use of the
mails or any means or instrumentality of interstate
commerce to perform the functions of a clearing
agency with respect to any security. 15 U.S.C. 78q–
1(b)(1). Upon the effective date of section 761(a)(2),
security-based swaps will be included in the
definition of a security in section 3(a)(10). See
supra note 3.
14 15 U.S.C. 78c(a)(23)(A).
15 See Securities Exchange Act Release No. 64017,
supra note 9.
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below), if engaged in by security-based
swap market participants, would qualify
these participants as clearing agencies
and therefore trigger the statutory
requirement to register as clearing
agencies: 16
• ‘‘Collateral Management Services’’:
Collateral management generally
involves calculating collateral
requirements and facilitating the
transfer of collateral between
counterparties. In the Clearing Agency
Proposing Release, the Commission
stated that entities that calculate net
payment obligations among
counterparties for security-based swaps
and provide instructions for payments,
including with respect to quarterly
interest, credit events, and upfront fees,
are likely acting as intermediaries in
making payments or deliveries or both
in connection with transactions in
securities.
• ‘‘Trade Matching Services’’: Trade
matching generally is the process
whereby an intermediary compares each
market participant’s trade data regarding
the terms of settlement of securities
transactions, in order to reduce the
number of settlements of securities
transactions, or to allocate securities
settlement responsibilities. This
includes activities of an intermediary
that captures trade information
regarding a securities transaction and
performs an independent comparison of
that information that results in the
issuance of binding matched terms to
the transaction.17
• ‘‘Tear Up and Compression
Services’’: 18 Based on discussions
between the Commission staff and
16 The Commission stresses that the functions
highlighted herein and in the Clearing Agency
Proposing Release are not an exhaustive list and
urges each security-based swap service provider to
consider whether its functions place it within the
clearing agency definition.
17 See also Exchange Act Release No. 39829
(April 6, 1998), 63 FR 17943 (April 13, 1998) (File
No. S7–10–98) (‘‘A vendor that provides a matching
service will actively compare trade and allocation
information and will issue the affirmed
confirmation that will be used in settling the
transaction.’’).
18 Tear-up or multilateral portfolio trade
compression services for OTC derivatives seek to
eliminate unnecessary or duplicative trades from
the market while maintaining a market participant’s
overall exposure or risk in the market. This allows
dealers to reduce operational risk, freeing up
liquidity and capital. By reducing the gross notional
outstanding of OTC derivatives in normal times,
portfolio trade compression provides effective
measures to address the risk to individual dealers
associated with uncoordinated, disorderly close-out
transactions of the positions of a defaulting major
dealer. Compression is offered by several vendors,
and major market participants are now engaged in
regular compression exercises. See Financial
Stability Board, Implementing OTC Derivatives
Market Reforms, (October 25, 2010), available at
https://www.Financialstabilityboard.org/
publications/r_101025.pdf.
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market participants, the Commission
understands that tear up and
compression service providers generally
operate in the following manner:
• The providers execute an algorithm
seeking to reduce the gross notional
value of trades and the total number of
trades but do not alter the counterparty
risk or market risk associated with the
trades beyond specified parameters.
• When using a tear up and
compression service, the users send all
transactions they are willing to
terminate to the service. Each user sets
tolerances for counterparty exposures it
is willing to absorb and how much
money it is willing to pay in trade
termination costs. The submitted
transactions are matched using an
algorithm and tolerances specified by
the user.
• The service then proposes
terminations across all parties who
participated, including payments for
termination. The users consider the
proposal, check their own records, and,
if they choose to accept the proposal,
fax or otherwise notify their acceptance
to the service. If the service receives
acceptances from all users, the
transaction is considered binding, and
the relevant transactions are considered
terminated.
• The users generally exchange
payments and confirmations outside the
service. The tear up and compression
service provider sends the completed
files to a third party service provider for
matching, and the ‘‘torn up’’
transactions are terminated in bulk at
the security-based swap data repository,
which maintains a record of which
parties terminated the ‘‘torn up’’ trades.
The Commission is using its authority
under section 36 of the Exchange Act 19
to provide a conditional temporary
exemption, until the compliance date
for the final rules relating to registration
of clearing agencies that clear securitybased swaps pursuant to sections 17A(i)
and (j) of the Exchange Act, from the
registration requirement in section
17A(b)(1) of the Exchange Act to any
clearing agency that may be required to
register with the Commission solely as
a result of providing Collateral
Management Services, Trade Matching
Services, Tear Up and Compression
Services, and/or substantially similar
services for security based swaps (the
‘‘Exempted Activities’’). As discussed
below, the Commission believes that
such action is necessary and appropriate
in the public interest and consistent
with the protection of investors because
this conditional temporary exemption
would avoid the potential for disruption
19 15
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of these important services to investors
pending the implementation of the
registration framework and related
standards and operational requirements
contemplated under sections 17A(g), (i),
and (j) of the Exchange Act, and
pending further consideration of the
appropriate regulatory treatment of
persons conducting Exempted
Activities. The Commission also
believes that the temporary conditional
exemption is necessary and appropriate
because it will provide legal certainty to
the security-based swap market and
security-based swap market
participants.
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II. Discussion
Our action today provides a
temporary exemption, until the
compliance date for the final rules
relating to registration of clearing
agencies that clear security-based swaps
pursuant to sections 17A(i) and (j) of the
Exchange Act, from section 17A(b)(1) of
the Exchange Act to persons conducting
Exempted Activities. This temporary
exemption is subject to a condition that
is designed to provide greater
information regarding persons that are
using this exemption to conduct
Exempted Activities and the nature of
these activities.20 Specifically, entities
relying on the temporary exemption
must provide notice to the Commission
with identifying information consisting
of the full legal name of the person, a
description of the person’s corporate
structure, contact person and contact
information. Such indentifying
information is needed to provide the
Commission with information regarding
who is seeking to use the exemption and
how to contact such persons. In
addition, they must provide the
Commission with a detailed description
of the Exempted Activities they
conduct, including the nature of
services performed, number and nature
of parties to whom services are
provided, and the volume of
transactions conducted in connection
with the services performed for each of
the last two years. The Commission is
20 The Paperwork Reduction Act of 1993 (‘‘PRA’’),
44 U.S.C. 3501 et seq., defines a ‘‘collection of
information’’ as ‘‘the obtaining, causing to be
obtained, soliciting or requiring the disclosure to
third parties or the public, of facts or opinions by
or for an agency, regardless of form or format,
calling for * * * answers to identical questions
posed to, or identical reporting or recordkeeping
requirements imposed on, ten or more persons
* * *.’’ 44 U.S.C. 3502(3)(A). The Commission
preliminarily does not believe that the reporting
and recordkeeping provisions in this Order contain
‘‘collection of information requirements’’ within the
meaning of the PRA because fewer than ten persons
are expected to rely on the exemption based on our
discussions with industry participants regarding
entities engaged in Exempted Activities.
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requiring this information in order to
better understand the types of services
that are being provided pursuant to this
exemption and the role such services
play in the security-based swap market.
The notice must be provided to the
Commission within twenty-one days of
relying on this exemption. The
Commission believes twenty-one days
should provide sufficient time for an
entity to prepare the information
required in the notice, including a
detailed description of the Exempted
Activities it provides.
In light of the condition to this
exemptive order and the temporary
duration of the relief, the Commission
believes this exemption should help to
facilitate the aim of the Dodd-Frank Act
to ensure that clearing functions are
appropriately utilized to reduce risk in
the OTC market for derivatives.21
Entities that conduct Exempted
Activities can play an important role in
facilitating risk reduction in the
security-based swap market, including
by helping to reduce the outstanding
number of trades and providing useful
operational functions for clearing
security-based swaps. Persons
conducting Exempted Activities, to the
extent they are required to register
under section 17A(g), will need time to
consider and come into compliance
with requirements yet to be adopted by
the Commission pertaining to clearing
agencies that clear security-based
swaps. As a result, absent the exemption
granted by this order, the ability of such
entities to continue to provide these
services may be disrupted, resulting in
potential lapses in the provision of these
services.22
The exemption will be effective until
the compliance date for the final rules
relating to registration of clearing
agencies that clear security-based swaps
pursuant to sections 17A(i) and (j) of the
Exchange Act. This limited duration
will permit the Commission to
implement the statutory provisions
pertaining to the registration of clearing
agencies that clear security-based swaps
without disrupting existing services. It
will also permit the Commission to gain
more information concerning the
number and types of entities that
conduct Exempted Activities, to learn
more about how those activities
contribute to a national system for the
supra note 4 and accompanying text.
that act as central counterparties for
security-based swaps will need to be registered with
the Commission as clearing agencies. However, the
entities that currently perform the vast majority of
central counterparty services with respect to
security-based swaps will be deemed registered
with the Commission pursuant to Exchange Act
section 17A(l). See Public Law 111–203 § 763(b).
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21 See
22 Entities
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39965
clearance and settlement of securitybased swap transactions, and to evaluate
the appropriate regulatory treatment of
those entities. The limited duration of
the exemption will also permit the
entities conducting Exempted Activities
to review their operations, procedures
and processing requirements in the
context of the new requirements
stemming from the Dodd-Frank Act.
III. Solicitation of Comments
The Commission requests comment
on this exemption for clearing agencies
that may be required to register with the
Commission solely as a result of their
conducting the Exempted Activities.
The Commission is soliciting public
comment on all aspects of this
exemption, including whether the
condition to the temporary exemption is
appropriate or alternatively whether the
Commission should consider modifying
this condition in the future. Why or why
not? Should other conditions apply? If
so, what conditions and why?
Comments may be submitted by any
of the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/other.shtml);
• Send an e-mail to rulecomments@sec.gov. Please include File
Number S7–28–11 on the subject line;
or
• Use the Federal eRulemaking Portal
(https://www.regulations.gov/). Follow
the instructions for submitting
comments.
Paper Comments
A. Send paper comments in triplicate
to Secretary, Securities and Exchange
Commission, 100 F Street, NE.,
Washington, DC 20549–1090.
All submissions should refer to File
Number S7–28–11. This file number
should be included on the subject line
if e-mail is used. To help us process and
review your comments more efficiently,
please use only one method. The
Commission will post all comments on
the Commission’s Internet Web site
(https://www.sec.gov/rules/other.shtml).
Comments are also available for public
inspection and copying in the
Commission’s Public Reference Room,
100 F Street, NE., Washington, DC
20549, on official business days
between the hours of 1 a.m. and 3 p.m.
All comments received will be posted
without change; we do not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly.
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IV. Conclusion
It is hereby ordered, pursuant to
section 36(a) of the Exchange Act, that,
until the compliance date for final rules
issued by the Commission pursuant to
sections 17A(i) and (j) of the Exchange
Act relating to registration of clearing
agencies that clear security-based
swaps:
Any person that would otherwise be
required to register with the
Commission as a clearing agency under
section 17A(b)(1) of the Exchange Act
solely as a result of conducting
Exempted Activities with respect to
security based swaps shall be exempt
from section 17A(b)(1) of the Exchange
Act, provided that such person shall
submit, within twenty-one days of
relying on this exemption, a notice to
the Commission 23 that includes the full
legal name of the person, a description
of the person’s corporate structure,
contact person and contact information,
and a detailed description of the
Exempted Activities for security-based
swaps conducted by the person,
including the nature of services
performed, number and nature of parties
to whom services are provided, and the
volume of transactions conducted in
connection with the services performed
for each of the last two years.
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011–17053 Filed 7–6–11; 8:45 am]
BILLING CODE 8011–01–P
DEPARTMENT OF STATE
[Public Notice 7518]
30-Day Notice of Proposed Information
Collections: ECA/P/V Youth and
Leadership Survey Questions
Notice of request for public
comment and submission to OMB of
proposed collection of information.
ACTION:
The Department of State has
submitted the following information
collection requests to the Office of
Management and Budget (OMB) for
approval in accordance with the
Paperwork Reduction Act of 1995.
• Title of Information Collection:
ECA/P/V Youth and Leadership
Programs: Pre Program Survey
Questions.
• OMB Control Number: None.
• Type of Request: New Collection.
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SUMMARY:
23 Any such notice should be sent to: Secretary,
Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549, and be noted as
regarding this ‘‘File No. S7–28–11.’’
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• Originating Office: Bureau of
Educational and Cultural Affairs, Office
of Policy and Evaluation, Evaluation
Division (ECA/P/V).
• Form Number: SV2011–0019.
• Respondents: Participants in ECA
exchange programs that focus on youth
and leadership. Specifically the
programs that bring students to the
United States. For the purposes of this
collection ‘‘youth’’ is defined solely as
high-school aged.
• Estimated Number of Respondents:
1,500 annually.
• Estimated Number of Responses:
1,500 annually.
• Average Hours per Response: 20
minutes.
• Total Estimated Burden: 500 hours
annually.
• Frequency: On Occasion.
• Obligation To Respond: Voluntary.
• Title of Information Collection:
ECA/P/V Youth and Leadership
Programs: Post Program Survey
Questions.
• OMB Control Number: None.
• Type of Request: New Collection.
• Originating Office: Bureau of
Educational and Cultural Affairs, Office
of Policy and Evaluation, Evaluation
Division (ECA/P/V).
• Form Number: SV2011–0020.
• Respondents: Participants in ECA
exchange programs that focus on youth
and leadership. Specifically the
programs that bring students to the
United States. For the purposes of this
collection ‘‘youth’’ is defined solely as
high-school aged.
• Estimated Number of Respondents:
1,500 annually.
• Estimated Number of Responses:
1,500 annually.
• Average Hours per Response: 25
minutes.
• Total Estimated Burden: 625 hours
annually.
• Frequency: On Occasion.
• Obligation To Respond: Voluntary.
• Title of Information Collection:
ECA/P/V Youth and Leadership
Programs: Follow-up Program Survey
Questions.
• OMB Control Number: None.
• Type of Request: New Collection.
• Originating Office: Bureau of
Educational and Cultural Affairs, Office
of Policy and Evaluation, Evaluation
Division (ECA/P/V).
• Form Number: SV2011–0021.
• Respondents: Participants in ECA
exchange programs that focus on youth
and leadership. Specifically the
programs that bring students to the
United States. For the purposes of this
collection ‘‘youth’’ is defined solely as
high-school aged.
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• Estimated Number of Respondents:
1,500 annually.
• Estimated Number of Responses:
1,500 annually.
• Average Hours per Response: 25
minutes.
• Total Estimated Burden: 625 hours
annually.
• Frequency: On Occasion.
• Obligation To Respond: Voluntary.
DATES: Submit comments to the Office
of Management and Budget (OMB) for
up to 30 days from July 7, 2011.
ADDRESSES: Direct comments to the
Department of State Desk Officer in the
Office of Information and Regulatory
Affairs at the Office of Management and
Budget (OMB). You may submit
comments by the following methods:
• E-mail:
oira_submission@omb.eop.gov. You
must include the DS form number,
information collection title, and OMB
control number in the subject line of
your message.
• Fax: 202–395–5806. Attention: Desk
Officer for Department of State.
FOR FURTHER INFORMATION CONTACT: You
may obtain copies of the proposed
information collection and supporting
documents from Michelle Hale, ECA/P/
V, SA–5, C2 Floor, Department of State,
Washington, DC 20522–0582, who may
be reached on 202–632–6312 or at
HaleMJ2@state.gov.
We are
soliciting public comments to permit
the Department to:
• Evaluate whether the proposed
information collection is necessary to
properly perform our functions.
• Evaluate the accuracy of our
estimate of the burden of the proposed
collection, including the validity of the
methodology and assumptions used.
• Enhance the quality, utility, and
clarity of the information to be
collected.
• Minimize the reporting burden on
those who are to respond,
SUPPLEMENTARY INFORMATION:
Abstract of Proposed Collections
These information collections will
allow ECA/P/V to conduct pre-program,
post-program and follow-up surveys of
exchange participants from various ECA
exchange programs that are focused on
youth and leadership using preapproved questions. For the purposes of
this collection ‘‘youth’’ is defined solely
as high-school aged. Collecting this data
will allow ECA/P/V to help inform the
overall effectiveness of ECA youth and
leadership programs, by gathering data
to be used for program support, such as
planning and design, as well as to help
monitor the program’s performance.
Respondents are the exchange
E:\FR\FM\07JYN1.SGM
07JYN1
Agencies
[Federal Register Volume 76, Number 130 (Thursday, July 7, 2011)]
[Notices]
[Pages 39963-39966]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17053]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-64796; File No. S7-28-11]
Order Pursuant to Section 36 of the Securities Exchange Act of
1934 Granting Temporary Exemptions From Clearing Agency Registration
Requirements Under Section 17A(b) of the Exchange Act for Entities
Providing Certain Clearing Services for Security-Based Swaps
July 1, 2011.
I. Introduction
Title VII of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 (``Dodd-Frank Act''),\1\ amends the Securities
Exchange Act of 1934 (``Exchange Act'') to provide for the
comprehensive regulation of security-based swaps \2\ by the Securities
and Exchange Commission (``Commission'').\3\ Among other things, Title
VII seeks to ensure that, wherever possible and appropriate,
derivatives contracts formerly traded exclusively in the over-the-
counter (``OTC'') market are centrally cleared.\4\ One of the key ways
in which the Dodd-Frank Act seeks to mitigate risk in the security-
based swap market is by requiring that entities that clear and settle
security-based swaps be registered with the Commission. Specifically,
section 763(b) of the Dodd-Frank Act adds a new section 17A(g) to the
Exchange Act, which directs entities that use instrumentalities of
interstate commerce to perform clearing agency functions for security-
based swaps to register with the Commission.\5\
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\1\ Public Law 111-203.
\2\ Section 761(a)(6) of the Dodd-Frank Act defines a
``security-based swap'' as any agreement, contract, or transaction
that is a ``swap,'' as defined in section 1a(47) of the Commodity
Exchange Act, 7 U.S.C. 1a(47), that is based on an index that is a
narrow-based security index, a single security, or a loan, including
any interest therein or on the value thereof; or the occurrence,
nonoccurrence, or extent of the occurrence of an event relating to a
single issuer of a security or the issuers of securities in a
narrow-based security index, provided that such event directly
affects the financial statements, financial condition, or financial
obligations of the issuer. See section 3(a)(68) of the Securities
Exchange Act of 1934 (``Exchange Act''), 15 U.S.C. 78c(a)(68) (as
added by section 761(a)(6) of the Dodd-Frank Act). Section 712(d) of
the Dodd-Frank Act provides that the Commission and the Commodity
Futures Trading Commission (``CFTC''), in consultation with the
Board of Governors of the Federal Reserve System, shall, among other
things, jointly further define the terms ``swap'' and ``security-
based swap.'' See SEC Release No. 9204 (April 29, 2011), 76 FR 32880
(June 7, 2011) (proposing product definitions contained in Title VII
of the Dodd-Frank Act).
\3\ Section 761(a)(2) of the Dodd-Frank Act includes security-
based swaps in the definition of ``security'' in section 3(a)(10) of
the Exchange Act, 15 U.S.C. 78c. See also section 768(a)(1) of the
Dodd-Frank Act (amending section 2(a)(1) of the Securities Act of
1933, 15 U.S.C. 77b(a)(1), to include security-based swaps in the
definition of ``security'').
\4\ See, e.g., Report of the Senate Committee on Banking,
Housing, and Urban Affairs regarding The Restoring American
Financial Stability Act of 2010, S. Rep. No. 111-176 at 34 (stating
that ``[s]ome parts of the OTC market may not be suitable for
clearing and exchange trading due to individual business needs of
certain users. Those users should retain the ability to engage in
customized, uncleared contracts while bringing in as much of the OTC
market under the centrally cleared and exchange-traded framework as
possible.'').
\5\ Public Law 111-203 Sec. 763(b).
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Section 763(b) of the Dodd-Frank Act also directs the Commission,
by adding new sections 17A(i) and (j) of the Exchange Act, to adopt
rules for the implementation of the registration requirement in new
section 17A(g). The Title VII amendments for which rules are not
required generally are effective on July 16, 2011 (360 days after
enactment of the Dodd-Frank Act, referred to herein as the ``Effective
Date''). Provisions that require rules for implementation become
effective not less than 60 days after publication of the related final
rule or on July 16, 2011, whichever is later.\6\
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\6\ See section 774 of the Dodd-Frank Act, 15 U.S.C. 77b note.
See also Exchange Act Release No. 64678 (June 15, 2011), granting
temporary exemptions and other temporary relief, together with
information on compliance dates for new provisions of the Exchange
Act applicable to security-based swaps.
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Section 17A(j) of the Exchange Act requires the Commission to adopt
rules governing persons that are registered as clearing agencies for
security-based swaps under the Exchange Act.\7\ Section 17A(i) of the
Exchange Act provides that, to be registered and to maintain
registration as a clearing agency that clears security-based swap
transactions, a clearing agency must comply with such standards as the
Commission may establish by rule.\8\ Consistent with these provisions,
as well as provisions in Title VIII of the Dodd-Frank Act,\9\ the
Commission on March 3, 2011 proposed rules regarding registration of
clearing agencies and the operation and governance of clearing
agencies, including clearing agencies that clear security-based
swaps.\10\ Pursuant to section 774 of the Dodd-Frank Act, discussed
above, compliance with section 17A(g) of the Exchange Act will not be
required as of the Effective Date because sections 17A(i) and (j)
require rulemaking to implement the registration requirement pursuant
to section 17A(g) of clearing agencies that clear security-based swap
transactions.\11\ Instead compliance with section 17A(g) of the
Exchange Act will be required not less than 60 days after the
publication of final rules relating to registration of clearing
agencies that clear security-based swaps pursuant to sections 17A(i)
and (j) of the Exchange Act.
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\7\ Public Law 111-203 Sec. 763(b).
\8\ Id.
\9\ Title VIII of the Dodd-Frank Act, entitled the Payment,
Clearing, and Settlement Supervision Act of 2010 (``Clearing
Supervision Act''), establishes an enhanced supervisory and risk
control system for systemically important clearing agencies and
other financial market utilities (``FMUs''). It provides that the
Commission may prescribe regulations containing risk management
standards, taking into consideration relevant international
standards and existing prudential requirements, for any designated
clearing entities it regulates. See section 805(a)(2) of the
Clearing Supervision Act. Those regulations may govern: ``(A) the
operations related to payment, clearing, and settlement activities
of such designated clearing entities; and (B) the conduct of
designated activities by such financial institutions.'' 12 U.S.C.
5464(a)(2).
\10\ Securities Exchange Act Release No. 64017 (March 3, 2011),
76 FR 14472 (March 16, 2011) (File No. S7-08-11) (the ``Clearing
Agency Proposing Release'').
\11\ Securities Exchange Act Release No. 64678 (June 15, 2011)
76 FR 36287 (June 22, 2011) (File No. S7-24-11) (Temporary
Exemptions and Other Temporary Relief, Together With Information on
Compliance Dates for New Provisions of the Securities Exchange Act
of 1934 Applicable to Security-Based Swaps).
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In contrast to section 17A(g) of the Exchange Act, the registration
requirement of section 17A(b) of the Exchange Act, which applies to all
clearing agencies, will apply to security-based swap clearing agencies
when the provision of the Dodd-Frank Act that amends the definition of
``security'' under the Exchange Act to include security-based swaps
becomes effective, i.e., on the Effective Date.\12\
[[Page 39964]]
Accordingly, absent relief by the Commission, any entity that functions
as a clearing agency for security-based swaps would be required to
register with the Commission pursuant to section 17A(b)(1) of the
Exchange Act as of the Effective Date.\13\
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\12\ See section 761(a)(2) of the Dodd-Frank Act (amending
section 3(a)(10) of the Exchange Act, 15 U.S.C. 78c(a)(10)).
\13\ Section 17A(b)(1) provides (with limited exceptions) that
it shall be unlawful for any clearing agency, unless registered in
accordance with this subsection, directly or indirectly, to make use
of the mails or any means or instrumentality of interstate commerce
to perform the functions of a clearing agency with respect to any
security. 15 U.S.C. 78q-1(b)(1). Upon the effective date of section
761(a)(2), security-based swaps will be included in the definition
of a security in section 3(a)(10). See supra note 3.
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The Commission notes that the term ``clearing agency'' under
section 3(a)(23)(A) of Exchange Act is defined broadly to include any
person who:
Acts as an intermediary in making payments or deliveries
or both in connection with transactions in securities;
Provides facilities for the comparison of data regarding
the terms of settlement of securities transactions, to reduce the
number of settlements of securities transactions, or for the allocation
of securities settlement responsibilities;
Acts as a custodian of securities in connection with a
system for the central handling of securities whereby all securities of
a particular class or series of any issuer deposited within the system
are treated as fungible and may be transferred, loaned, or pledged by
bookkeeping entry, without physical delivery of securities certificates
(such as a securities depository); or
Otherwise permits or facilitates the settlement of
securities transactions or the hypothecation or lending of securities
without physical delivery of securities certificates (such as a
securities depository).\14\
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\14\ 15 U.S.C. 78c(a)(23)(A).
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Based on this broad definition, the Commission indicated in the
``Clearing Agency Proposing Release'' that it preliminarily believes
that certain service providers that facilitate security-based swap
contract management may meet the clearing agency definition.\15\ The
Clearing Agency Proposing Release has only recently been issued and the
Commission is still considering these services in the context of the
Clearing Agency Proposing Release and the comments received on the
proposing release. Specifically, the Commission indicated it
preliminarily believes that Collateral Management Services, Trade
Matching Services, and Tear Up and Compression Services (as defined
below), if engaged in by security-based swap market participants, would
qualify these participants as clearing agencies and therefore trigger
the statutory requirement to register as clearing agencies: \16\
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\15\ See Securities Exchange Act Release No. 64017, supra note
9.
\16\ The Commission stresses that the functions highlighted
herein and in the Clearing Agency Proposing Release are not an
exhaustive list and urges each security-based swap service provider
to consider whether its functions place it within the clearing
agency definition.
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``Collateral Management Services'': Collateral management
generally involves calculating collateral requirements and facilitating
the transfer of collateral between counterparties. In the Clearing
Agency Proposing Release, the Commission stated that entities that
calculate net payment obligations among counterparties for security-
based swaps and provide instructions for payments, including with
respect to quarterly interest, credit events, and upfront fees, are
likely acting as intermediaries in making payments or deliveries or
both in connection with transactions in securities.
``Trade Matching Services'': Trade matching generally is
the process whereby an intermediary compares each market participant's
trade data regarding the terms of settlement of securities
transactions, in order to reduce the number of settlements of
securities transactions, or to allocate securities settlement
responsibilities. This includes activities of an intermediary that
captures trade information regarding a securities transaction and
performs an independent comparison of that information that results in
the issuance of binding matched terms to the transaction.\17\
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\17\ See also Exchange Act Release No. 39829 (April 6, 1998), 63
FR 17943 (April 13, 1998) (File No. S7-10-98) (``A vendor that
provides a matching service will actively compare trade and
allocation information and will issue the affirmed confirmation that
will be used in settling the transaction.'').
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``Tear Up and Compression Services'': \18\ Based on
discussions between the Commission staff and market participants, the
Commission understands that tear up and compression service providers
generally operate in the following manner:
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\18\ Tear-up or multilateral portfolio trade compression
services for OTC derivatives seek to eliminate unnecessary or
duplicative trades from the market while maintaining a market
participant's overall exposure or risk in the market. This allows
dealers to reduce operational risk, freeing up liquidity and
capital. By reducing the gross notional outstanding of OTC
derivatives in normal times, portfolio trade compression provides
effective measures to address the risk to individual dealers
associated with uncoordinated, disorderly close-out transactions of
the positions of a defaulting major dealer. Compression is offered
by several vendors, and major market participants are now engaged in
regular compression exercises. See Financial Stability Board,
Implementing OTC Derivatives Market Reforms, (October 25, 2010),
available at https://www.Financialstabilityboard.org/publications/r_101025.pdf.
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The providers execute an algorithm seeking to reduce the
gross notional value of trades and the total number of trades but do
not alter the counterparty risk or market risk associated with the
trades beyond specified parameters.
When using a tear up and compression service, the users
send all transactions they are willing to terminate to the service.
Each user sets tolerances for counterparty exposures it is willing to
absorb and how much money it is willing to pay in trade termination
costs. The submitted transactions are matched using an algorithm and
tolerances specified by the user.
The service then proposes terminations across all parties
who participated, including payments for termination. The users
consider the proposal, check their own records, and, if they choose to
accept the proposal, fax or otherwise notify their acceptance to the
service. If the service receives acceptances from all users, the
transaction is considered binding, and the relevant transactions are
considered terminated.
The users generally exchange payments and confirmations
outside the service. The tear up and compression service provider sends
the completed files to a third party service provider for matching, and
the ``torn up'' transactions are terminated in bulk at the security-
based swap data repository, which maintains a record of which parties
terminated the ``torn up'' trades.
The Commission is using its authority under section 36 of the
Exchange Act \19\ to provide a conditional temporary exemption, until
the compliance date for the final rules relating to registration of
clearing agencies that clear security-based swaps pursuant to sections
17A(i) and (j) of the Exchange Act, from the registration requirement
in section 17A(b)(1) of the Exchange Act to any clearing agency that
may be required to register with the Commission solely as a result of
providing Collateral Management Services, Trade Matching Services, Tear
Up and Compression Services, and/or substantially similar services for
security based swaps (the ``Exempted Activities''). As discussed below,
the Commission believes that such action is necessary and appropriate
in the public interest and consistent with the protection of investors
because this conditional temporary exemption would avoid the potential
for disruption
[[Page 39965]]
of these important services to investors pending the implementation of
the registration framework and related standards and operational
requirements contemplated under sections 17A(g), (i), and (j) of the
Exchange Act, and pending further consideration of the appropriate
regulatory treatment of persons conducting Exempted Activities. The
Commission also believes that the temporary conditional exemption is
necessary and appropriate because it will provide legal certainty to
the security-based swap market and security-based swap market
participants.
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\19\ 15 U.S.C. 78mm.
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II. Discussion
Our action today provides a temporary exemption, until the
compliance date for the final rules relating to registration of
clearing agencies that clear security-based swaps pursuant to sections
17A(i) and (j) of the Exchange Act, from section 17A(b)(1) of the
Exchange Act to persons conducting Exempted Activities. This temporary
exemption is subject to a condition that is designed to provide greater
information regarding persons that are using this exemption to conduct
Exempted Activities and the nature of these activities.\20\
Specifically, entities relying on the temporary exemption must provide
notice to the Commission with identifying information consisting of the
full legal name of the person, a description of the person's corporate
structure, contact person and contact information. Such indentifying
information is needed to provide the Commission with information
regarding who is seeking to use the exemption and how to contact such
persons. In addition, they must provide the Commission with a detailed
description of the Exempted Activities they conduct, including the
nature of services performed, number and nature of parties to whom
services are provided, and the volume of transactions conducted in
connection with the services performed for each of the last two years.
The Commission is requiring this information in order to better
understand the types of services that are being provided pursuant to
this exemption and the role such services play in the security-based
swap market. The notice must be provided to the Commission within
twenty-one days of relying on this exemption. The Commission believes
twenty-one days should provide sufficient time for an entity to prepare
the information required in the notice, including a detailed
description of the Exempted Activities it provides.
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\20\ The Paperwork Reduction Act of 1993 (``PRA''), 44 U.S.C.
3501 et seq., defines a ``collection of information'' as ``the
obtaining, causing to be obtained, soliciting or requiring the
disclosure to third parties or the public, of facts or opinions by
or for an agency, regardless of form or format, calling for * * *
answers to identical questions posed to, or identical reporting or
recordkeeping requirements imposed on, ten or more persons * * *.''
44 U.S.C. 3502(3)(A). The Commission preliminarily does not believe
that the reporting and recordkeeping provisions in this Order
contain ``collection of information requirements'' within the
meaning of the PRA because fewer than ten persons are expected to
rely on the exemption based on our discussions with industry
participants regarding entities engaged in Exempted Activities.
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In light of the condition to this exemptive order and the temporary
duration of the relief, the Commission believes this exemption should
help to facilitate the aim of the Dodd-Frank Act to ensure that
clearing functions are appropriately utilized to reduce risk in the OTC
market for derivatives.\21\ Entities that conduct Exempted Activities
can play an important role in facilitating risk reduction in the
security-based swap market, including by helping to reduce the
outstanding number of trades and providing useful operational functions
for clearing security-based swaps. Persons conducting Exempted
Activities, to the extent they are required to register under section
17A(g), will need time to consider and come into compliance with
requirements yet to be adopted by the Commission pertaining to clearing
agencies that clear security-based swaps. As a result, absent the
exemption granted by this order, the ability of such entities to
continue to provide these services may be disrupted, resulting in
potential lapses in the provision of these services.\22\
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\21\ See supra note 4 and accompanying text.
\22\ Entities that act as central counterparties for security-
based swaps will need to be registered with the Commission as
clearing agencies. However, the entities that currently perform the
vast majority of central counterparty services with respect to
security-based swaps will be deemed registered with the Commission
pursuant to Exchange Act section 17A(l). See Public Law 111-203
Sec. 763(b).
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The exemption will be effective until the compliance date for the
final rules relating to registration of clearing agencies that clear
security-based swaps pursuant to sections 17A(i) and (j) of the
Exchange Act. This limited duration will permit the Commission to
implement the statutory provisions pertaining to the registration of
clearing agencies that clear security-based swaps without disrupting
existing services. It will also permit the Commission to gain more
information concerning the number and types of entities that conduct
Exempted Activities, to learn more about how those activities
contribute to a national system for the clearance and settlement of
security-based swap transactions, and to evaluate the appropriate
regulatory treatment of those entities. The limited duration of the
exemption will also permit the entities conducting Exempted Activities
to review their operations, procedures and processing requirements in
the context of the new requirements stemming from the Dodd-Frank Act.
III. Solicitation of Comments
The Commission requests comment on this exemption for clearing
agencies that may be required to register with the Commission solely as
a result of their conducting the Exempted Activities. The Commission is
soliciting public comment on all aspects of this exemption, including
whether the condition to the temporary exemption is appropriate or
alternatively whether the Commission should consider modifying this
condition in the future. Why or why not? Should other conditions apply?
If so, what conditions and why?
Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://www.sec.gov/rules/other.shtml);
Send an e-mail to rule-comments@sec.gov. Please include
File Number S7-28-11 on the subject line; or
Use the Federal eRulemaking Portal (https://www.regulations.gov/). Follow the instructions for submitting comments.
Paper Comments
A. Send paper comments in triplicate to Secretary, Securities and
Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number S7-28-11. This file number
should be included on the subject line if e-mail is used. To help us
process and review your comments more efficiently, please use only one
method. The Commission will post all comments on the Commission's
Internet Web site (https://www.sec.gov/rules/other.shtml). Comments are
also available for public inspection and copying in the Commission's
Public Reference Room, 100 F Street, NE., Washington, DC 20549, on
official business days between the hours of 1 a.m. and 3 p.m. All
comments received will be posted without change; we do not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly.
[[Page 39966]]
IV. Conclusion
It is hereby ordered, pursuant to section 36(a) of the Exchange
Act, that, until the compliance date for final rules issued by the
Commission pursuant to sections 17A(i) and (j) of the Exchange Act
relating to registration of clearing agencies that clear security-based
swaps:
Any person that would otherwise be required to register with the
Commission as a clearing agency under section 17A(b)(1) of the Exchange
Act solely as a result of conducting Exempted Activities with respect
to security based swaps shall be exempt from section 17A(b)(1) of the
Exchange Act, provided that such person shall submit, within twenty-one
days of relying on this exemption, a notice to the Commission \23\ that
includes the full legal name of the person, a description of the
person's corporate structure, contact person and contact information,
and a detailed description of the Exempted Activities for security-
based swaps conducted by the person, including the nature of services
performed, number and nature of parties to whom services are provided,
and the volume of transactions conducted in connection with the
services performed for each of the last two years.
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\23\ Any such notice should be sent to: Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549,
and be noted as regarding this ``File No. S7-28-11.''
By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-17053 Filed 7-6-11; 8:45 am]
BILLING CODE 8011-01-P