[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Notices]
[Pages 36608-36611]
[FR Doc No: 2013-14393]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69740; File No. SR-FICC-2013-04]

Self-Regulatory Organizations; Fixed Income Clearing Corporation;
Order Approving Proposed Rule Change to the Government Securities
Division Rules and the Mortgage-Backed Securities Division Clearing
Rules in Connection With the Implementation of the Foreign Account Tax
Compliance Act (FATCA)

June 12, 2013.
    On April 22, 2013, the Fixed Income Clearing Corporation (``FICC'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change SR-FICC-2013-04 pursuant to Section 19(b)(1) of
the Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4
thereunder.\2\ The proposed rule change was published for comment in
the Federal Register on May 8, 2013.\3\ The Commission did not receive
comments on the proposed rule change. This order approves the proposed
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 69495 (May 2, 2013), 78
FR 26832 (May 8, 2013) (SR-FICC-2013-04).
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I. Description

    FICC is amending various FICC rules in its Government Securities
Division (``GSD'') Rulebook and its Mortgage-Backed Securities Division
(``MBSD'') Clearing Rules ``in connection with implementation of
sections 1471 through 1474 of the Internal Revenue Code of 1986, as
amended, that were enacted as part of the Foreign Account Tax
Compliance Act, and the Treasury Regulations or other official
interpretations thereunder (collectively ``FATCA'').'' \4\ In its
filing with the Commission, FICC provided information concerning FATCA
background, implementation, and FICC's proposed rule changes.
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    \4\ Id. at 26832.
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FICC's Background Statement

    FATCA was enacted on March 18, 2010, as part of the Hiring
Incentives to Restore Employment Act, and became effective, subject to
transition rules, on January 1, 2013. The U.S. Treasury Department
finalized and issued various implementing regulations (``FATCA
Regulations'') on January 17, 2013. FATCA generally requires foreign
financial institutions (``FFIs'') \5\ to become ``participating FFIs''
by entering into agreements with the Internal Revenue Service
(``IRS''). Under these agreements, FFIs are required to report to the
IRS information on U.S. persons and entities that have (directly or
indirectly) accounts with these FFIs. If an FFI does not enter into
such an agreement with the IRS, FATCA will impose a 30% withholding tax
on U.S.-source interest, dividends and other periodic amounts paid to
such ``nonparticipating FFI'' (``Income Withholding''), as well as on
the payment of gross proceeds arising from the sale, maturity, or
redemption of securities or any instrument yielding U.S.-source
interest and dividends (``Gross Proceeds Withholding,'' and, together
with Income Withholding, ``FATCA Withholding''). The 30% FATCA
Withholding taxes will apply to payments made to a nonparticipating FFI
acting in any capacity, including payments made to a nonparticipating
FFI that is not the beneficial owner of the amount paid and acting only
as a custodian or other intermediary with respect to such payment. To
the extent that U.S.-source interest, dividend, and other periodic
amount or gross proceeds payments are due to a nonparticipating FFI in
any capacity, a U.S. payor, such as FICC, transmitting such payments to
the nonparticipating FFI will be liable to the IRS for any amounts of
FATCA Withholding that the U.S. payor should, but does not, withhold
and remit to the IRS.
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    \5\ According to FICC, non-U.S. financial institutions are
referred to as ``foreign financial institutions'' or ``FFIs'' in the
FATCA Regulations.
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    According to FICC, under FATCA, a U.S. payor, such as FICC, could
be required to deduct Income Withholding with regard to a participating
FFI if either: (x) The participating FFI makes a statutory election to
shift its withholding responsibility under FATCA to the U.S. payor; or
(y) the U.S. payor is required to ignore the actual recipient and treat
the payment as if made instead to certain owners, principals,
customers, account holders or financial counterparties of the
participating FFI. FICC believes it is not in a position to accept this
burden shift and is implementing preventive measures to protect itself
against such a burden through the rule changes contained herein.
    According to FICC, as an alternative to FFIs entering into
individual agreements with the IRS, the U.S. Treasury Department
provided another means of complying with FATCA for FFIs which are
resident in non-U.S. jurisdictions that enter into intergovernmental
agreements (``IGA'') with the United States.\6\ Generally, such a
jurisdiction (``FATCA Partner'') would pass laws to eliminate the
conflicts of law issues that would otherwise make it difficult for FFIs
in its jurisdiction to collect the information required under FATCA and
transfer this information, directly or indirectly, to the United
States. An FFI resident in a FATCA Partner jurisdiction would either
transmit FATCA reporting to its local competent tax authority, which in
turn would transmit the information to the IRS, or the FFI would be
authorized/required by FATCA Partner law to enter into an FFI agreement
and transmit FATCA reporting directly to the IRS. Under both IGA
models, payments to such FFIs would not be subject to FATCA Withholding
so long as the FFI complies with the FATCA Partner's laws mandated in
the IGA.
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    \6\ FICC states that as of the date of this proposed rule change
filing, the United Kingdom, Mexico, Ireland, Switzerland, Spain,
Norway Denmark, Italy and Germany have signed or initialed an IGA
with the United States. The U.S. Treasury Department has announced
that it is engaged in negotiations with more than 50 countries and
jurisdictions regarding entering into an IGA.
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    According to FICC, under the FATCA Regulations, (A) beginning
January 1, 2014, FICC will be required to do Income Withholding on any
payments made to any nonparticipating FFI approved for membership by
FICC as of such date or thereafter, (B) beginning July 1, 2014, FICC
will be required to do Income Withholding on any payments made to any
nonparticipating FFI approved for membership by FICC prior to January
1, 2014 and (C) beginning January 1, 2017, FICC will be required to do
Gross Proceeds Withholding on all nonparticipating FFIs, regardless
when any such FFI's membership was approved.

FICC's Statement on FATCA Implementation

    According to FICC, in preparation for FATCA's implementation, FFIs
are being asked to identify their expected FATCA status as a condition
of continuing to do business. Customary legal agreements in the
financial services industry already contain provisions allocating the
risk of any FATCA Withholding tax that will need to be collected, and
requiring that, upon FATCA's effectiveness, foreign counterparties must
certify (and periodically recertify) their FATCA status using the
relevant tax forms that the IRS has announced it will provide.\7\

Advance disclosure by an FFI client or counterparty would permit a
withholding agent to readily determine whether it must, under FATCA,
withhold on payments it makes to the FFI. If an FFI fails to provide
appropriate compliance documentation to a withholding agent, such FFI
would be presumed to be a nonparticipating FFI and the withholding
agent will be obligated to withhold on certain payments.
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    \7\ For example, credit agreements now routinely require foreign
lenders to agree to provide certifications of their FATCA status
under approved IRS forms to U.S. borrowers, and subscription
agreements for alternative investment funds that are anticipated to
earn U.S.-source income are routinely requiring similar covenants.
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    FICC states that FATCA will require FICC to deduct FATCA
Withholding on payments to certain members arising from certain
transactions processed by FICC on behalf of such members.\8\ Because
FATCA treats any entity holding financial assets for the account of
others as a ``financial institution,'' FICC believes that almost all of
its members which are treated as non-U.S. entities for federal income
tax purposes, including those members that are U.S. branches of non-
U.S. entities, will likely be FFIs under FATCA (collectively, ``FFI
Members'').\9\ FICC says that as a result, it will be liable to the IRS
for any failures to withhold correctly under FATCA on payments made to
its FFI Members.
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    \8\ According to FICC, FFI Members resident in IGA countries,
that are compliant with the terms of applicable IGAs, should not be
subject to FATCA Withholding.
    \9\ Currently, only a small percentage of the FICC's members are
treated as non-U.S. entities for federal income tax purposes.
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    In light of this, FICC has evaluated its existing systems and
services to determine whether and how it may comply with its FATCA
obligations. As a result of this evaluation, FICC has determined that
its existing systems currently cannot process the new FATCA Withholding
obligations with regard to the securities transactions processed by it,
as no similar withholding obligation of this magnitude has ever been
imposed upon it to date, and FICC has therefore not built its systems
to support such an obligation.
    Further, FICC states that the vast majority of the transactions
that are processed at FICC are processed through its netting and
settlement systems at its GSD and MBSD divisions (the ``Systems''). At
GSD, the netting and settlement system service provides centralized,
automated clearance and guaranteed settlement of eligible U.S. Treasury
bills, notes, bonds, strips and book-entry non-mortgage-backed agency
securities. Through netting, the GSD establishes a single net long or
short position for each participant's daily trading activity in a given
security. The participant's net position is the difference between all
long and all short positions in a given security.
    At MBSD, the mortgage-backed securities trades entering the MBSD
clearing and settlement systems are settled using either the Settlement
Balance Order system (SBO) or the Trade-for-Trade system (TFTD). The
SBO settlement system is MBSD's trade netting system, which nets by
automatically pairing off settlement obligations with like terms, such
as MBS product, coupon rate, maturity and settlement date, on a
multilateral basis, i.e., regardless of contra party identity,
resulting in the fewest possible number of receive/deliver obligations.
Through the Trade-for-Trade settlement system, members are given the
opportunity to settle individual trades on a gross basis, as originally
executed, following matching and comparison of each trade. Further
netting is accomplished through MBSD's CCP Pool Netting service (``Pool
Netting''). Members submit pool details (``Pool Instructs'') into the
Pool Netting system for bilateral matching versus their counterparties'
submissions. As many of the matched Pool Instructs as possible are then
netted by the Pool Netting system. For pools that meet all the
criteria, FICC steps in as the central counter-party to settle the net
pool obligations with its members.
    FICC believes that each division's net settlement functionality
could make FATCA Withholding virtually impossible, or, at the very
least, would create onerous efficiency and liquidity issues for both
FICC and its membership. FICC believes that undertaking FATCA
Withholding, given FICC's settlement functionality, could require FICC
in certain circumstances to resort to a draw on FICC's clearing fund
for GSD or MBSD, as applicable (``Clearing Fund'') in order to fund
FATCA Withholding taxes with regard to nonparticipating FFI Members in
non-FATCA Partner jurisdictions whenever the net credit owed to such
FFI Member is less than the 30% FATCA tax. For example, if a
nonparticipating FFI (in a non-FATCA Partner jurisdiction) is owed a
$100M payment from the sale of U.S. securities, but such
nonparticipating FFI is in a net debit position at the end of that day
because of FICC's net settlement functionality, there would be no
payment to this FFI Member from which FICC can withhold. In this
example, FICC would likely need to fund the $30M FATCA Withholding tax
until such time as the FFI Member can reimburse FICC and, as FICC has
no funds for this purpose, it would likely require a draw on the
Clearing Fund.\10\ FICC would need to consider an increase in the
amount of cash required to be deposited into the Clearing Fund, either
by FFI Members or perhaps all of its members, which would reduce such
member's liquidity and could have significant systemic effects. The
amount of the FATCA Withholding taxes would be removed from market
liquidity, which could lead to increased risk of member failure and
increased financial instability.
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    \10\ FICC notes that the FATCA Regulations provide that
``clearing organizations'', which settle money on a net basis, may
withhold on a similar net basis for FATCA purposes. However, it is
unclear whether certain amounts being netted at FICC would qualify
for the special FATCA netting rule. Even if the end of day net
settlement amount would qualify as the correct amount to do FATCA
Withholding on, the liquidity risks described herein are still
present. This is because the sheer volume of FICC's net daily
payments among FICC and members means that withholding FATCA tax
from such net settlement payments, in any material proportion, would
likely reduce liquidity and thus increase financial instability.
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    For the reasons explained above and the following additional
reasons, FICC is amending its rules to implement preventive measures
that would generally require all of FICC's (i) existing members that
are treated as non-U.S. entities for federal income tax purposes and
(ii) any applicants applying to become members that are treated as non-
U.S. entities for federal income tax purposes to be participating FFIs
because FICC believes that:
     Undertaking FATCA Withholding by FICC (even if possible)
would make it economically unfeasible for affected FFI Members to
engage in transactions involving U.S. securities. It would likely also
quickly cause a significant negative impact on such FFI Members'
liquidity because such withholding taxes would be imposed on the very
large sums that FICC pays to such FFI Members. Furthermore, members
would be burdened with extra costs and the negative impact on liquidity
caused by the likely need to substantially increase the amount of cash
required to be deposited into the Clearing Fund.
     The cost of implementing a FATCA Withholding system for a
small number of nonparticipating FFI Members would be substantial and
disproportionate to the related benefit. Under the Model I IGA form and
its executed versions with various FATCA Partners, FICC would not be
required to withhold with regard to FFI residents in such FATCA Partner
jurisdictions. Accordingly, FICC's withholding obligations under FATCA
would effectively be limited to nonparticipating FFI Members in non-
FATCA Partner jurisdictions. Since the

cost of developing and maintaining a complex FATCA Withholding system
would be passed on to FICC's members at large, it may burden members
that otherwise comply with, or are not subject to, FATCA Withholding.
     As briefly noted above, absent this current action and in
order to avoid counterparty credit risk, FICC would likely require each
of the nonparticipating FFI Members in non-FATCA Partner jurisdictions
to make initial or additional cash deposits to the Clearing Fund as
collateral for the approximate potential FATCA tax liability of such
nonparticipating FFI Member or otherwise adjust required deposits to
the Clearing Fund. The amount of such deposits, which could amount to
billions of dollars, would be removed from market liquidity.
     From the nonparticipating FFI Member's perspective, having
30% of its payments withheld and sent to the IRS would have a severe
negative impact on such nonparticipating FFI Member's financial status.
In many cases, the gross receipts would be for client accounts, and the
nonparticipating FFI Member would need to make such accounts whole.
Without receipt of full payment for its dispositions, the
nonparticipating FFI Member would not have sufficient assets to fund
its client accounts.
     These rule changes should not create business issues or be
onerous to FICC's membership because requiring FFIs to certify (and to
periodically recertify) their FATCA status, and imposing the costs of
non-compliance on them, are becoming standard market practice in the
United States, separate and apart from membership in FICC.

Rule Changes

    FICC states that managing the risks inherent in executing
securities transactions is a key component of FICC's business. FICC's
``risk tolerances'' (i.e., the levels of risk FICC is prepared to
confront, under a range of possible scenarios, in carrying out its
business functions) are determined by the Board of Directors, in
consultation with the Group Chief Risk Officer. FICC uses a combination
of risk management tools, including strict criteria for membership, to
mitigate the risks inherent in its business.
    In line with its risk management focus, FICC has determined that
compliance with FATCA, so that FICC shall not be responsible for FATCA
Withholding, should be a general membership requirement (A) for all
applicants seeking membership at GSD or MBSD, as applicable, that are
treated as non-U.S. entities for federal income tax purposes, and (B)
for all existing FFI Members.\11\ FICC is amending its rules as
follows:
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    \11\ FICC may grant a waiver under certain circumstances,
provided, however, that FICC will not grant a waiver if it causes
FICC to be obligated to withhold under FATCA on gross proceeds from
the sale or other disposition of any property.
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     Amend GSD Rule 1 and MBSD Rule 1 to add ``FATCA'', ``FATCA
Certification'', ``FATCA Compliance Date'' \12\, ``FATCA Compliant''
and ``FFI Member'', as defined terms;
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    \12\ Although Income Withholding with regard to FFI Members
approved for membership by FICC prior to January 1, 2014 is first
required under FATCA beginning July1, 2014, the proposed amendments
to the GSD rules and MBSD rules would require such existing FFI
Members to be FATCA compliant approximately 60 days prior to July 1,
2014 in order for FICC to comply with its disciplinary and notice
processes as set forth in FICC.
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     Amend GSD Rule 2A, Section 2(a)(v) and MBSD Rule 2A,
Section 1 to (1) require foreign members to certify to FICC that they
are FATCA Compliant and (2) add FATCA Compliance as a qualification
requirement for any applicant that will be an FFI Member;
     Amend GSD Rule 2A Section 5 and MBSD Rule 2A Section 3 to
add that each applicant must complete and deliver a FATCA Certification
to FICC as part of its membership application unless FICC has waived
this requirement with regard to membership type;
     Amend GSD Rule 2A Section 6 and MBSD Rule 2A Section 4 to
add FATCA Compliance as a qualification requirement for any applicant
that will be an FFI Member;
     Amend GSD Rule 3, Section 7 and MBSD Rule 3, Section 6 to
specify that failure to be FATCA Compliant creates a duty upon an FFI
Member (both new and existing) to inform FICC;
     Amend GSD Rule 3, Section 9 and MBSD Rule 3, Section 8 to
require that all FFI Members (both new and existing), in general: (i)
Agree not to conduct any transaction or activity through FICC if such
FFI Member is not FATCA Compliant, (ii) certify and, as required under
the timelines set forth under FATCA, periodically recertify, to FICC
that they are FATCA Compliant; and (iii) indemnify FICC for any losses
sustained by FICC resulting from such FFI Member's failure to be FATCA
Compliant.
     FICC believes the proposed rule changes are consistent
with the requirements of the Act. In particular, the proposed rule
changes are consistent with Section 17A(b)(3)(F) of the Act \13\
because they promote the prompt and accurate clearing and settlement of
securities transactions by eliminating an uncertainty in payment
settlement that would arise if FICC were subject to FATCA Withholding
obligations under FATCA. The proposed rule changes are also consistent
with Section 17A(b)(3)(D) of the Act \14\ because they provide for the
equitable allocation of reasonable dues, fees, and other charges among
FICC's members. Specifically, the proposed rule changes allow FICC to
comply with FATCA Regulations without developing and maintaining a
complex FATCA Withholding system, the cost of which, as discussed
above, would be would be passed on to FICC's members at large for the
benefit of a small number of nonparticipating FFI Members.
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    \13\ 12 U.S.C. 78q-1(b)(3)(F).
    \14\ 12 U.S.C. 78q-1(b)(3)(D).
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II. Discussion

    Section 19(b)(2)(C) of the Act \15\ directs the Commission to
approve a proposed rule change of a self-regulatory organization if it
finds that such proposed rule change is consistent with the
requirements of the Act and rules and regulations thereunder applicable
to such organization. Section 17A(b)(3)(F) of the Act \16\ requires the
rules of a clearing agency to be designed to, among other things,
promote the prompt and accurate clearance and settlement of securities
transactions, assure the safeguarding of securities and funds which are
in the custody or control of the clearing agency or for which it is
responsible, and protect investors and the public interest. The
Commission finds that FICC's proposed rule change is consistent with
these requirements because it is designed to comply with FATCA while
eliminating uncertainty in funds settlement. Specifically, based on
FICC's representations, the Commission understands that the proposed
rule change is designed codify FICC's rules in a way that will allow
FICC to comply with FACTA without developing and maintaining a complex
FATCA Withholding system and, as a result, it will eliminate
uncertainty in funds settlement that FICC believes will arise if FICC
is subject to FATCA Withholding.\17\
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    \15\ 15 U.S.C. 78s(b)(2)(C).
    \16\ 12 U.S.C. 78q-1(b)(3)(F).
    \17\ In approving this proposed rule change, the Commission is
mindful of the IRS's jurisdiction respecting FATCA. This Order does
not interpret FATCA. The Commission's approval of the proposed rule
change in no way constitutes a determination or finding by the
Commission that the proposed rule change complies with FATCA, which
is under the purview of the IRS.
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III. Conclusion

    On the basis of the foregoing, the Commission finds that the
proposal is consistent with the requirements of the

Act and in particular with the requirements of Section 17A of the Act
\18\ and the rules and regulations thereunder.
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    \18\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
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    It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
that the proposed rule change (SR-FICC-2013-04) be, and it hereby is,
approved.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-14393 Filed 6-17-13; 8:45 am]
BILLING CODE 8011-01-P