FINRA Requests Comment on a Proposed Rule Requiring Confirmation Disclosure of Pricing Information in Fixed Income Securities Transactions

Pricing Disclosure in the Fixed Income Markets

Executive Summary

FINRA is requesting comment on a proposed FINRA rule that would require firms to disclose additional information on customer confirmations for transactions in fixed income securities. Specifically, FINRA is proposing that, for same-day, retail-size principal transactions, firms disclose on the customer confirmation the price to the customer, the price to the member of a transaction in the same security, and the differential between those two prices. FINRA and the Municipal Securities Rulemaking Board (MSRB) have discussed a coordinated approach to potential rulemaking in this area. The MSRB also is publishing a notice soliciting comment on a similar proposal.

The text of the proposed rules can be found in Attachment A.

Questions concerning this Notice should be directed to:

Action Requested

FINRA encourages all interested parties to comment on the proposal. Comments must be received by January 20, 2015.

Comments must be submitted through one of the following methods:

To help FINRA process comments more efficiently, persons should use only one method to comment on the proposal.

Important Notes: All comments received in response to this Notice will be made available to the public on the FINRA website. In general, FINRA will post comments as they are received.¹

Before becoming effective, a proposed rule change must be authorized for filing with the Securities and Exchange Commission (SEC) by the FINRA Board of Governors, and then must be filed with the SEC pursuant to Section 19(b) of the Securities Exchange Act of 1934 (SEA or Exchange Act).²

Background and Discussion

As part of its oversight of corporate and agency bond transactions, FINRA monitors firms' pricing of transactions based on TRACE reports. FINRA has observed that a significant number of retail-sized transactions (100 bonds or less or bonds with a face value of $100,000 or less) appear to have offsetting trades by the member firm in very close conjunction. Specifically, using data from the third quarter of 2013 for corporate bonds, FINRA has observed that over 60 percent of retail-size customer trades had corresponding principal trades on the same trading day. In over 88 percent of these events, the principal and the customer trades occurred within thirty minutes of each other. FINRA also has observed that while many of these trades have apparent mark-ups within a close range, significant outliers exist, indicating that customers in those trades paid considerably more than customers in other similar trades.³ Although knowledgeable industrious customers could observe these trading patterns retrospectively using TRACE data, our understanding is that retail customers do not typically consult TRACE data. ⁴

Customer confirmations already disclose the price to the customer of the bond transaction. FINRA believes that customers in retail-size trades would benefit from additional confirmation disclosure of the price of the offsetting trade by the firm and the differential between these prices when the offsetting trade is within the same trading day.

Recent Developments

In 2012, the Securities and Exchange Commission (SEC) issued a report on the municipal securities market, which surveyed the market structure and disclosure practices of the municipal securities market and made several recommendations including improving pre-trade and post-trade transparency and reinforcing existing dealer obligations.⁵ Among other things, the report recommended that the MSRB require municipal bond dealers to disclose to customers on confirmations for riskless principal transactions the amount of any mark-up or mark-down.⁶

In addition, in a speech given on June 20, 2014, SEC Chair Mary Jo White broadly identified initiatives to address investor concerns in the fixed income markets.⁷ Among other things, Chair White stated that the SEC would work with FINRA and the MSRB to develop rules regarding the disclosure of mark-ups in "riskless principal" transactions for both corporate and municipal bonds⁸ to help customers assess the reasonableness of their dealer's compensation, as riskless principal transactions become more common in the fixed income markets.⁹

Proposed Disclosure Requirement

As described in more detail below, FINRA believes that enhancing the disclosure requirements for transactions in fixed income securities to include additional pricing information will benefit investors by providing them with more information to better evaluate their transactions. FINRA is therefore proposing to amend FINRA Rule 2232 to require customer confirmation disclosure of same-day pricing information for customer retail size transactions in corporate and agency debt securities.¹⁰

Specifically, where a firm executes a sell (buy) transaction of "qualifying size" with a customer and executes a buy (sell) transaction as principal with one or multiple parties in the same security within the same trading day, where the size of the customer transaction(s) would otherwise be satisfied by the size of one or more same-day principal transaction(s), confirmation disclosure to the customer would be required. That disclosure would entail (i) the price to the customer; (ii) the price to the firm of the same-day trade; and (iii) the difference between those two prices.¹¹ The rule would define "qualifying size" as a purchase or sale transaction of 100 bonds or less or bonds with a face value of $100,000 or less, based on reported quantity, which is designed to capture those trades that are retail in nature.

The following examples address whether a transaction would trigger the proposed confirmation disclosure requirement:¹²

Example 1

Since the transaction involves the purchase of 50 bonds by the customer within the same trading day as Firm A's purchase of the same number of bonds, Firm A would be required to disclose on the customer confirmation the price to the firm (100), the price to the customer (102) and the differential between the two prices (2).

Example 2

Since the transactions involve the purchase of 100 bonds by each customer within the same trading day as Firm A's purchase of the same total number of bonds, Firm A would be required to disclose on the customer confirmations to each of the 5 customers the price to the firm (100), the price to the customer (102.50), and the differential between the two prices (2.50).

Example 3

Since the size of the customer transaction was satisfied by the size of the firm's principal transaction on the same day, Firm A would be required to disclose on the customer confirmation the price to the firm (100), the price to the customer (102.50), and the differential between the two prices (2.50).

Example 4

Since the size of the customer's purchase of bonds from Firm A is satisfied by the size of Firm A's purchase of bonds within the same trading day, Firm A would be required to disclose on the customer confirmation the price to the firm (100), the price to the customer 102), and the differential between the two prices (2.00).

Example 5

Firm A would not be required to disclose the proposed pricing information on the customer confirmation because the size of the customer transaction exceeds the qualifying size disclosure threshold of 100 bonds or less.

Example 6

Firm A would have disclosure requirements under the proposal to both customers. For Customer 1, Firm A would disclose the price to the firm (102), the price to the customer (98) and the differential between the two prices (4.00). For Customer 2, Firm A would disclose the price to the firm (98), the price to the customer (102) and the differential between the two prices (4.00).

Example 7

Where multiple firm trades equal the amount of the customer trade, Firm A would be required to disclose on the customer confirmation the weighted average price of the firm trades to the firm (99.40), the price to the customer (99.70), and the differential between the two prices (0.30). Note: In this example, the two firm trades are the equivalent of the customer trade and therefore a weighted average price would be used. Example 9 below provides a scenario where there are multiple transactions as principal that could form the basis of the firm's corresponding transaction(s) with its customers.

Example 8

Firm A would be required to disclose on the customer confirmation the price to the firm (100), the price to the customer (100), and the differential between the two prices (0).

Example 9

Where the firm engages in multiple transactions as principal that form the basis of its transactions with customers but exceed the number of bonds of the customer trade, FINRA expects that the firm would consistently apply a last in, first out (LIFO) methodology that would refer to the last principal trade(s) that preceded the customer trade. Firm A would therefore be required to disclose on the customer confirmation the price to the firm of the last transaction (103.50), the price to the customer (104.50), and the differential between the two prices (1).

Example 10

Where the firm engages in multiple transactions as principal that form the basis of its transactions with customers but exceed the number of bonds of the customer trade, FINRA expects that, in this scenario, the firm would consistently apply a methodology that would refer to the principal trade(s) in closest time proximity to the customer trade. Firm A would therefore be required to disclose on the customer confirmation the price to the firm of its first purchase (100), the price to the customer (102), and the differential between the two prices (2).

Example 11

Since the transaction involved the same-day purchase of 50 bonds by the customer, Firm A would be required to disclose on the customer confirmation the price to the firm (102.50), the price to the customer (103), and the differential between the two prices (0.50). The transaction that occurred on the previous trading day (Trading Day 1) would not be incorporated into the price disclosure.

Example 12

Firm A would not be required to disclose the pricing information on the customer confirmation since Firm A's position was acquired on a previous trading day before it was sold to the customer, and is therefore not subject to the disclosure requirement.

Example 13

Firm A would not be required to disclose the pricing information on the customer confirmation since the customer order could only be filled by the positions in XYZ that Firm A had acquired over two trading days. The transaction is therefore not subject to the disclosure requirement.

Economic Impact Analysis

Need for the Rule

FINRA is concerned that investors in fixed income securities currently are limited in their ability to understand and compare transaction costs.¹³ FINRA believes that furnishing additional pricing-related information to customers as part of the customer confirmation will provide customers with meaningful and useful information.

Economic Baseline

The proposed disclosure will likely affect both broker-dealers and retail investors that engage in transactions in fixed income securities. Under SEC Rule 10b-10 and current FINRA rules, a broker-dealer acting as principal for its own account and trading fixed income securities with a customer is not required to disclose the difference between the price to the customer and the price of the broker-dealer's offsetting trade(s). In the absence of the proposal, customers would not be able to ascertain with certainty the specific price to the broker-dealer in connection with a customer trade.

Retail customers currently receive some of the information considered in this proposal. Specifically, confirmation statements already include the price of bonds purchased. But the confirmation is not required to include information about the cost of the security to the firm. FINRA is aware that some broker-dealers may provide an indication of market value of the bond as part of the confirmation, where that market value reflects either a recent transaction price or a valuation for bonds that have not otherwise traded in close proximity to the customer trade.

As previously noted, FINRA makes TRACE data available to the public, and retail customers may have access to recent trading histories through free finance Web portals, such as Yahoo Finance or FINRA's own website. But it is not possible to determine the value of the specific securities offered to the customer from the public sources.

Benefits

FINRA believes this additional pricing information will better enable customers to evaluate the cost and quality of the services firms provide by assisting customers in monitoring current same-day prices a firm and a customer pays or receives in connection with a transaction. The proposal will provide customers with pricing information that customers cannot currently obtain through TRACE data. FINRA further believes this type of information will promote transparency into firms' pricing practices and encourage communications between firms and their customers about pricing of their fixed income transactions. This proposal also may provide customers with additional information that may assist them in detecting practices that are possibly improper, which would supplement FINRA's own surveillance and enforcement program.¹⁴

Costs

FINRA recognizes that the proposal would impose burdens and costs on firms. Specifically, FINRA expects that the proposal would require firms to modify their systems to identify instances where firm and customer trades in the same security occur on the same trading day and to adopt a methodology to satisfy the disclosure requirement. Firms may need to record and monitor the decisions on the disclosure methodology. Firms would have to adopt compliance policies and procedures to ensure consistent and appropriate application of the methodology. Firms would also be required to calculate the price difference between the customer and firm trade, and to convey the firm price and differential to the customer price on the customer confirmation. FINRA understands some firms may use legacy systems for confirmations which may be costly to reprogram. FINRA staff will estimate the costs based on the information obtained through the public comment process.

FINRA is requesting comment on the potential for the proposal to have an unintended negative impact on market behavior, such as whether the proposal could result in decreased liquidity in the fixed income market, for example, if firms were less likely to hold bonds in inventory, or if firms would reduce service in retail-size trades. Specifically, FINRA is seeking evidence of the likelihood and size of such an impact. FINRA also is soliciting comment on whether the proposal could create confusion for investors where an investor receives the proposed disclosure for some transactions (e.g., below the proposed size threshold and the firm and customer trades occur on the same trading day), but not for other transactions (e.g., above the proposed size threshold or where the firm and customer trades did not occur on the same trading day).

Regulatory Alternatives

FINRA also recognizes that there are alternatives to the proposed approach of requiring disclosure of pricing information for trades in the same security where the firm and the customer trades occur on the same trading day. For example, another possible approach would be to require disclosure of the same pricing information, but limited to "riskless principal" trades, which would be consistent with the amendments to Rule 10b-10 that were previously proposed by the SEC.¹⁵

FINRA believes that there are increased benefits to requiring disclosure of pricing information for all trades in the same security where the firm and the customer trades occur on the same trading day, rather than limiting the proposal to only riskless principal trades. For example, FINRA believes using the proposed approach would result in the disclosure of pricing information for more retail-size trades, and that limiting the proposal to riskless principal transactions would exclude transactions where the pricing information would be valuable to the customer.¹⁶ FINRA also believes that, in trades in the same security where the firm and the customer trades occur on the same trading day, most of these trades occur in close time proximity to each other, which minimizes concerns that intervening news or market movement that occur between the component trades would create a corresponding change in the price differential between the components.¹⁷ FINRA believes that the close time proximity of the trades further supports that the pricing information would be valuable to investors.

In addition, FINRA believes that the proposed approach may allow for a more mechanical approach by firms than the riskless principal or marking approaches, which may require firms to conduct a trade-by-trade analysis to determine whether a specific trade was riskless or not. FINRA therefore believes that the proposed approach will provide more certainty to firms regarding their confirmation disclosure obligations. To the extent there are questions as to the methodology a firm uses to determine whether a trade is subject to the disclosure requirement, especially where a firm engages in multiple transactions as principal that form the basis of its corresponding transactions with customers, FINRA is specifically soliciting comment on such question as set forth in the Request for Comments section below.

FINRA also appreciates the potential complexities of requiring confirmation disclosure for trades in the same security where the firm and the customer trades occur on the same trading day, especially from an operational perspective. Another alternative may be to require a firm to disclose on customer confirmations for principal retail-size bond trades the mark-up in the transaction based on a reasonable marking methodology consistently used by the firm in valuing the bonds for internal and other regulatory purposes. For near-time offsetting trades, the marking methodology would presumptively use cost unless a reasonable basis for using another price can be demonstrated. As set forth in the Request for Comments section below, FINRA is specifically soliciting comment on whether an alternative approach would be preferable to the proposed concept.

As set forth above, FINRA recognizes that there are alternative forms and data points of pricing information that may be disclosed to retail customers, and specifically requests comment on such alternatives. Of the options that were considered, however, FINRA believes that, in trades in the same security where the firm and the customer trades occur on the same trading day, requiring firms to disclose the price to the firm, the price to the customer, and the corresponding differential will provide customers with comprehensive and beneficial information, while balancing the costs and burdens to firms of providing the disclosure.

Request for Comments

FINRA seeks comments on all aspects of the proposal as outlined above. In addition to general comments, FINRA specifically requests comments on the following questions. FINRA requests data and quantified comments where possible.

¹ FINRA will not edit personal identifying information, such as names or email addresses, from submissions. Persons should submit only information that they wish to make publicly available. See Notice to Members 03-73 (November 2003) (Online Availability of Comments) for more information.

²See SEA Section 19 and rules thereunder. After a proposed rule change is filed with the SEC, the proposed rule change generally is published for public comment in the Federal Register. Certain Limited types of proposed rule changes, however, take effect upon filing with the SEC. See SEA Section 19(b)(3) and SEA Rule 19b-4.

³See note 16 infra.

⁴See note 13 infra.

⁵See U.S. Securities and Exchange Commission, Report on the Municipal Securities Market, dated July 31, 2012.

⁶ As noted above, the MSRB is publishing a similar proposal regarding disclosure of information by dealers to their retail customers to help them independently assess the prices they are receiving from dealers and to better understand some of the factors associated with the costs of their transactions. The MSRB's proposal also broadly seeks input on alternative regulatory approaches, including mark-up and mark-down disclosure on confirmations for trades that could be considered riskless principal transactions.

A mark-down is the amount by which the price of a security is reduced from the prevailing market price. A mark-up is the amount in excess of the prevailing market price that a customer pays a dealer when purchasing a security.

⁷See speech by Chair White, dated June 20, 2014, Intermediation in the Modern Securities Markets: Putting Technology and Competition to Work for Investors, Economic Club of New York, New York, NY.

⁸ MSRB Rule G-15 governs customer confirmations for transactions in municipal securities.

⁹ SEC Rule 10b-10 governs confirmations that must be delivered to customers in connection with transactions in equity and fixed income securities, except municipal securities. That rule generally requires that a broker-dealer acting in an agency capacity disclose the amount of any remuneration received or to be received from its customer in connection with a transaction in equity or fixed income securities. See 17 CFR 240.10b-10(a)(2)(i). When a broker-dealer is acting as principal, however, the disclosure requirements related to pricing information are different for equity and fixed income securities. When a broker-dealer is acting in a riskless principal capacity, Rule 10b-10 only requires a broker-dealer to disclose the amount of its mark-up or mark-down for transactions in equity securities. See 17 CFR 240.10b-10(a)(2)(ii). As a result, a customer receives different pricing information on its transaction confirmation depending on the type of security it is buying or selling.

FINRA rules also require that firms send transaction confirmations to customers, but do not impose any additional disclosure requirements on firms related to pricing information beyond what is required under SEC Rule 10b-10. Rule 2232 requires that a member send a customer confirmation before or upon completion of a transaction for or with a customer, in accordance with the requirements of SEC Rule 10b-10. See Rule 2232(a). In addition, FINRA rules governing mark-ups and mark-downs set forth standards by which the amount of a mark-up or mark-down may be assessed, but do not require members to disclose the amount of the mark-up or mark-down. See Rule 2121.

¹⁰ The rule defines a "corporate debt security" as a debt security that is United States (U.S.) dollar-denominated and issued by a U.S. or foreign private issuer and, if a "restricted security" as defined in Securities Act Rule 144(a)(3), sold pursuant to Securities Act Rule 144A, but does not include a Money Market Instrument as defined in Rule 6710(o). An "agency debt security" shall have the same meaning as in Rule 6710(1). The proposal would not apply to transactions in asset-backed securities, as defined in Rule 6710(m).

¹¹ As indicated previously, under Rule 10b-10, firms are already required to disclose on confirmations the price of the security that was bought or sold by the customer.

¹² Each of the following examples assumes a par value of $1,000 per bond. The disclosure requirements for bonds with a par value greater than $1,000 may vary, based on the number of bonds traded.

¹³ Currently, customers may use TRACE to determine pricing information for a fixed income security that is eligible for TRACE reporting, including the last trade price, execution time and execution quantity, using either the issuer's name or the CUSIP number. While this information may provide the customer with a useful basis of comparison for its transaction, a customer would not be able to use TRACE data to ascertain with certainty the specific price to its broker-dealer in connection with its trade, or the actual amount of the mark-up or mark-down incurred in connection with its trade.

In addition, investors would need to possess a certain degree of knowledge and skill to access and derive relevant information from TRACE. Therefore, existing TRACE data alone may not assist customers in fully understanding their trading costs.

¹⁴See Securities Exchange Act Release No. 33743 (March 9,1994), 59 FR 12767 (March 17, 1994) (noting the functions of the transaction confirmation).

¹⁵See Securities Exchange Act Release No. 33743 (March 9,1994), 59 FR 12767 (March 17, 1994). For purposes of requiring disclosure in equity securities where a broker or dealer is acting as principal for its own account, Rule 10b-10 requires disclosure where a broker or dealer, "after having received an order to buy from a customer... purchased the equity security from another person to offset a contemporaneous sale to such customer or, after having received an order to sell from a customer, the broker or dealer sold the security to another person to offset a contemporaneous purchase from such customer." See 17 CFR 240.10b-10(a)(2)(ii).

¹⁶ Using TRACE data from 3Q13, FINRA has observed that the proposed approach would have resulted in 41 percent more retail-size trades receiving pricing information. FINRA has also observed that, using TRACE data from 2013, the price differentials for customer buy and sell orders (which can be an indicator of the firm's mark-up and mark-down practices), were of varying amounts within similar sized trades, and that varying price differentials were not limited to riskless principal trades. FINRA therefore believes that the disclosure of pricing information should apply to a wider range of customer transactions, and should not be limited to riskless principal trades.

For example, for transactions of 10 to 40 bonds (or 10,000 to 40,000 par amount) in the Investment Grade category, the median calculated differential on customer sell orders was .42 percent, but the 95th percentile was 1.49 percent and the 99th percentile was 2.29 percent. For transactions of 40 to 70 bonds (or 40,000 par amount to 70,000 par amount) in the Investment Grade category, the median calculated differential was .38 percent, but the 95th percentile was 1.49 percent and the 99th percentile was 2.29 percent.

Similarly, with respect to the calculated differential on customer buy orders, for transactions of 10 to 40 bonds (or 10,000 to 40,000 par amount) in the Investment Grade category, the median calculated differential on customer buy orders was .66 percent, but the 95th percentile was 2.15 percent and the 99th percentile was 2.71 percent. For transactions of 40 to 70 bonds (or 40,000 to 70,000 paramount) in the Investment Grade category, the median calculated differential was .63 percent, but the 95th percentile was 2.08 percent and the 99th percentile was 2.76 percent.

This difference was also present in high yield and unrated securities.

¹⁷ TRACE data from 3Q13 also indicated that approximately 95 percent of the same-day trades occurred within 30 minutes of each other.

ATTACHMENT A

Below is the text of the proposed rule change. Proposed new language is underlined; proposed deletions are in brackets.

FINRA Rules

2230. Customer Account Statements and Confirmations

2232. Customer Confirmations

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