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    FED Final Rule Applies Netting Protection to Broader Range of Entities

    February 18, 2021

    FED finalized a rule that is intended to reduce risk and increase efficiency in the financial system by applying netting protections to a broader range of financial institutions. The final rule amends Regulation EE on Financial Institution Netting to apply netting provisions of the FDIC Improvement Act of 1991 (FDICIA) to certain new entities, including swap dealers. The rule also contains minor clarifications to the existing activities-based test in Regulation EE to clarify how the activities-based test applies following a consolidation of legal entities. The final rule becomes effective 30 days after its publication in the Federal Register.

    Sections 401-407 of FDICIA validate netting contracts among financial institutions. Parties to a netting contract agree that they will pay or receive the net, rather than the gross payment due under the netting contract. The FDICIA provides certainty that netting contracts will be enforced, even in the event of the insolvency of one of the parties. Regulation EE currently includes an activities-based test pursuant to which an entity can qualify as a financial institution for purposes of netting provisions of FDICIA if it is a market intermediary and, during the previous 15-month period, it engaged in financial contracts exceeding specified numerical thresholds. Consistent with the FDICIA goals of reducing systemic risk and increasing efficiency in the financial markets, this final rule of FED:

    • Expands the definition of financial institution to ensure that certain entities qualify as financial institutions, including swap dealers and security-based swap dealers; major swap participants and major security-based swap participants; nonbank systemically important financial institutions; certain financial market utilities; foreign banks; bridge institutions; qualifying central counterparties; the Bank for International Settlements; foreign central banks; and federal reserve banks.
    • Clarifies that, following a consolidation of legal entities, the surviving entity can determine whether its financial contracts exceeded the numerical thresholds in the activities-based test by considering the aggregated financial contracts of the consolidated persons during the previous 15-month period.

     

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    Effective Date: FR+30 Days

    Keywords: Americas, US, Banking, Securities, Security-based Swaps, Regulation EE, Netting, Activities based Test, Netting Contract, Derivatives, FED

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