83_FR_3259 83 FR 3244 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Advance Notice Concerning Enhanced and New Tools for Recovery Scenarios

83 FR 3244 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Advance Notice Concerning Enhanced and New Tools for Recovery Scenarios

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 15 (January 23, 2018)

Page Range3244-3253
FR Document2018-01070

Federal Register, Volume 83 Issue 15 (Tuesday, January 23, 2018)
[Federal Register Volume 83, Number 15 (Tuesday, January 23, 2018)]
[Notices]
[Pages 3244-3253]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-01070]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82513; File No. SR-OCC-2017-809]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing of Advance Notice Concerning Enhanced and New Tools 
for Recovery Scenarios

January 17, 2018.
    Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall 
Street Reform and Consumer Protection Act, entitled Payment, Clearing 
and Settlement Supervision Act of 2010 (``Clearing Supervision Act'') 
\1\ and Rule 19b-4(n)(1)(i) under the Securities Exchange Act of 1934 
(``Act''),\2\ notice is hereby given that on December 8, 2017, The 
Options Clearing Corporation (``OCC'') filed with the Securities and 
Exchange Commission (``Commission'') an advance notice as described in 
Items I, II and III below, which Items have been prepared by OCC. The 
Commission is publishing this notice to solicit comments on the advance 
notice from interested persons.
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    \1\ 12 U.S.C. 5465(e)(1).
    \2\ 17 CFR 240.19b-4(n)(1)(i).
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I. Clearing Agency's Statement of the Terms of Substance of the Advance 
Notice

    This advance notice is filed in connection with a proposed change 
to make certain revisions to OCC's Rules and By-Laws to enhance OCC's 
existing tools to address the risks of liquidity shortfalls and credit 
losses and to establish new tools by which OCC could re-establish a 
matched book following a default. Each of the tools proposed herein is 
contemplated to be deployed by OCC in an extreme stress event that has 
placed OCC into a recovery or orderly wind-down scenario.
    The proposed changes to OCC's By-Laws and Rules were submitted as 
Exhibits 5A and 5B of the filing, and proposed changes to OCC's Default 
Management Policy were submitted as confidential Exhibit 5C of the 
filing.\3\ The proposed change is described in detail in Item II below. 
All terms with initial capitalization not defined herein have the same 
meaning as set forth in OCC's By-Laws and Rules.\4\
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    \3\ OCC has filed a proposed rule change with the Commission in 
connection with the proposed change. See SR-OCC-2017-017.
    \4\ OCC's By-Laws and Rules can be found on OCC's public 
website: http://optionsclearing.com/about/publications/bylaws.jsp.

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[[Page 3245]]

II. Clearing Agency's Statement of the Purpose of, and Statutory Basis 
for, the Advance Notice

    In its filing with the Commission, OCC included statements 
concerning the purpose of and basis for the advance notice and 
discussed any comments it received on the advance notice. The text of 
these statements may be examined at the places specified in Item IV 
below. OCC has prepared summaries, set forth in sections A and B below, 
of the most significant aspects of these statements.

(A) Clearing Agency's Statement on Comments on the Advance Notice 
Received From Members, Participants or Others

    Written comments were not and are not intended to be solicited with 
respect to the proposed rule change and none have been received. OCC 
will notify the Commission of any written comments received by OCC.

(B) Advance Notices Filed Pursuant to Section 806(e) of the Payment, 
Clearing, and Settlement Supervision Act

Purpose of the Proposed Change
Background
    The purpose of this proposed rule change is to make certain 
revisions to OCC's Rules and By-Laws Laws that are designed to enhance 
OCC's existing tools to address the risks of liquidity shortfalls and 
credit losses and to establish tools by which OCC could re-establish a 
matched book following a default. Each of the tools proposed herein is 
contemplated to be deployed by OCC in an extreme stress event that has 
placed OCC into a recovery or orderly wind-down scenario. Each of the 
proposed revisions also is designed to further OCC's compliance, in 
whole or in part, with the provisions of the Commission's rules 
identified immediately below.
    On September 28, 2016, the Commission adopted amendments to Rule 
17Ad-22 \5\ and added new Rules 17Ad-22(e)(3)(ii), (e)(4)(viii), 
(e)(4)(ix), (e)(7)(ix), (e)(13), (e)(23)(i) and (e)(23)(ii) \6\ 
pursuant to Section 17A of the Securities Exchange Act of 1934 \7\ and 
the Payment, Clearing, and Settlement Supervision Act of 2010 
(``Payment, Clearing and Settlement Supervision Act'').\8\ In relevant 
part, these new rules collectively require a covered clearing agency 
(``CCA''), as defined by Rule 17Ad-22(a)(5),\9\ to establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to: (1) Maintain a risk management framework 
including plans for recovery and orderly wind-down necessitated by 
credit losses, liquidity shortfalls, general business risk losses or 
any other losses, (2) effectively identify, measure, monitor and manage 
its credit exposures to participants and those arising from its 
payment, clearing and settlement processes, including by addressing the 
allocation of credit losses a CCA might face if its collateral and 
other resources are insufficient to fully cover its credit exposures, 
(3) effectively identify, measure, monitor and manage credit exposures, 
including by describing the process to replenish any financial resource 
that a CCA may use following a default event or other event in which 
use of such resource is contemplated, (4) effectively identify, 
measure, monitor and manage liquidity risks that arises or is borne by 
the CCA by, at a minimum, describing the process for replenishing any 
liquid resource that a CCA may employ during a stress event, (5) ensure 
it has the authority and operational capacity to take timely action to 
contain losses and liquidity demands and continue to meet its 
obligations, (6) publicly disclose relevant rules and material 
procedures, including key aspects of its default rules and procedures, 
and (7) provide sufficient information to enable participants to 
identify and evaluate the risks, fees, and other material costs they 
incur by participating in the CCA. The relevant portions of each of 
these new requirements is restated below:
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    \5\ 17 CFR 240.17Ad-22.
    \6\ 17 CFR 240.17Ad-22(e)(3)(ii), (e)(4)(viii), (e)(4)(ix), 
(e)(7)(ix), (e)(13), (e)(23)(i) and (e)(23)(ii).
    \7\ 15 U.S.C. 78q-1.
    \8\ 12 U.S.C. 5461 et seq.
    \9\ 17 CFR 240.17Ad-22(a)(5).
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     Rule 17Ad-22(e)(3)(ii) requires that each CCA ``establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to . . . [m]aintain a sound risk management 
framework for comprehensively managing legal, credit, liquidity, 
operational, general business, investment, custody, and other risks 
that arise in or are borne by the [CCA], which . . . [i]ncludes plans 
for the recovery and orderly wind-down of the [CCA] necessitated by 
credit losses, liquidity shortfalls, losses from general business risk, 
or any other losses.'' \10\
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    \10\ 17 CFR 240.17Ad-22(e)(3)(ii).
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     Rule 17Ad-22(e)(4)(viii) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [e]ffectively identify, 
measure, monitor, and manage its credit exposures to participants and 
those arising from its payment, clearing, and settlement processes, 
including by . . . [a]ddressing allocation of credit losses the [CCA] 
may face if its collateral and other resources are insufficient to 
fully cover its credit exposures, including the repayment of any funds 
the [CCA] may borrow from liquidity providers.'' \11\
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    \11\ 17 CFR 240.17Ad-22(e)(v)(viii).
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     Rule 17Ad-22(e)(4)(ix) requires that each CCA ``establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to . . . [e]ffectively identify, measure, monitor, 
and manage its credit exposures to participants and those arising from 
its payment, clearing, and settlement processes, including by . . . 
[d]escribing the [CCA's] process to replenish any financial resources 
it may use following a default or other event in which use of such 
resources is contemplated.'' \12\
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    \12\ 17 CFR 240.17Ad-22(e)(4)(ix).
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     Rule 17Ad-22(e)(7)(ix) requires that each CCA ``establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to . . . [e]ffectively measure, monitor, and manage 
the liquidity risk that arises in or is borne by the [CCA], including 
measuring, monitoring, and managing its settlement and funding flows on 
an ongoing and timely basis, and its use of intraday liquidity by, at a 
minimum, doing the following...[d]escribing the [CCA's] process to 
replenish any liquid resources that the clearing agency may employ 
during a stress event.'' \13\
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    \13\ 17 CFR 240.17Ad-22(e)(7)(ix).
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     Rule 17Ad-22(e)(13) requires that each CCA ``establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to . . . [e]nsure the covered clearing agency has 
the authority and operational capacity to take timely action to contain 
losses and liquidity demands and continue to meet its obligations . . 
.'' \14\
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    \14\ 17 CFR 240.17Ad-22(e)(13).
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     Rule 17Ad-22(e)(23)(i) requires that each CCA ``establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to . . . [p]ublicly disclos[e] all relevant rules 
and material procedures, including key aspects of its default rules and 
procedures.'' \15\
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    \15\ 17 CFR 240.17Ad-22(e)(23)(i).
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     Rule 17Ad-22(e)(23)(ii) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [p]rovid[e] sufficient 
information to enable participants to identify and evaluate the risks, 
fees, and other material costs they incur by

[[Page 3246]]

participating in the covered clearing agency.'' \16\
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    \16\ 17 CFR 240.17Ad-22(e)(23)(ii).
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    OCC meets the definition of a CCA and is therefore subject to the 
requirements of the CCA rules, including new Rules 17Ad-22(e)(3)(ii), 
(e)(4)(viii), (e)(4)(ix), (e)(7)(ix), (e)(13), (e)(23)(i) and 
(e)(23)(ii).\17\
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    \17\ 17 CFR 240.17Ad-22(e)(3)(ii), (e)(4)(viii), (e)(4)(ix) and 
(e)(7)(ix).
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Proposed Changes
Summary of Proposed Changes
    In order to enhance OCC's existing tools to address the risks of 
liquidity shortfalls and credit losses and to establish new tools by 
which OCC could re-establish a matched book following a default, OCC is 
proposing to make the following revisions to its Rules and By-Laws:
    (1) Revise the existing assessment powers in Section 6 of Article 
VIII of OCC's By-Laws, specifically to:
    (a) Establish a rolling ``cooling-off period'' that would be 
triggered by the payment of a proportionate charge against the Clearing 
Fund (``triggering proportionate charge''), during which period the 
aggregate liability of a Clearing Member to replenish the Clearing Fund 
(inclusive of assessments) would be 200% of the Clearing Member's 
required contribution as of the time immediately preceding the 
triggering proportionate charge;
    (b) Clarify that a Clearing Member that chooses to terminate its 
membership status during a cooling-off period will not be liable for 
replenishment of the Clearing Fund immediately following the expiration 
of such cooling-off period, provided that the withdrawing Clearing 
Member satisfies enumerated criteria, including providing notice of 
such termination by no later than the end of the cooling-off period and 
by closing-out and/or transferring of all its open positions with OCC 
by no later than the last day of the cooling-off period; and
    (c) Delineate between the obligation of a Clearing Member to 
replenish its contributions to the Clearing Fund and its obligations to 
meet additional ``assessments'' that may be levied following a 
proportionate charge to the Clearing Fund.
    (2) Adopt a new Rule 1009 that would provide OCC with discretionary 
authority to call for voluntary payments from non-defaulting Clearing 
Members in a circumstance where one or more Clearing Members has 
already defaulted and OCC has determined that it may not have 
sufficient resources to satisfy its obligations and liabilities 
resulting from such default. Rule 1009 also would establish that OCC 
would prioritize compensation of Clearing Members that made voluntary 
payments from any amounts recovered from the defaulted Clearing 
Members.
    (3) Adopt a new Rule 1111 that would provide authority to:
    (a) Allow OCC to call for voluntary tear-ups (``Voluntary Tear-
Up,'' as defined below) of non-defaulting Clearing Member and/or 
customer positions at any time following the suspension or default of a 
Clearing Member, with the scope of any such Voluntary Tear-Ups being 
determined by the Risk Committee of OCC's Board (``Risk Committee'');
    (b) Allow OCC's Board to vote to tear-up the ``Remaining Open 
Positions'' (defined below) of a defaulted Clearing Member, as well as 
any ``Related Open Positions'' (defined below) in a circumstance where 
OCC has attempted one or more auctions of such defaulted Clearing 
Member's remaining open positions and OCC has determined that it may 
not have sufficient resources to satisfy its obligations and 
liabilities resulting from such default with the scope of any such 
tear-up (``Partial Tear-Up'') being determined by the Risk Committee; 
and
    (c) Allow OCC's Board to vote to re-allocate losses, costs and fees 
imposed upon holders of positions extinguished in a Partial Tear-Up 
through a special charge levied against remaining non-defaulting 
Clearing Members.
    (4) Revise the descriptions and authorizations in Article VIII of 
OCC's By-Laws concerning the use of the Clearing Fund to reflect the 
discretion of OCC to use remaining Clearing Fund contributions to re-
allocate losses imposed on non-defaulting Clearing Members and 
customers from a Voluntary Tear-Up or a mandatory tear-up (``Partial 
Tear-Up,'' as defined below).
Discussion of Proposed Changes
    Each of the proposed revisions to OCC's Rules and By-Laws is 
described in more detail in the following sub-sections:
1. Proposed Changes to OCC's Assessment Powers
a. Current Assessment Powers
    OCC's current assessment powers are described in Section 6 of 
Article VIII of OCC's By-Laws. Section 6 establishes a general 
requirement for each Clearing Member to promptly make good any 
deficiency in its required contribution to the Clearing Fund whenever 
an amount is paid out of its Clearing Fund contribution (whether by 
proportionate charge or otherwise).\18\ In this regard, a Clearing 
Member's obligation to replenish the Clearing Fund is not currently 
subject to any pre-determined limit. Notwithstanding the foregoing, a 
Clearing Member can limit the amount of its liability for replenishing 
the Clearing Fund (at an additional 100% of the amount of its then-
required Clearing Fund contribution) by winding-down its clearing 
activities and terminating its status as a Clearing Member. Any 
Clearing Member seeking to so limit its liability for replenishing the 
Clearing Fund must: (i) Notify OCC in writing not later than the fifth 
business day after the proportionate charge that it is terminating its 
status as a Clearing Member, (ii) not initiate any opening purchase or 
opening writing transaction, and, if the Clearing Member is a Market 
Loan Clearing Member or a Hedge Clearing Member, not initiate any Stock 
Loan transaction, through any of its accounts, and (iii) close out or 
transfer all of its open positions as promptly as practicable after 
giving notice to OCC. Thus, withdrawal from clearing membership is the 
only means by which a Clearing Member currently can limit its liability 
for replenishing the Clearing Fund.
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    \18\ Under Article VIII, Section 6 of OCC's By-Laws, OCC 
currently has authority to assess proportionate charges against 
Clearing Members' contributions to the Clearing Fund in certain 
enumerated situations. For example, Section 6 generally provides 
that if the conditions regarding a Clearing Member default specified 
in subparagraphs (a)(i) through (vi) of Article VIII, Section 5 of 
OCC's By-Laws are satisfied, OCC will make good resulting losses or 
expenses that are suffered by OCC by applying the defaulting 
Clearing Member's Clearing Fund contribution after first applying 
other funds available to OCC in the accounts of the Clearing Member. 
If the sum of the obligations, however, exceeds the total Clearing 
Fund contribution and other funds of the defaulting Clearing Member 
available to OCC, then OCC will charge the amount of the remaining 
deficiency on a proportionate basis against all non-defaulting 
Clearing Members' required contributions to the Clearing Fund at the 
time. Section 5(b) of Article VIII of OCC's By-Laws similarly 
provides for proportionate charges against Clearing Members' 
contributions to the Clearing Fund when certain conditions are met 
that involve a failure by a bank or a securities or commodities 
clearing organization to perform obligations to OCC when they are 
due.
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b. Proposed Changes to Assessment Powers
    OCC proposes to amend Section 6 of Article VIII of OCC's By-Laws to 
make three primary modifications regarding its existing authority to 
assess proportionate charges against Clearing Members' contributions to 
the Clearing Fund. First, the proposal introduces an automatic minimum 
fifteen calendar day ``cooling-off'' period that begins

[[Page 3247]]

when a proportionate charge is assessed by OCC against Clearing 
Members' Clearing Fund contributions. While the cooling-off period will 
continue for a minimum of fifteen consecutive calendar days, if one or 
more of the events described in clauses (i) through (iv) of Article 
VIII, Section 5(a) of OCC's By-Laws occur(s) during that fifteen 
calendar day period and result in one or more proportionate charges 
against the Clearing Fund, the cooling-off period shall be extended 
through either (i) the fifteenth calendar day from the date of the most 
recent proportionate charge resulting from the subsequent event, or 
(ii) the twentieth day from the date of the proportionate charge that 
initiated the cooling-off period, whichever is sooner.
    During a cooling-off period, each Clearing Member would have its 
aggregate liability to replenish the Clearing Fund capped at 200% of 
the Clearing Member's then-required contribution to the Clearing Fund. 
Once the cooling-off period ends each remaining Clearing Member would 
be required to replenish the Clearing Fund in the amount necessary to 
meet its then-required contribution. Once the cooling-off period ends, 
any remaining losses or expenses suffered by OCC as a result of any 
event described in clauses (i) through (iv) of Article VIII, Section 
5(a) of OCC's By-Laws that occurred during such cooling-off period 
could not be charged against the amounts Clearing Members have 
contributed to replenish the Clearing Fund upon the expiration of the 
cooling-off period.\19\
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    \19\ After a cooling-off period has ended, the occurrence of any 
event described in clauses (i) through (iv) of Article VIII, Section 
5(a) of OCC's By-Laws that results in a proportionate charge against 
the Clearing Fund would trigger a new cooling off period, and 
thusly, a cap of 200% of each Clearing Member's then-required 
contribution would again apply.
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    Second, in connection with the cooling-off period, the proposal 
would extend the time frame within which a Clearing Member may provide 
a termination notice to OCC to avoid liability for replenishment of the 
Clearing Fund after the cooling-off period and would modify the 
obligations of such a terminating Clearing Member for closing-out and 
transferring its remaining open positions. Specifically, to effectively 
terminate its status as a Clearing Member and not be liable for 
replenishing the Clearing Fund after the cooling-off period, a Clearing 
Member would be required to: (i) Notify OCC in writing of its intent to 
terminate not later than the last day of the cooling-off period, (ii) 
not initiate any opening purchase or opening writing transaction, and, 
if the Clearing Member is a Market Loan Clearing Member or a Hedge 
Clearing Member, not initiate any Stock Loan transaction, through any 
of its accounts, and (iii) close-out or transfer all of its open 
positions by no later than the last day of the cooling-off period. If a 
Clearing Member fails to satisfy all of these conditions by the end of 
a given cooling-off period, it would not have completed all of the 
requirements necessary to terminate its status as a Clearing Member 
under Article VIII, Section 6 of OCC's By-Laws and therefore it would 
remain subject to the obligation to replenish the Clearing Fund after 
the end of the cooling-off period.
    Third, the proposal would clarify the distinction between 
``replenishment'' of the Clearing Fund and a Clearing Member's 
obligation to answer ``assessments.'' In this context, the term 
``replenish'' (and its variations) shall to refer to a Clearing 
Member's standing duty, following any proportionate charge against the 
Clearing Fund, to return its Clearing Fund contribution to the amount 
required from such Clearing Member for the month in question.\20\ The 
term ``assessment'' (and its variations) shall refer to the amount, 
during any cooling-off period, that a Clearing Member would be required 
to contribute to the Clearing Fund in excess of the amount of the 
Clearing Member's pre-funded required Clearing Fund contribution.
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    \20\ This assumes that the proportionate charge resulted in the 
Clearing Member's actual Clearing Fund contribution dropping below 
the amount of its required contribution (i.e., that the Clearing 
Member did not have excess above its required contribution that was 
sufficient to cover the amount of the proportionate charge allocated 
to such Clearing Member).
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Proposed Addition of Ability To Request Voluntary Payments
    OCC proposes to add new Rule 1009, which will provide a framework 
by which OCC could receive voluntary payments in a circumstance where a 
Clearing Member has defaulted and OCC has determined that, 
notwithstanding the availability of any remaining resources under OCC 
Rules 707, 1001, 1104 through 1107, 2210 and 2211,\21\ OCC may not have 
sufficient resources to satisfy its obligations and liabilities 
resulting from such default. Under new Rule 1009, OCC will initiate a 
call for voluntary payments by issuing a ``Voluntary Payment Notice'' 
inviting all non-defaulting Clearing Members to make payments to the 
Clearing Fund in addition to any amounts they are otherwise required to 
contribute pursuant to Rule 1001. The Voluntary Payment Notice would 
specify the terms applicable to any voluntary payment, including but 
not limited to, that any voluntary payment may not be withdrawn once 
made, that no Clearing Member shall be obligated to make a voluntary 
payment and that OCC shall retain full discretion to accept or reject 
any voluntary payment. Rule 1009 specifies that if OCC subsequently 
recovers from the defaulted Clearing Member or the estate(s) of the 
defaulted Clearing Member(s), OCC would seek to compensate first from 
such recovery all non-defaulting Clearing Members that made voluntary 
payments (and if the amount recovered from the defaulted Clearing 
Member(s) is less than the aggregate amount of voluntary payments, non-
defaulting Clearing Members that made voluntary payments each would 
receive a percentage of the recovery that corresponds to that Clearing 
Member's percentage of the total amount of voluntary payments 
received).
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    \21\ Rule 707 addresses the treatment of funds in a Clearing 
Member's X-M accounts. Rule 1001 addresses the size of OCC's 
Clearing Fund and the amount of a Clearing Member's contribution. 
Rules 1104 through 1107 concern the treatment of the portfolio of a 
defaulted Clearing Member. Rules 2210 and 2211 concern the treatment 
of Stock Loan positions of a defaulted Clearing Member.
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Proposed Addition of Ability To Conduct Voluntary Tear-Ups
    OCC proposes to add new Rule 1111, which, in relevant part, will 
establish a framework by which non-defaulting Clearing Members and non-
defaulting customers of Clearing Members could be given an opportunity 
to voluntarily extinguish (i.e., voluntarily tear-up) their open 
positions at OCC in a circumstance where a Clearing Member has 
defaulted and OCC has determined that, notwithstanding the availability 
of any remaining resources under OCC Rules 707, 1001, 1104 through 
1107, 2210 and 2211, OCC may not have sufficient resources to satisfy 
its obligations and liabilities resulting from such default.
    While Risk Committee approval is not needed to commence a voluntary 
tear-up, the Risk Committee would be responsible for determining the 
appropriate scope of each voluntary tear-up. To ensure OCC retains 
sufficient flexibility to effectively deploy this tool in an extreme 
stress event, proposed Rule 1111(c) is drafted to provide the Risk 
Committee with discretion to determine the appropriate

[[Page 3248]]

scope of each voluntary tear-up.\22\ New Rule 1111(c) also would impose 
standards designed to circumscribe the Risk Committee's discretion, 
requiring that any determination regarding the scope of a voluntary 
tear-up shall (i) be based on then-existing facts and circumstances, 
(ii) be in furtherance of the integrity of OCC and the stability of the 
financial system, and (iii) take into consideration the legitimate 
interests of Clearing Members and market participants.
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    \22\ Notwithstanding the discretion that would be afforded by 
the text of proposed Rule 1111(c), OCC anticipates that the scope of 
voluntary tear-ups likely would be dictated by the cleared contracts 
remaining in the portfolio(s) of the defaulted Clearing Member(s).
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    Once the Risk Committee has determined the scope of the Voluntary 
Tear-Up, OCC will initiate the call for voluntary tear-ups by issuing a 
``Voluntary Tear-Up Notice.'' The Voluntary Tear-Up Notice shall inform 
all non-defaulting Clearing Members of the opportunity to participate 
in a Voluntary Tear-Up.\23\ The Voluntary Tear-Up Notice would specify 
the terms applicable to any voluntary tear-up, including but not 
limited to, that no Clearing Member or customers of a Clearing Member 
shall be obligated to participate in a voluntary tear-up and that OCC 
shall retain full discretion to accept or reject any voluntary tear-up.
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    \23\ Since OCC does not know the identities of Clearing Members' 
customers, OCC would depend on each Clearing Member to notify its 
customers with positions in scope of the Voluntary Tear-Up of the 
opportunity to participate in such tear-up.
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    OCC is not proposing a tear-up process that would require the 
imposition of ``gains haircutting'' (i.e., the reduction of unpaid 
gains) on a portion of OCC's cleared contracts.\24\ Instead, OCC has 
determined that its tear-up process--for both Voluntary Tear-Ups as 
well as Partial Tear-Ups--should be initiated on a date sufficiently in 
advance of the exhaustion of OCC's financial resources such that OCC 
would be expected to have adequate remaining resources to cover the 
amount it must pay to extinguish the positions of Clearing Members and 
customers without haircutting gains.\25\
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    \24\ In general, forced gains haircutting is a tool that can be 
more easily applied to products whose gains are settled at least 
daily, like futures through an exchange of variation margin, and by 
central counterparties with comparatively large daily settlement 
flows. Listed options, which constitute the vast majority of the 
contracts cleared by OCC, do not have daily settlement flows and any 
attempt to reduce the ``unrealized gains'' of a listed options 
contract would require the reduction of the option premium that is 
embedded within the required margin (such a process would 
effectively require haircutting the listed option's initial margin).
    \25\ OCC anticipates that it would determine the date on which 
to initiate Partial Tear-Ups by monitoring its remaining financial 
resources against the potential exposure of the remaining 
unauctioned positions from the portfolio(s) of the defaulted 
Clearing Member(s).
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    In OCC's proposed tear-up process, the holders of torn-up positions 
would be assigned a Tear-Up Price and OCC would draw on its remaining 
financial resources in order to extinguish the torn-up positions at the 
assigned Tear-Up Price without forcing a reduction in the amount unpaid 
gains on such positions. The proposed changes would provide OCC with 
two separate and non-exclusive means of equitably re-allocating the 
losses, costs or expenses imposed upon the holders of torn-up positions 
as a result of the tear-up(s). First, the proposed changes to Article 
VIII would provide OCC discretion to use remaining Clearing Fund 
contributions to re-allocate losses imposed on non-defaulting Clearing 
Members and customers from such tear-up(s). Second, Rule 1111(a) would 
provide that if OCC subsequently recovers from the defaulted Clearing 
Member or the estate(s) of the defaulted Clearing Member(s) and the 
amount of such recovery exceeds the amount OCC received in voluntary 
payments, then non-defaulting Clearing Members and non-defaulting 
customers that voluntarily tore-up open positions and incurred losses 
from such tear-ups would be repaid from the amount of the recovery in 
excess of the amount OCC received in voluntary payments.\26\ If the 
amount recovered is less than the aggregate amount of Voluntary Tear-
Up, each non-defaulting Clearing Member and non-defaulting customer 
that incurred losses from voluntarily torn-up positions would be repaid 
in an amount proportionate to the percentage of its total amount of 
losses, costs and fees imposed on Clearing Members or customers as a 
result of the Voluntary Tear-Ups.
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    \26\ In order to effect re-allocation of the losses, costs or 
expenses imposed upon the holders of torn-up positions, OCC expects 
that after it has completed its tear-up process and re-established a 
matched book, holders of both voluntarily torn-up and mandatorily 
torn-up positions would be provided with a limited opportunity to 
re-establish positions in the contracts that were voluntarily or 
mandatorily extinguished. After the expiration of such period, OCC 
would seek to collect the information on the losses, costs or 
expenses that had been imposed on the holders of torn-up positions. 
Based on the information collected, OCC would determine whether it 
can reasonably determine the losses, costs and expenses sufficiently 
to re-allocate such amounts.
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    With respect to Voluntary Tear-Ups, new Rule 1111(h) would clarify 
that no action or omission by OCC pursuant to and in accordance Rule 
1111 shall constitute a default by OCC.
Proposed Addition of Ability To Conduct Partial Tear-Ups
    OCC proposes to add new Rule 1111, which, in relevant part, will 
provide the Board with discretion to extinguish the remaining open 
positions of any defaulted Clearing Member or customer of such 
defaulted Clearing Member(s) (such positions, ``Remaining Open 
Positions''), as well as any related open positions as necessary to 
mitigate further disruptions to the markets affected by the Remaining 
Open Positions (such positions, ``Related Open Positions''), in a 
circumstance where a Clearing Member has defaulted and OCC has 
determined that, notwithstanding the availability of any remaining 
resources under OCC Rules 707, 1001, 1104 through 1107, 2210 and 2211, 
OCC may not have sufficient resources to satisfy its obligations and 
liabilities resulting from such default (such tear-ups hereinafter 
collectively referred to as ``Partial Tear-Ups''). Like the 
determination for Voluntary Tear-Ups, the Risk Committee shall 
determine the appropriate scope of each Partial Tear-Up and such 
determination shall (i) be based on then-existing facts and 
circumstances, (ii) be in furtherance of the integrity of OCC and the 
stability of the financial system, and (iii) take into consideration 
the legitimate interests of Clearing Members and market participants. 
Once the Risk Committee has determined the scope of the Partial Tear-
Up, OCC will initiate the Partial Tear-Up process by issuing a 
``Partial Tear-Up Notice.'' The Partial Tear-Up Notice shall (i) 
identify the Remaining Open Positions and Related Open Positions 
designated for tear-up, (ii) identify the open positions of non-
defaulting Clearing Members and non-defaulting customers that will be 
subject to Partial Tear-Up (such positions, ``Tear-Up Positions''), 
(iii) specify the termination price (``Partial Tear-Up Price'') for 
each position to be torn-up, and (iv) list the date and time as of 
which the Partial Tear-Up will occur.\27\ With regard to the date and 
time of a Partial Tear-Up, Rule 1111(d) specifies that the Risk 
Committee shall set the date and time. With regard to the Partial Tear-
Up Price, OCC anticipates that it is likely to use the last established 
end-of-day settlement price, in accordance with its existing practices 
concerning pricing and valuation. However, given that it is not 
possible to know in advance the precise circumstances that would cause

[[Page 3249]]

OCC to conduct a tear-up, Rule 1111(f) has been drafted to allow OCC to 
exercise reasonable discretion, if necessary, in establishing the 
Partial Tear-Up Price by some means other than its existing practices 
concerning pricing and valuation. Specifically, Rule 1111(f) would 
require that OCC, in exercising any such discretion, would act in good 
faith and in a commercially reasonable manner to adopt methods of 
valuation expected to produce reasonably accurate substitutes for the 
values that would have been obtained from the relevant market if it 
were operating normally, including but not limited to the use of 
pricing models that use the market price of the underlying interest or 
the market prices of its components. Rule 1111(f) further specifies 
that OCC may consider the same information set forth in subpart (c) of 
Section 27, Article VI of OCC's By-Laws.\28\
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    \27\ Since OCC does not know the identities of Clearing Members' 
customers, OCC would depend on each Clearing Member to notify its 
customers with positions in scope of the Partial Tear-Up of the 
possibility of tear-up.
    \28\ In relevant part, subpart (c) reads as follows: ``In 
determining a close-out amount, the Corporation may consider any 
information that it deems relevant, including, but not limited to, 
any of the following: (1) Prices for underlying interests in recent 
transactions, as reported by the market or markets for such 
interests; (2) quotations from leading dealers in the underlying 
interest, setting forth the price (which may be a dealing price or 
an indicative price) that the quoting dealer would charge or pay for 
a specified quantity of the underlying interest; (3) relevant 
historical and current market data for the relevant market, provided 
by reputable outside sources or generated internally; and (4) values 
derived from theoretical pricing models using available prices for 
the underlying interest or a related interest and other relevant 
data. Amounts stated in a currency other than U.S. Dollars shall be 
converted to U.S. Dollars at the current rate of exchange, as 
determined by the Corporation. A position having a positive close-
out value shall be an `asset position' and a position having a 
negative close-out value shall be a `liability position.' ''
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    The scope of any Partial Tear-Up will be determined in accordance 
with Rule 1111(e). With respect to the extinguishment of Remaining Open 
Positions, OCC will designate Tear-Up Positions in identical Cleared 
Contracts and Cleared Securities on the opposite side of the market and 
in an aggregate amount equal to that of the Remaining Open Positions. 
OCC will only designate Tear-Up Positions in the accounts of non-
defaulting Clearing Members (inclusive of such Clearing Members' 
customer accounts) with an open position in the applicable Cleared 
Contract or Cleared Security and of non-defaulted customers of a 
defaulted Clearing Member. Tear-Up Positions shall be designated and 
applied by OCC on a pro rata basis across all the identical positions 
in Cleared Contracts and Cleared Securities on the opposite side of the 
market in the accounts of non-defaulted Clearing Members and non-
defaulted customers (including the non-defaulted customers of defaulted 
Clearing Members).
    Rule 1111(e)(iii) provides that every Partial Tear-Up position is 
automatically terminated upon and with effect from the Partial Tear-Up 
Time, without the need for any further step by any party to such 
Cleared Contract or Cleared Security, and that upon termination, either 
OCC or the relevant Clearing Member (as the case may be) shall be 
obligated to pay the other the applicable Partial Tear-Up Price. Rule 
1111(e)(iii) further provides that the corresponding open position 
shall be deemed terminated at the Partial Tear-Up Price.
    Rule 1111(g) provides that to the extent losses imposed upon non-
defaulting Clearing Members and non-defaulting customers resulting from 
a Partial Tear-Up can reasonably be determined, the Board may elect to 
re-allocate such losses among all non-defaulting Clearing Members 
through a special charge to all non-defaulting Clearing Members in an 
amount corresponding to each such non-defaulting Clearing Member's 
proportionate share of the variable amount of the Clearing Fund at the 
time such Partial Tear-Up is conducted.\29\
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    \29\ For the avoidance of doubt, the special charge would be 
distinct and separate from a Clearing Member's obligation to satisfy 
Clearing Fund assessments, and therefore, would not be subject to 
the aforementioned assessment cap in the amount of 200% of a 
Clearing Member's then-required contribution to the Clearing Fund.
---------------------------------------------------------------------------

    With respect to Partial Tear-Ups, new Rule 1111(h) would clarify 
that no action or omission by OCC pursuant to and in accordance Rule 
1111 shall constitute a default by OCC.
Expected Effect on and Management of Risk
    OCC believes that the proposed changes would reduce the nature and 
level of risk presented to OCC in three primary ways: (i) By providing 
greater certainty regarding what financial resources will be available 
to OCC after a proportionate charge is assessed; (ii) by providing 
additional tools by which to allocate credit losses in excess of OCC's 
available financial resources; and (iii) by enhancing OCC's ability to 
re-establish a matched book. First, OCC believes the imposition of a 
200% cap on OCC's assessment powers during any cooling-off period 
provides Clearing Members with greater certainty regarding their 
maximum liability with respect to the Clearing Fund during extreme 
stress events, which in turn, facilitates Clearing Members' management 
of their own risks, and to the extent applicable, regulatory capital 
considerations. Further, OCC believes that extending the window for 
Clearing Member withdrawal following a proportionate charge to be 
equivalent with the cooling-off period would afford a Clearing Member a 
more reasonable period in which to evaluate whether the withdrawal from 
clearing membership would be necessary to cap its liability for 
proportionate charges at 200% of its then-required Clearing Fund 
contributions. With this change, OCC believes the increased 
predictability would help it to more reliably understand the amount of 
Clearing Fund contributions that will likely be available to it after a 
proportionate charge is assessed. Second, the introduction of rules to 
allow for voluntary payments, Voluntary Tear-Ups and Partial Tear-Ups 
would provide OCC with three distinct tools that could be used to 
allocate any credit losses OCC may face in excess of collateral and 
other resources available to OCC. Finally, in the event that OCC 
believes its obligations and liabilities arising from remaining 
positions in the portfolio of a defaulted Clearing Member may exceed 
its remaining available financial resources, the proposed changes 
ultimately would enable OCC to extinguish those positions, thereby re-
establishing a matched book.
    The risks of a Partial Tear-Up are extremely remote; nonetheless, 
OCC believes that the express authority to conduct a Partial Tear-Up 
may be viewed as increasing Clearing Members' and customers' exposure 
to an extreme stress scenario. As explained above, the proposed Partial 
Tear-Up authority is consistent with regulatory requirements, as well 
as with the expectations of CCPs of various international 
organizations. OCC further believes that its proposed Partial Tear-Up 
authority strikes an appropriate balance between seeking to protect the 
interests of Clearing Members and customers and the need to have 
appropriate tools to stabilize a systemically important financial 
market utility and minimize the risk of disruption to the broader 
financial system. To address the potential impact of a Partial Tear-Up 
on Clearing Members and customers, OCC has proposed two tools that 
would enable it to equitably re-allocate the losses, costs and fees 
imposed upon holders of torn-up positions.
Consistency With the Clearing Supervision Act
    The stated purpose of the Clearing Supervision Act is to mitigate 
systemic risk in the financial system and promote financial stability 
by, among other

[[Page 3250]]

things, promoting uniform risk management standards for systemically 
important financial market utilities and strengthening the liquidity of 
systemically important financial market utilities.\30\ Section 
805(a)(2) of the Clearing Supervision Act \31\ also authorizes the 
Commission to prescribe risk management standards for the payment, 
clearing and settlement activities of designated clearing entities, 
like OCC, for which the Commission is the supervisory agency. Section 
805(b) of the Clearing Supervision Act \32\ states that the objectives 
and principles for risk management standards prescribed under Section 
805(a) shall be to:
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    \30\ 12 U.S.C. 5461(b).
    \31\ 12 U.S.C. 5464(a)(2).
    \32\ 12 U.S.C. 5464(b).
---------------------------------------------------------------------------

     Promote robust risk management;
     promote safety and soundness;
     reduce systemic risks; and
     support the stability of the broader financial system.
    The Commission has adopted risk management standards under Section 
805(a)(2) of the Clearing Supervision Act and the Act in furtherance of 
these objectives and principles, including those standards adopted 
pursuant to the Commission rules cited below.\33\ For the reasons set 
forth below, OCC believes that the proposed change is consistent with 
the risk management standards promulgated under Section 805(a) of the 
Clearing Supervision Act.\34\
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    \33\ 17 CFR 240.17Ad-22. See Securities Exchange Act Release 
Nos. 68080 (October 22, 2012), 77 FR 66220 (November 2, 2012) (S7-
08-11) (``Clearing Agency Standards''); 78961 (September 28, 2016), 
81 FR 70786 (October 13, 2016) (S7-03-14) (``Standards for Covered 
Clearing Agencies''). The Standards for Covered Clearing Agencies 
became effective on December 12, 2016. OCC is a ``covered clearing 
agency'' as defined in Rule 17Ad-22(a)(5) and therefore is subject 
to section (e) of Rule 17Ad-22.
    \34\ 12 U.S.C. 5464(b)(1) and (4).
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Recovery and Orderly Wind-Down
    In relevant part, Rule 17Ad-22(e)(3)(ii) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . plan[ ] for the recovery and 
orderly wind-down of the [CCA] necessitated by credit losses, liquidity 
shortfalls, losses from general business risk, or any other losses.'' 
\35\ As stated above, each of the proposed changes is designed to 
provide OCC with tools to address the risks OCC might confront in a 
recovery and orderly wind-down scenario.\36\ Consistent with the 
requirements of Rule 17Ad-22(e)(3)(ii), the proposed tools would enable 
OCC to better address the risks of liquidity shortfalls and credit 
losses resulting from a Clearing Member default or certain other loss 
events and, if necessary, to ultimately re-establish a matched book in 
a recovery or orderly wind-down scenario.\37\ In this context, the 
proposed changes serve as a critical component of OCC's recovery and 
orderly wind-down plan. As a result, in OCC's view, the proposed 
changes are consistent with the requirements of Rule 17Ad-22(e)(3)(ii) 
as to the recovery and orderly wind-down plan.\38\
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    \35\ 17 CFR 240.17Ad-22(e)(3)(ii).
    \36\ Indeed, the OCC's separately filed recovery and orderly 
wind-down plan identifies OCC's assessment powers, ability to call 
for voluntary payments, ability to call for Voluntary Tear-Ups and 
ability to impose Partial Tear-Ups among its ``Recovery Tools.'' OCC 
has filed a proposed rule change with the Commission in connection 
with this proposal. See SR-OCC-2017-021.
    \37\ 17 CFR 240.17Ad-22(e)(3)(ii).
    \38\ 17 CFR 240.17Ad-22(e)(3)(ii).
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Allocation of Credit Losses Above Available Resources
    In relevant part, Rule 17Ad-22(e)(4)(viii) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [a]ddress[ ] allocation of 
credit losses the [CCA] may face if its collateral and other resources 
are insufficient to fully cover its credit exposures . . .'' \39\ The 
proposed changes would provide OCC with three distinct tools that could 
be used to allocate any credit losses OCC may face in excess of 
collateral and other resources available to OCC. First, new Rule 1009 
would provide a framework by which OCC could receive voluntary payments 
in a circumstance where a Clearing Member has defaulted and OCC has 
determined that, notwithstanding the availability of any remaining 
resources under OCC Rules 707, 1001, 1104 through 1107, 2210 and 
2211,\40\ OCC may not have sufficient resources to satisfy its 
obligations and liabilities resulting from such default. Second, new 
Rule 1111 would establish a framework by which non-defaulting Clearing 
Members and non-defaulting customers of Clearing Members could be given 
an opportunity to participate in Voluntarily Tear-Ups in a circumstance 
where a Clearing Member has defaulted and OCC has determined that, 
notwithstanding the availability of any remaining resources under OCC 
Rules 707, 1001, 1104 through 1107, 2210 and 2211, OCC may not have 
sufficient resources to satisfy its obligations and liabilities 
resulting from such default. Finally, new Rule 1111 also would provide 
the Board with discretion to mandatorily tear-up Remaining Open 
Positions and Related Open Positions, in a circumstance where a 
Clearing Member has defaulted and OCC has determined that, 
notwithstanding the availability of any remaining resources under OCC 
Rules 707, 1001, 1104 through 1107, 2210 and 2211, OCC may not have 
sufficient resources to satisfy its obligations and liabilities 
resulting from such default.\41\ In OCC's view, each of these tools 
could be deployed by OCC, if necessary, to allocate credit losses in 
excess of the collateral and other resources available to OCC, in 
accordance with Rule 17Ad-22(e)(4)(viii).\42\
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    \39\ 17 CFR 240.17Ad-22(e)(v)(viii).
    \40\ Rule 707 addresses the treatment of funds in a Clearing 
Member's X-M accounts. Rule 1001 addresses the size of OCC's 
Clearing Fund and the amount of a Clearing Member's contribution. 
Rules 1104 through 1107 concern the treatment of the portfolio of a 
defaulted Clearing Member. Rules 2210 and 2211 concern the treatment 
of Stock Loan positions of a defaulted Clearing Member.
    \41\ Rule 1111(g), which would provide the Board authority to 
equitably re-allocate losses, costs and fees directly imposed as a 
result of a Partial Tear-Up among all non-defaulting Clearing 
Members through a special charge, would serve as a discretionary 
tool to redistribute the credit losses allocated through Partial 
Tear-Up.
    \42\ 17 CFR 240.17Ad-22(e)(v)(viii).
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Replenishment of Financial Resources Following a Default
    In relevant part, Rule 17Ad-22(e)(4)(ix) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [d]escrib[e] the [CCA's] 
process to replenish any financial resources it may use following a 
default or other event in which use of such resources is 
contemplated.'' \43\ OCC's Clearing Members have a standing obligation 
to replenish the Clearing Fund following any proportionate charge. The 
proposed changes would establish a rolling cooling-off period, 
triggered by the payment of a proportionate charge against the Clearing 
Fund, during which period the aggregate liability of a Clearing Member 
to replenish the Clearing Fund (inclusive of assessments) would be 200% 
of the Clearing Member's required contribution as of the time 
immediately preceding the triggering proportionate charge. Compared to 
the current requirement under which a Clearing Member may cap its 
liability to proportionate charges at an additional 100% of its then-
required contribution, a Clearing Member would instead be permitted to 
cap its liability for proportionate charges at an additional 200% of 
its then-required Clearing Fund contribution.
---------------------------------------------------------------------------

    \43\ 17 CFR 240.17Ad-22(e)(4)(ix).
---------------------------------------------------------------------------

    OCC believes that the proposed approach improves predictability for

[[Page 3251]]

OCC and for Clearing Members regarding the size of Clearing Fund 
contributions that are likely to be subject to assessments for 
proportionate charges. Additionally, replacing the five business day 
withdrawal period with the withdrawal period commensurate with the 
cooling-off period (which, as proposed would be a minimum of fifteen 
calendar days) would give Clearing Members a more reasonable period in 
which to meet the wind-down and termination requirements necessary to 
cap their liability. OCC believes that this would afford them greater 
certainty regarding their maximum liability with respect to the 
Clearing Fund during extreme stress events, which in turn, facilitates 
Clearing Members' management of their own risk management, and to the 
extent applicable, regulatory capital considerations. And OCC believes 
this increased predictability would also be beneficial to OCC by 
helping it to more reliably understand the amount of Clearing Fund 
contributions that will likely be available to it after a proportionate 
charge is assessed.\44\
---------------------------------------------------------------------------

    \44\ Under the existing approach, it is less certain from OCC's 
standpoint regarding whether Clearing Members would reasonably be 
able to cap their liability to proportionate charges within five 
business days.
---------------------------------------------------------------------------

    OCC believes that the relative certainty provided by the proposed 
cooling-off period and 200% cap on assessments ultimately could reduce 
the risks of successive or ``cascading'' defaults, in which the 
financial demands on remaining non-defaulting Clearing Members to 
continually replenish OCC's Clearing Fund (and similar guaranty funds 
at other CCPs to which such Clearing Members might belong) have the 
effect of further weakening such Clearing Members to the point of 
default. In this regard, the proposed changes are designed to provide 
OCC, Clearing Members and other stakeholders with sufficient time to 
manage the ongoing default(s) without further aggravating the extreme 
stresses facing market participants.
    OCC recognizes that the proposed changes would limit the maximum 
amount of Clearing Fund resources that could be available to OCC in an 
extreme stress scenario, which introduces the possibility, however 
remote, that the proposed 200% cap ultimately could be reached. If 
during any cooling-off period the amount of aggregate proportionate 
charges against the Clearing Fund approaches the 200% cap, the amount 
remaining in the Clearing Fund may no longer be sufficient to comply 
with the applicable minimum regulatory financial resources requirements 
in the CCAs. In any such event, OCC's existing authority under Rule 603 
would permit OCC to call on participants for additional initial margin, 
which could ensure that OCC's minimum financial resources remain in 
excess of applicable CCA requirements.\45\ OCC recognizes that the 
imposition of increased margin requirements could have an immediate 
pro-cyclical impact on participants (and consequential impacts on the 
broader financial system) that is potentially greater than the impact 
of replenishing the Clearing Fund. These risks would be limited to a 
specific extreme stress event and could be mitigated by certain 
factors. First, OCC, in coordination with its regulators, would 
carefully evaluate any potential increase in the context of then-
existing facts and circumstances. Second, during the cooling-off 
period, Clearing Members and their customers will have the opportunity 
to reduce or rebalance their respective portfolios in order to mitigate 
their exposures to stress losses and initial margin increases. Finally, 
since initial margin is not designed to be subject to mutualized loss, 
the risk of loss faced by Clearing Members for amounts posted as 
additional margin would be substantially less than for replenishments 
of the Clearing Fund.
---------------------------------------------------------------------------

    \45\ Rule 603 provides that ``[t]he Risk Committee may, from 
time to time, increase the amount of margin which may be required in 
respect of a cleared contract, open short position or exercised 
contract if, in its discretion, it determines that such increase is 
advisable for the protection of [OCC], the Clearing Members or the 
general public.''
---------------------------------------------------------------------------

    Given the products cleared by OCC and the composition of its 
clearing membership, OCC has determined that a minimum 15-calendar day 
cooling-off period, rolling up to a maximum of 20 calendar days, is 
likely to be a sufficient amount of time for OCC to manage the ongoing 
default(s) and take necessary steps in furtherance of stabilizing the 
clearing system. Further, through conversations with Clearing Members, 
OCC believes that the proposed cooling-off period is likely to be a 
sufficient amount for Clearing Members (and their customers) to orderly 
reduce or rebalance their positions, in an attempt to mitigate stress 
losses and exposure to potential initial margin increases as they 
navigate the stress event. Through conversations with Clearing Members, 
OCC also believes that the proposed cooling-off period is likely to be 
a sufficient amount for certain Clearing Members to orderly close-out 
their positions and transfer customer positions as they withdraw from 
clearing membership. OCC believes the proposed cooling-off period, 
coupled with the other proposed changes to OCC's assessment powers, is 
likely to provide Clearing Members with an adequate measure of 
stability and predictability as to the potential use of Clearing Fund 
resources, which OCC believes removes the existing incentive for 
Clearing Members to withdraw following a proportionate charge.\46\
---------------------------------------------------------------------------

    \46\ OCC initially considered a fixed 15-calendar day cooling-
off period; however, OCC concluded that a fixed 15-calendar day 
cooling-off period may increase the risks of successive or cascading 
Clearing Member defaults and may perversely incentivize Clearing 
Members to seek to withdraw from clearing membership. Through 
conversations with Clearing Members, OCC believes that these 
potentially disruptive consequences are mitigated by the proposed 
rolling cooling-off period.
---------------------------------------------------------------------------

    In light of the foregoing, OCC believes that the proposed changes 
would enhance and strengthen its process to replenish the Clearing Fund 
following a default or other event in which use of the Clearing Fund is 
contemplated, in accordance with Rule 17Ad-22(e)(4)(ix).\47\
---------------------------------------------------------------------------

    \47\ 17 CFR 240.17Ad-22(e)(4)(ix).
---------------------------------------------------------------------------

Replenishment of Liquid Resources
    In relevant part, Rule 17Ad-22(e)(7)(ix) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [d]escrib[e] the [CCA's] 
process to replenish any liquid resources that the clearing agency may 
employ during a stress event.'' \48\ Since the use any part of the cash 
portion of OCC's Clearing Fund would constitute a depletion of one of 
OCC's liquid resources, OCC's assessment power, discussed above, is the 
primary means of replenishing the Clearing Fund cash that OCC used to 
address the stress event. For the same reasons stated above, OCC 
believes that the proposed changes enhance and strengthen its process 
to replenish the Clearing Fund, as necessary, following a default or 
other stress event in which the Clearing Fund is used, and therefore, 
OCC views the proposed changes as consistent with Rule 17Ad-
22(e)(7)(ix).\49\
---------------------------------------------------------------------------

    \48\ 17 CFR 240.17Ad-22(e)(7)(ix).
    \49\ 17 CFR 240.17Ad-22(e)(7)(ix).
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Timely Action To Contain Losses
    In relevant part, Rule 17Ad-22(e)(13) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [e]nsure the [CCA] has the 
authority and operational capacity to take timely action to contain 
losses and liquidity demands and continue to meet its obligations . . 
.'' \50\ The proposed changes would provide OCC with the authority to 
call for Voluntary Tear-Ups and OCC's Board

[[Page 3252]]

with the discretion to impose Partial Tear-Ups, which would provide OCC 
with authority necessary to extinguish certain losses (and attendant 
liquidity demands) thereby potentially enabling OCC to continue to meet 
its remaining obligations to participants. As designed, Voluntary Tear-
Ups and Partial Tear-Ups would be initiated on a date sufficiently in 
advance of the exhaustion of OCC's financial resources such that OCC is 
expected to have adequate resources remaining to cover the amount it 
must pay to extinguish the positions of Clearing Members and customers 
without haircutting gains. Accordingly, OCC believes that its authority 
and capacity to conduct a Partial Tear-Up should be timely, relative to 
the adequacy of OCC's remaining financial resources. Finally, OCC 
believes it has the operational and systems capacity sufficient to 
support the proposed changes, and OCC's policies and procedures will be 
updated accordingly to reflect the existence of these new tools. As a 
result, OCC believes that the proposed changes conform to the relevant 
requirements in Rule 17Ad-22(e)(13).\51\
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    \50\ 17 CFR 240.17Ad-22(e)(13).
    \51\ 17 CFR 240.17Ad-22(e)(13).
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Public Disclosure of Key Aspects of Default Rules
    In relevant part, Rule 17Ad-22(e)(23)(i) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [p]ublicly disclos[e] all 
relevant rules and material procedures, including key aspects of its 
default rules and procedures.'' \52\ As stated above, each of the tools 
discussed herein are contemplated to be deployed by OCC if an extreme 
stress event has placed OCC into a recovery or orderly wind-down 
scenario, and therefore, the tools discussed herein constitute key 
aspects of OCC's default rules. By incorporating the proposed changes 
into OCC's Rules and By-Laws, as further supplemented by the discussion 
in OCC's public rule filing, OCC believes that proposed changes would 
conform to the relevant requirements in Rule 17Ad-22(e)(23)(i).\53\
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    \52\ 17 CFR 240.17Ad-22(e)(23)(i).
    \53\ 17 CFR 240.17Ad-22(e)(13).
---------------------------------------------------------------------------

Sufficient Information Regarding the Risks, Fees and Costs of Clearing
    In relevant part, Rule 17Ad-22(e)(23)(ii) requires that each CCA 
``establish, implement, maintain and enforce written policies and 
procedures reasonably designed to . . . [p]rovid[e] sufficient 
information to enable participants to identify and evaluate the risks, 
fees, and other material costs they incur by participating in the 
covered clearing agency.'' \54\ The proposed changes would clearly 
explain to Clearing Members and market participants that an extreme 
stress scenario could result in the use--and theoretically the 
exhaustion--of OCC's financial resources, inclusive of OCC's proposed 
assessment powers. Proposed changes to Section 6, Article VIII of OCC's 
By-Laws would explain Clearing Members' replenishment obligation and 
liability for assessments. The proposed changes also would clearly 
explain, through proposed Rules 1009 and 1111, that as OCC nears the 
exhaustion of its assessment powers, Clearing Members may be asked for 
voluntary payments and, if necessary, Clearing Members and customers 
may be asked to participate in a Voluntary Tear-Up and/or subject to a 
Partial Tear-Up. Proposed Rules 1009(b) and 1111(a)(ii) also would make 
clear that Clearing Members that made voluntary payments and Clearing 
Members and customers whose tendered positions were extinguished in the 
Voluntary Tear-Up would be prioritized in the distribution of any 
recovery from the defaulted Clearing Member(s). Proposed changes to 
Article VIII would clarify that the Clearing Fund contributions 
remaining after OCC has conducted a Voluntary Tear-Up or Partial Tear-
Up could be used to compensate the non-defaulting Clearing Members and 
non-defaulting customers for the losses, costs or fees imposed upon 
them as a result of such Voluntary Tear-Up or Partial Tear-Up. Proposed 
Rule 1111(g) would make clear that, following a Partial Tear-Up, OCC's 
Board may seek to equitably re-allocate losses, costs and fees directly 
imposed as a result of a Partial Tear-Up among all non-defaulting 
Clearing Members through a special charge. By incorporating the 
proposed changes into OCC's Rules and By-Laws, as further supplemented 
by the discussion in OCC's public rule filing, OCC believes that is has 
provided sufficient information to enable participants to identify and 
evaluate the risks, fees, and other material costs they could incur by 
participating OCC, consistent with the requirements in Rule 17Ad-
22(e)(23)(ii).\55\
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    \54\ 17 CFR 240.17Ad-22(e)(23)(ii).
    \55\ 17 CFR 240.17Ad-22(e)(23)(ii).
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III. Date of Effectiveness of the Advance Notice and Timing for 
Commission Action

    The proposed change may be implemented if the Commission does not 
object to the proposed change within 60 days of the later of (i) the 
date the proposed change was filed with the Commission or (ii) the date 
any additional information requested by the Commission is received. OCC 
shall not implement the proposed change if the Commission has any 
objection to the proposed change.
    The Commission may extend the period for review by an additional 60 
days if the proposed change raises novel or complex issues, subject to 
the Commission providing the clearing agency with prompt written notice 
of the extension. A proposed change may be implemented in less than 60 
days from the date the advance notice is filed, or the date further 
information requested by the Commission is received, if the Commission 
notifies the clearing agency in writing that it does not object to the 
proposed change and authorizes the clearing agency to implement the 
proposed change on an earlier date, subject to any conditions imposed 
by the Commission.
    OCC shall post notice on its website of proposed changes that are 
implemented.
    The proposal shall not take effect until all regulatory actions 
required with respect to the proposal are completed.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the advance 
notice is consistent with the Clearing Supervision Act. Comments may be 
submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-OCC-2017-809 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE, 
Washington, DC 20549.

All submissions should refer to File Number SR-OCC-2017-809. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements

[[Page 3253]]

with respect to the advance notice that are filed with the Commission, 
and all written communications relating to the advance notice between 
the Commission and any person, other than those that may be withheld 
from the public in accordance with the provisions of 5 U.S.C. 552, will 
be available for website viewing and printing in the Commission's 
Public Reference Room, 100 F Street NE, Washington, DC 20549 on 
official business days between the hours of 10:00 a.m. and 3:00 p.m. 
Copies of the filing also will be available for inspection and copying 
at the principal office of OCC and on OCC's website at https://www.theocc.com/components/docs/legal/rules_and_bylaws/sr_occ_17_809.pdf.
    All comments received will be posted without change. Persons 
submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make available publicly.
    All submissions should refer to File Number SR-OCC-2017-809 and 
should be submitted on or before February 13, 2018.

    By the Commission.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-01070 Filed 1-22-18; 8:45 am]
 BILLING CODE 8011-01-P



                                                3244                             Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices

                                                subparagraph (f)(6) of Rule 19b–4                         Paper Comments                                          SECURITIES AND EXCHANGE
                                                thereunder.10 In addition, Rule 19b–                                                                              COMMISSION
                                                4(f)(6) requires a self-regulatory                          • Send paper comments in triplicate
                                                organization to give the Commission                       to Secretary, Securities and Exchange
                                                                                                                                                                  [Release No. 34–82513; File No. SR–OCC–
                                                written notice of its intent to file the                  Commission, 100 F Street NE,
                                                                                                                                                                  2017–809]
                                                proposed rule change, along with a brief                  Washington, DC 20549–1090.
                                                description and text of the proposed                      All submissions should refer to File                    Self-Regulatory Organizations; The
                                                rule change, at least five business days                  Number CboeBZX–2018–003. This file                      Options Clearing Corporation; Notice
                                                prior to the date of filing of the                        number should be included on the                        of Filing of Advance Notice
                                                proposed rule change, or such shorter                     subject line if email is used. To help the              Concerning Enhanced and New Tools
                                                time as designated by the Commission.                     Commission process and review your                      for Recovery Scenarios
                                                The Exchange has satisfied this                           comments more efficiently, please use
                                                requirement.                                                                                                      January 17, 2018.
                                                                                                          only one method. The Commission will
                                                   In its filing, the Exchange requested                  post all comments on the Commission’s                      Pursuant to Section 806(e)(1) of Title
                                                that the Commission waive the 30-day                      internet website (http://www.sec.gov/                   VIII of the Dodd-Frank Wall Street
                                                operative delay in order to enable the                    rules/sro.shtml). Copies of the                         Reform and Consumer Protection Act,
                                                Exchange to immediately ensure                            submission, all subsequent                              entitled Payment, Clearing and
                                                consistent use of terms amongst the                       amendments, all written statements                      Settlement Supervision Act of 2010
                                                Exchange and its affiliates, thereby                      with respect to the proposed rule                       (‘‘Clearing Supervision Act’’) 1 and Rule
                                                reducing the potential for confusion                                                                              19b–4(n)(1)(i) under the Securities
                                                                                                          change that are filed with the
                                                amongst market data subscribers                                                                                   Exchange Act of 1934 (‘‘Act’’),2 notice is
                                                                                                          Commission, and all written
                                                regarding the type of User they may be                                                                            hereby given that on December 8, 2017,
                                                                                                          communications relating to the
                                                considered by the Exchange. The                                                                                   The Options Clearing Corporation
                                                                                                          proposed rule change between the                        (‘‘OCC’’) filed with the Securities and
                                                Commission believes that such waiver is                   Commission and any person, other than
                                                consistent with the protection of                                                                                 Exchange Commission (‘‘Commission’’)
                                                                                                          those that may be withheld from the                     an advance notice as described in Items
                                                investors and the public interest.
                                                                                                          public in accordance with the                           I, II and III below, which Items have
                                                Therefore, the Commission designates
                                                                                                          provisions of 5 U.S.C. 552, will be                     been prepared by OCC. The Commission
                                                the proposed rule change to be operative
                                                                                                          available for website viewing and                       is publishing this notice to solicit
                                                upon filing. For purposes only of
                                                                                                          printing in the Commission’s Public                     comments on the advance notice from
                                                waiving the 30-day operative delay, the
                                                Commission has also considered the                        Reference Room, 100 F Street NE,                        interested persons.
                                                proposed rule’s impact on efficiency,                     Washington, DC 20549 on official
                                                                                                          business days between the hours of                      I. Clearing Agency’s Statement of the
                                                competition, and capital formation.11                                                                             Terms of Substance of the Advance
                                                                                                          10:00 a.m. and 3:00 p.m. Copies of the
                                                   At any time within 60 days of the                      filing also will be available for                       Notice
                                                filing of the proposed rule change, the                   inspection and copying at the principal
                                                Commission summarily may                                                                                            This advance notice is filed in
                                                                                                          office of the Exchange. All comments                    connection with a proposed change to
                                                temporarily suspend such rule change if
                                                                                                          received will be posted without change.                 make certain revisions to OCC’s Rules
                                                it appears to the Commission that such
                                                                                                          Persons submitting comments are                         and By-Laws to enhance OCC’s existing
                                                action is: (i) Necessary or appropriate in
                                                                                                          cautioned that we do not redact or edit                 tools to address the risks of liquidity
                                                the public interest; (ii) for the protection
                                                of investors; or (iii) otherwise in                       personal identifying information from                   shortfalls and credit losses and to
                                                furtherance of the purposes of the Act.                   comment submissions. You should                         establish new tools by which OCC could
                                                If the Commission takes such action, the                  submit only information that you wish                   re-establish a matched book following a
                                                Commission shall institute proceedings                    to make available publicly. All                         default. Each of the tools proposed
                                                to determine whether the proposed rule                    submissions should refer to File                        herein is contemplated to be deployed
                                                should be approved or disapproved.                        Number CboeBZX–2018–003 and                             by OCC in an extreme stress event that
                                                                                                          should be submitted on or before                        has placed OCC into a recovery or
                                                IV. Solicitation of Comments                              February 13, 2018.                                      orderly wind-down scenario.
                                                  Interested persons are invited to                         For the Commission, by the Division of                  The proposed changes to OCC’s By-
                                                submit written data, views, and                           Trading and Markets, pursuant to delegated              Laws and Rules were submitted as
                                                arguments concerning the foregoing,                       authority.12                                            Exhibits 5A and 5B of the filing, and
                                                including whether the proposed rule                       Eduardo A. Aleman,                                      proposed changes to OCC’s Default
                                                change is consistent with the Act.                                                                                Management Policy were submitted as
                                                                                                          Assistant Secretary.
                                                Comments may be submitted by any of                                                                               confidential Exhibit 5C of the filing.3
                                                                                                          [FR Doc. 2018–01088 Filed 1–22–18; 8:45 am]
                                                the following methods:                                                                                            The proposed change is described in
                                                                                                          BILLING CODE 8011–01–P                                  detail in Item II below. All terms with
                                                Electronic Comments                                                                                               initial capitalization not defined herein
                                                                                                                                                                  have the same meaning as set forth in
                                                  • Use the Commission’s internet                                                                                 OCC’s By-Laws and Rules.4
                                                comment form (http://www.sec.gov/
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                                                rules/sro.shtml); or                                                                                                1 12U.S.C. 5465(e)(1).
                                                  • Send an email to rule-comments@                                                                                 2 17CFR 240.19b–4(n)(1)(i).
                                                sec.gov. Please include File Number SR–                                                                             3 OCC has filed a proposed rule change with the

                                                CboeBZX–2018–003 on the subject line.                                                                             Commission in connection with the proposed
                                                                                                                                                                  change. See SR–OCC–2017–017.
                                                                                                                                                                    4 OCC’s By-Laws and Rules can be found on
                                                  10 17   CFR 240.19b–4(f)(6).                                                                                    OCC’s public website: http://optionsclearing.com/
                                                  11 See   15 U.S.C. 78c(f).                                12 17   CFR 200.30–3(a)(12).                          about/publications/bylaws.jsp.



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                                                                                   Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices                                                  3245

                                                II. Clearing Agency’s Statement of the                         defined by Rule 17Ad–22(a)(5),9 to                     settlement processes, including by . . .
                                                Purpose of, and Statutory Basis for, the                       establish, implement, maintain and                     [a]ddressing allocation of credit losses
                                                Advance Notice                                                 enforce written policies and procedures                the [CCA] may face if its collateral and
                                                                                                               reasonably designed to: (1) Maintain a                 other resources are insufficient to fully
                                                  In its filing with the Commission,                           risk management framework including                    cover its credit exposures, including the
                                                OCC included statements concerning                             plans for recovery and orderly wind-                   repayment of any funds the [CCA] may
                                                the purpose of and basis for the advance                       down necessitated by credit losses,                    borrow from liquidity providers.’’ 11
                                                notice and discussed any comments it
                                                received on the advance notice. The text
                                                                                                               liquidity shortfalls, general business risk               • Rule 17Ad–22(e)(4)(ix) requires that
                                                                                                               losses or any other losses, (2) effectively            each CCA ‘‘establish, implement,
                                                of these statements may be examined at                         identify, measure, monitor and manage
                                                the places specified in Item IV below.                                                                                maintain and enforce written policies
                                                                                                               its credit exposures to participants and               and procedures reasonably designed to
                                                OCC has prepared summaries, set forth                          those arising from its payment, clearing
                                                in sections A and B below, of the most                                                                                . . . [e]ffectively identify, measure,
                                                                                                               and settlement processes, including by                 monitor, and manage its credit
                                                significant aspects of these statements.                       addressing the allocation of credit losses             exposures to participants and those
                                                (A) Clearing Agency’s Statement on                             a CCA might face if its collateral and                 arising from its payment, clearing, and
                                                Comments on the Advance Notice                                 other resources are insufficient to fully              settlement processes, including by . . .
                                                Received From Members, Participants or                         cover its credit exposures, (3) effectively            [d]escribing the [CCA’s] process to
                                                Others                                                         identify, measure, monitor and manage                  replenish any financial resources it may
                                                                                                               credit exposures, including by                         use following a default or other event in
                                                  Written comments were not and are                            describing the process to replenish any                which use of such resources is
                                                not intended to be solicited with respect                      financial resource that a CCA may use                  contemplated.’’ 12
                                                to the proposed rule change and none                           following a default event or other event
                                                have been received. OCC will notify the                                                                                  • Rule 17Ad–22(e)(7)(ix) requires that
                                                                                                               in which use of such resource is                       each CCA ‘‘establish, implement,
                                                Commission of any written comments                             contemplated, (4) effectively identify,
                                                received by OCC.                                                                                                      maintain and enforce written policies
                                                                                                               measure, monitor and manage liquidity                  and procedures reasonably designed to
                                                (B) Advance Notices Filed Pursuant to                          risks that arises or is borne by the CCA               . . . [e]ffectively measure, monitor, and
                                                Section 806(e) of the Payment, Clearing,                       by, at a minimum, describing the
                                                                                                                                                                      manage the liquidity risk that arises in
                                                and Settlement Supervision Act                                 process for replenishing any liquid
                                                                                                                                                                      or is borne by the [CCA], including
                                                                                                               resource that a CCA may employ during
                                                Purpose of the Proposed Change                                                                                        measuring, monitoring, and managing
                                                                                                               a stress event, (5) ensure it has the
                                                                                                                                                                      its settlement and funding flows on an
                                                Background                                                     authority and operational capacity to
                                                                                                                                                                      ongoing and timely basis, and its use of
                                                                                                               take timely action to contain losses and
                                                   The purpose of this proposed rule                                                                                  intraday liquidity by, at a minimum,
                                                                                                               liquidity demands and continue to meet
                                                change is to make certain revisions to                                                                                doing the following...[d]escribing the
                                                                                                               its obligations, (6) publicly disclose
                                                OCC’s Rules and By-Laws Laws that are                                                                                 [CCA’s] process to replenish any liquid
                                                                                                               relevant rules and material procedures,
                                                designed to enhance OCC’s existing                                                                                    resources that the clearing agency may
                                                                                                               including key aspects of its default rules
                                                tools to address the risks of liquidity                        and procedures, and (7) provide                        employ during a stress event.’’ 13
                                                shortfalls and credit losses and to                            sufficient information to enable                          • Rule 17Ad–22(e)(13) requires that
                                                establish tools by which OCC could re-                         participants to identify and evaluate the              each CCA ‘‘establish, implement,
                                                establish a matched book following a                           risks, fees, and other material costs they             maintain and enforce written policies
                                                default. Each of the tools proposed                            incur by participating in the CCA. The                 and procedures reasonably designed to
                                                herein is contemplated to be deployed                          relevant portions of each of these new                 . . . [e]nsure the covered clearing
                                                by OCC in an extreme stress event that                         requirements is restated below:                        agency has the authority and
                                                has placed OCC into a recovery or                                 • Rule 17Ad–22(e)(3)(ii) requires that              operational capacity to take timely
                                                orderly wind-down scenario. Each of                            each CCA ‘‘establish, implement,                       action to contain losses and liquidity
                                                the proposed revisions also is designed                        maintain and enforce written policies                  demands and continue to meet its
                                                to further OCC’s compliance, in whole                          and procedures reasonably designed to                  obligations . . .’’ 14
                                                or in part, with the provisions of the                         . . . [m]aintain a sound risk                             • Rule 17Ad–22(e)(23)(i) requires that
                                                Commission’s rules identified                                  management framework for                               each CCA ‘‘establish, implement,
                                                immediately below.                                             comprehensively managing legal, credit,                maintain and enforce written policies
                                                   On September 28, 2016, the                                  liquidity, operational, general business,              and procedures reasonably designed to
                                                Commission adopted amendments to                               investment, custody, and other risks                   . . . [p]ublicly disclos[e] all relevant
                                                Rule 17Ad–22 5 and added new Rules                             that arise in or are borne by the [CCA],               rules and material procedures,
                                                17Ad–22(e)(3)(ii), (e)(4)(viii), (e)(4)(ix),                   which . . . [i]ncludes plans for the                   including key aspects of its default rules
                                                (e)(7)(ix), (e)(13), (e)(23)(i) and                            recovery and orderly wind-down of the                  and procedures.’’ 15
                                                (e)(23)(ii) 6 pursuant to Section 17A of                       [CCA] necessitated by credit losses,                      • Rule 17Ad–22(e)(23)(ii) requires
                                                the Securities Exchange Act of 1934 7                          liquidity shortfalls, losses from general              that each CCA ‘‘establish, implement,
                                                and the Payment, Clearing, and                                 business risk, or any other losses.’’ 10               maintain and enforce written policies
                                                Settlement Supervision Act of 2010                                • Rule 17Ad–22(e)(4)(viii) requires                 and procedures reasonably designed to
                                                (‘‘Payment, Clearing and Settlement                            that each CCA ‘‘establish, implement,                  . . . [p]rovid[e] sufficient information to
                                                Supervision Act’’).8 In relevant part,                         maintain and enforce written policies                  enable participants to identify and
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                                                these new rules collectively require a                         and procedures reasonably designed to                  evaluate the risks, fees, and other
                                                covered clearing agency (‘‘CCA’’), as                          . . . [e]ffectively identify, measure,                 material costs they incur by
                                                                                                               monitor, and manage its credit
                                                  5 17  CFR 240.17Ad–22.                                       exposures to participants and those                      11 17 CFR 240.17Ad–22(e)(v)(viii).
                                                  6 17  CFR 240.17Ad–22(e)(3)(ii), (e)(4)(viii),               arising from its payment, clearing, and                  12 17 CFR 240.17Ad–22(e)(4)(ix).
                                                (e)(4)(ix), (e)(7)(ix), (e)(13), (e)(23)(i) and (e)(23)(ii).                                                            13 17 CFR 240.17Ad–22(e)(7)(ix).
                                                   7 15 U.S.C. 78q–1.                                           9 17   CFR 240.17Ad–22(a)(5).                           14 17 CFR 240.17Ad–22(e)(13).
                                                   8 12 U.S.C. 5461 et seq.                                     10 17   CFR 240.17Ad–22(e)(3)(ii).                      15 17 CFR 240.17Ad–22(e)(23)(i).




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                                                3246                           Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices

                                                participating in the covered clearing                    obligations and liabilities resulting from             amount is paid out of its Clearing Fund
                                                agency.’’ 16                                             such default. Rule 1009 also would                     contribution (whether by proportionate
                                                   OCC meets the definition of a CCA                     establish that OCC would prioritize                    charge or otherwise).18 In this regard, a
                                                and is therefore subject to the                          compensation of Clearing Members that                  Clearing Member’s obligation to
                                                requirements of the CCA rules,                           made voluntary payments from any                       replenish the Clearing Fund is not
                                                including new Rules 17Ad–22(e)(3)(ii),                   amounts recovered from the defaulted                   currently subject to any pre-determined
                                                (e)(4)(viii), (e)(4)(ix), (e)(7)(ix), (e)(13),           Clearing Members.                                      limit. Notwithstanding the foregoing, a
                                                (e)(23)(i) and (e)(23)(ii).17                               (3) Adopt a new Rule 1111 that would                Clearing Member can limit the amount
                                                Proposed Changes                                         provide authority to:                                  of its liability for replenishing the
                                                                                                            (a) Allow OCC to call for voluntary                 Clearing Fund (at an additional 100% of
                                                Summary of Proposed Changes                              tear-ups (‘‘Voluntary Tear-Up,’’ as                    the amount of its then-required Clearing
                                                   In order to enhance OCC’s existing                    defined below) of non-defaulting                       Fund contribution) by winding-down its
                                                tools to address the risks of liquidity                  Clearing Member and/or customer                        clearing activities and terminating its
                                                shortfalls and credit losses and to                      positions at any time following the                    status as a Clearing Member. Any
                                                establish new tools by which OCC could                   suspension or default of a Clearing                    Clearing Member seeking to so limit its
                                                re-establish a matched book following a                  Member, with the scope of any such                     liability for replenishing the Clearing
                                                default, OCC is proposing to make the                    Voluntary Tear-Ups being determined                    Fund must: (i) Notify OCC in writing
                                                following revisions to its Rules and By-                 by the Risk Committee of OCC’s Board                   not later than the fifth business day after
                                                Laws:                                                    (‘‘Risk Committee’’);                                  the proportionate charge that it is
                                                   (1) Revise the existing assessment                       (b) Allow OCC’s Board to vote to tear-              terminating its status as a Clearing
                                                powers in Section 6 of Article VIII of                   up the ‘‘Remaining Open Positions’’                    Member, (ii) not initiate any opening
                                                OCC’s By-Laws, specifically to:                          (defined below) of a defaulted Clearing                purchase or opening writing transaction,
                                                   (a) Establish a rolling ‘‘cooling-off                 Member, as well as any ‘‘Related Open                  and, if the Clearing Member is a Market
                                                period’’ that would be triggered by the                  Positions’’ (defined below) in a                       Loan Clearing Member or a Hedge
                                                payment of a proportionate charge                        circumstance where OCC has attempted                   Clearing Member, not initiate any Stock
                                                against the Clearing Fund (‘‘triggering                  one or more auctions of such defaulted                 Loan transaction, through any of its
                                                proportionate charge’’), during which                    Clearing Member’s remaining open                       accounts, and (iii) close out or transfer
                                                period the aggregate liability of a                      positions and OCC has determined that                  all of its open positions as promptly as
                                                Clearing Member to replenish the                         it may not have sufficient resources to                practicable after giving notice to OCC.
                                                Clearing Fund (inclusive of                              satisfy its obligations and liabilities                Thus, withdrawal from clearing
                                                assessments) would be 200% of the                        resulting from such default with the                   membership is the only means by which
                                                Clearing Member’s required                               scope of any such tear-up (‘‘Partial Tear-             a Clearing Member currently can limit
                                                contribution as of the time immediately                  Up’’) being determined by the Risk                     its liability for replenishing the Clearing
                                                preceding the triggering proportionate                   Committee; and                                         Fund.
                                                charge;                                                     (c) Allow OCC’s Board to vote to re-                b. Proposed Changes to Assessment
                                                   (b) Clarify that a Clearing Member that               allocate losses, costs and fees imposed                Powers
                                                chooses to terminate its membership                      upon holders of positions extinguished
                                                status during a cooling-off period will                                                                            OCC proposes to amend Section 6 of
                                                                                                         in a Partial Tear-Up through a special
                                                not be liable for replenishment of the                                                                          Article VIII of OCC’s By-Laws to make
                                                                                                         charge levied against remaining non-
                                                Clearing Fund immediately following                                                                             three primary modifications regarding
                                                                                                         defaulting Clearing Members.
                                                the expiration of such cooling-off                                                                              its existing authority to assess
                                                                                                            (4) Revise the descriptions and
                                                period, provided that the withdrawing                                                                           proportionate charges against Clearing
                                                                                                         authorizations in Article VIII of OCC’s
                                                Clearing Member satisfies enumerated                                                                            Members’ contributions to the Clearing
                                                                                                         By-Laws concerning the use of the
                                                criteria, including providing notice of                                                                         Fund. First, the proposal introduces an
                                                                                                         Clearing Fund to reflect the discretion of
                                                such termination by no later than the                                                                           automatic minimum fifteen calendar
                                                                                                         OCC to use remaining Clearing Fund
                                                end of the cooling-off period and by                                                                            day ‘‘cooling-off’’ period that begins
                                                                                                         contributions to re-allocate losses
                                                closing-out and/or transferring of all its               imposed on non-defaulting Clearing                        18 Under Article VIII, Section 6 of OCC’s By-Laws,
                                                open positions with OCC by no later                      Members and customers from a                           OCC currently has authority to assess proportionate
                                                than the last day of the cooling-off                     Voluntary Tear-Up or a mandatory tear-                 charges against Clearing Members’ contributions to
                                                period; and                                              up (‘‘Partial Tear-Up,’’ as defined                    the Clearing Fund in certain enumerated situations.
                                                   (c) Delineate between the obligation of               below).                                                For example, Section 6 generally provides that if
                                                a Clearing Member to replenish its                                                                              the conditions regarding a Clearing Member default
                                                                                                         Discussion of Proposed Changes                         specified in subparagraphs (a)(i) through (vi) of
                                                contributions to the Clearing Fund and                                                                          Article VIII, Section 5 of OCC’s By-Laws are
                                                its obligations to meet additional                         Each of the proposed revisions to                    satisfied, OCC will make good resulting losses or
                                                ‘‘assessments’’ that may be levied                       OCC’s Rules and By-Laws is described                   expenses that are suffered by OCC by applying the
                                                following a proportionate charge to the                                                                         defaulting Clearing Member’s Clearing Fund
                                                                                                         in more detail in the following sub-                   contribution after first applying other funds
                                                Clearing Fund.                                           sections:                                              available to OCC in the accounts of the Clearing
                                                   (2) Adopt a new Rule 1009 that would                                                                         Member. If the sum of the obligations, however,
                                                provide OCC with discretionary                           1. Proposed Changes to OCC’s                           exceeds the total Clearing Fund contribution and
                                                authority to call for voluntary payments                 Assessment Powers                                      other funds of the defaulting Clearing Member
                                                                                                                                                                available to OCC, then OCC will charge the amount
                                                from non-defaulting Clearing Members                     a. Current Assessment Powers                           of the remaining deficiency on a proportionate basis
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                                                in a circumstance where one or more                                                                             against all non-defaulting Clearing Members’
                                                Clearing Members has already defaulted                     OCC’s current assessment powers are                  required contributions to the Clearing Fund at the
                                                and OCC has determined that it may not                   described in Section 6 of Article VIII of              time. Section 5(b) of Article VIII of OCC’s By-Laws
                                                have sufficient resources to satisfy its                 OCC’s By-Laws. Section 6 establishes a                 similarly provides for proportionate charges against
                                                                                                         general requirement for each Clearing                  Clearing Members’ contributions to the Clearing
                                                                                                                                                                Fund when certain conditions are met that involve
                                                  16 17  CFR 240.17Ad–22(e)(23)(ii).                     Member to promptly make good any                       a failure by a bank or a securities or commodities
                                                  17 17  CFR 240.17Ad–22(e)(3)(ii), (e)(4)(viii),        deficiency in its required contribution                clearing organization to perform obligations to OCC
                                                (e)(4)(ix) and (e)(7)(ix).                               to the Clearing Fund whenever an                       when they are due.



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                                                                              Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices                                             3247

                                                when a proportionate charge is assessed                 period, (ii) not initiate any opening                  Under new Rule 1009, OCC will initiate
                                                by OCC against Clearing Members’                        purchase or opening writing transaction,               a call for voluntary payments by issuing
                                                Clearing Fund contributions. While the                  and, if the Clearing Member is a Market                a ‘‘Voluntary Payment Notice’’ inviting
                                                cooling-off period will continue for a                  Loan Clearing Member or a Hedge                        all non-defaulting Clearing Members to
                                                minimum of fifteen consecutive                          Clearing Member, not initiate any Stock                make payments to the Clearing Fund in
                                                calendar days, if one or more of the                    Loan transaction, through any of its                   addition to any amounts they are
                                                events described in clauses (i) through                 accounts, and (iii) close-out or transfer              otherwise required to contribute
                                                (iv) of Article VIII, Section 5(a) of OCC’s             all of its open positions by no later than             pursuant to Rule 1001. The Voluntary
                                                By-Laws occur(s) during that fifteen                    the last day of the cooling-off period. If             Payment Notice would specify the terms
                                                calendar day period and result in one or                a Clearing Member fails to satisfy all of
                                                                                                                                                               applicable to any voluntary payment,
                                                more proportionate charges against the                  these conditions by the end of a given
                                                                                                                                                               including but not limited to, that any
                                                Clearing Fund, the cooling-off period                   cooling-off period, it would not have
                                                shall be extended through either (i) the                completed all of the requirements                      voluntary payment may not be
                                                fifteenth calendar day from the date of                 necessary to terminate its status as a                 withdrawn once made, that no Clearing
                                                the most recent proportionate charge                    Clearing Member under Article VIII,                    Member shall be obligated to make a
                                                resulting from the subsequent event, or                 Section 6 of OCC’s By-Laws and                         voluntary payment and that OCC shall
                                                (ii) the twentieth day from the date of                 therefore it would remain subject to the               retain full discretion to accept or reject
                                                the proportionate charge that initiated                 obligation to replenish the Clearing                   any voluntary payment. Rule 1009
                                                the cooling-off period, whichever is                    Fund after the end of the cooling-off                  specifies that if OCC subsequently
                                                sooner.                                                 period.                                                recovers from the defaulted Clearing
                                                   During a cooling-off period, each                       Third, the proposal would clarify the               Member or the estate(s) of the defaulted
                                                Clearing Member would have its                          distinction between ‘‘replenishment’’ of               Clearing Member(s), OCC would seek to
                                                aggregate liability to replenish the                    the Clearing Fund and a Clearing                       compensate first from such recovery all
                                                Clearing Fund capped at 200% of the                     Member’s obligation to answer                          non-defaulting Clearing Members that
                                                Clearing Member’s then-required                         ‘‘assessments.’’ In this context, the term             made voluntary payments (and if the
                                                contribution to the Clearing Fund. Once                 ‘‘replenish’’ (and its variations) shall to            amount recovered from the defaulted
                                                the cooling-off period ends each                        refer to a Clearing Member’s standing                  Clearing Member(s) is less than the
                                                remaining Clearing Member would be                      duty, following any proportionate                      aggregate amount of voluntary
                                                required to replenish the Clearing Fund                 charge against the Clearing Fund, to                   payments, non-defaulting Clearing
                                                in the amount necessary to meet its                     return its Clearing Fund contribution to
                                                                                                                                                               Members that made voluntary payments
                                                then-required contribution. Once the                    the amount required from such Clearing
                                                                                                        Member for the month in question.20                    each would receive a percentage of the
                                                cooling-off period ends, any remaining
                                                                                                        The term ‘‘assessment’’ (and its                       recovery that corresponds to that
                                                losses or expenses suffered by OCC as
                                                                                                        variations) shall refer to the amount,                 Clearing Member’s percentage of the
                                                a result of any event described in
                                                clauses (i) through (iv) of Article VIII,               during any cooling-off period, that a                  total amount of voluntary payments
                                                Section 5(a) of OCC’s By-Laws that                      Clearing Member would be required to                   received).
                                                occurred during such cooling-off period                 contribute to the Clearing Fund in                     Proposed Addition of Ability To
                                                could not be charged against the                        excess of the amount of the Clearing                   Conduct Voluntary Tear-Ups
                                                amounts Clearing Members have                           Member’s pre-funded required Clearing
                                                contributed to replenish the Clearing                   Fund contribution.                                        OCC proposes to add new Rule 1111,
                                                Fund upon the expiration of the                         Proposed Addition of Ability To                        which, in relevant part, will establish a
                                                cooling-off period.19                                   Request Voluntary Payments                             framework by which non-defaulting
                                                   Second, in connection with the                                                                              Clearing Members and non-defaulting
                                                cooling-off period, the proposal would                     OCC proposes to add new Rule 1009,
                                                                                                                                                               customers of Clearing Members could be
                                                extend the time frame within which a                    which will provide a framework by
                                                                                                        which OCC could receive voluntary                      given an opportunity to voluntarily
                                                Clearing Member may provide a                                                                                  extinguish (i.e., voluntarily tear-up)
                                                termination notice to OCC to avoid                      payments in a circumstance where a
                                                                                                        Clearing Member has defaulted and                      their open positions at OCC in a
                                                liability for replenishment of the                                                                             circumstance where a Clearing Member
                                                Clearing Fund after the cooling-off                     OCC has determined that,
                                                                                                        notwithstanding the availability of any                has defaulted and OCC has determined
                                                period and would modify the                                                                                    that, notwithstanding the availability of
                                                obligations of such a terminating                       remaining resources under OCC Rules
                                                                                                        707, 1001, 1104 through 1107, 2210 and                 any remaining resources under OCC
                                                Clearing Member for closing-out and
                                                                                                        2211,21 OCC may not have sufficient                    Rules 707, 1001, 1104 through 1107,
                                                transferring its remaining open
                                                positions. Specifically, to effectively                 resources to satisfy its obligations and               2210 and 2211, OCC may not have
                                                terminate its status as a Clearing                      liabilities resulting from such default.               sufficient resources to satisfy its
                                                Member and not be liable for                                                                                   obligations and liabilities resulting from
                                                                                                           20 This assumes that the proportionate charge
                                                replenishing the Clearing Fund after the                                                                       such default.
                                                                                                        resulted in the Clearing Member’s actual Clearing
                                                cooling-off period, a Clearing Member                   Fund contribution dropping below the amount of            While Risk Committee approval is not
                                                would be required to: (i) Notify OCC in                 its required contribution (i.e., that the Clearing     needed to commence a voluntary tear-
                                                writing of its intent to terminate not                  Member did not have excess above its required
                                                                                                        contribution that was sufficient to cover the amount
                                                                                                                                                               up, the Risk Committee would be
                                                later than the last day of the cooling-off              of the proportionate charge allocated to such          responsible for determining the
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                                                                                                        Clearing Member).                                      appropriate scope of each voluntary
                                                  19 After a cooling-off period has ended, the             21 Rule 707 addresses the treatment of funds in a
                                                                                                                                                               tear-up. To ensure OCC retains
                                                occurrence of any event described in clauses (i)        Clearing Member’s X–M accounts. Rule 1001
                                                through (iv) of Article VIII, Section 5(a) of OCC’s     addresses the size of OCC’s Clearing Fund and the      sufficient flexibility to effectively
                                                By-Laws that results in a proportionate charge          amount of a Clearing Member’s contribution. Rules      deploy this tool in an extreme stress
                                                against the Clearing Fund would trigger a new           1104 through 1107 concern the treatment of the         event, proposed Rule 1111(c) is drafted
                                                cooling off period, and thusly, a cap of 200% of        portfolio of a defaulted Clearing Member. Rules
                                                each Clearing Member’s then-required contribution       2210 and 2211 concern the treatment of Stock Loan
                                                                                                                                                               to provide the Risk Committee with
                                                would again apply.                                      positions of a defaulted Clearing Member.              discretion to determine the appropriate


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                                                3248                            Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices

                                                scope of each voluntary tear-up.22 New                         In OCC’s proposed tear-up process,                  Proposed Addition of Ability To
                                                Rule 1111(c) also would impose                              the holders of torn-up positions would                 Conduct Partial Tear-Ups
                                                standards designed to circumscribe the                      be assigned a Tear-Up Price and OCC                       OCC proposes to add new Rule 1111,
                                                Risk Committee’s discretion, requiring                      would draw on its remaining financial                  which, in relevant part, will provide the
                                                that any determination regarding the                        resources in order to extinguish the                   Board with discretion to extinguish the
                                                scope of a voluntary tear-up shall (i) be                   torn-up positions at the assigned Tear-                remaining open positions of any
                                                based on then-existing facts and                            Up Price without forcing a reduction in                defaulted Clearing Member or customer
                                                circumstances, (ii) be in furtherance of                    the amount unpaid gains on such                        of such defaulted Clearing Member(s)
                                                the integrity of OCC and the stability of                   positions. The proposed changes would                  (such positions, ‘‘Remaining Open
                                                the financial system, and (iii) take into                   provide OCC with two separate and                      Positions’’), as well as any related open
                                                consideration the legitimate interests of                   non-exclusive means of equitably re-                   positions as necessary to mitigate
                                                Clearing Members and market                                 allocating the losses, costs or expenses               further disruptions to the markets
                                                participants.                                               imposed upon the holders of torn-up                    affected by the Remaining Open
                                                   Once the Risk Committee has                              positions as a result of the tear-up(s).               Positions (such positions, ‘‘Related
                                                determined the scope of the Voluntary                       First, the proposed changes to Article                 Open Positions’’), in a circumstance
                                                Tear-Up, OCC will initiate the call for                     VIII would provide OCC discretion to                   where a Clearing Member has defaulted
                                                voluntary tear-ups by issuing a                             use remaining Clearing Fund                            and OCC has determined that,
                                                ‘‘Voluntary Tear-Up Notice.’’ The                           contributions to re-allocate losses                    notwithstanding the availability of any
                                                Voluntary Tear-Up Notice shall inform                       imposed on non-defaulting Clearing                     remaining resources under OCC Rules
                                                all non-defaulting Clearing Members of                      Members and customers from such tear-                  707, 1001, 1104 through 1107, 2210 and
                                                the opportunity to participate in a                         up(s). Second, Rule 1111(a) would                      2211, OCC may not have sufficient
                                                Voluntary Tear-Up.23 The Voluntary                          provide that if OCC subsequently                       resources to satisfy its obligations and
                                                Tear-Up Notice would specify the terms                      recovers from the defaulted Clearing                   liabilities resulting from such default
                                                applicable to any voluntary tear-up,                        Member or the estate(s) of the defaulted               (such tear-ups hereinafter collectively
                                                including but not limited to, that no                       Clearing Member(s) and the amount of                   referred to as ‘‘Partial Tear-Ups’’). Like
                                                Clearing Member or customers of a                           such recovery exceeds the amount OCC                   the determination for Voluntary Tear-
                                                Clearing Member shall be obligated to                       received in voluntary payments, then                   Ups, the Risk Committee shall
                                                participate in a voluntary tear-up and                      non-defaulting Clearing Members and                    determine the appropriate scope of each
                                                that OCC shall retain full discretion to                    non-defaulting customers that                          Partial Tear-Up and such determination
                                                accept or reject any voluntary tear-up.                     voluntarily tore-up open positions and                 shall (i) be based on then-existing facts
                                                   OCC is not proposing a tear-up                           incurred losses from such tear-ups                     and circumstances, (ii) be in furtherance
                                                process that would require the                              would be repaid from the amount of the                 of the integrity of OCC and the stability
                                                imposition of ‘‘gains haircutting’’ (i.e.,                  recovery in excess of the amount OCC                   of the financial system, and (iii) take
                                                the reduction of unpaid gains) on a                         received in voluntary payments.26 If the               into consideration the legitimate
                                                portion of OCC’s cleared contracts.24                       amount recovered is less than the                      interests of Clearing Members and
                                                Instead, OCC has determined that its                        aggregate amount of Voluntary Tear-Up,                 market participants. Once the Risk
                                                tear-up process—for both Voluntary                          each non-defaulting Clearing Member                    Committee has determined the scope of
                                                Tear-Ups as well as Partial Tear-Ups—                       and non-defaulting customer that                       the Partial Tear-Up, OCC will initiate
                                                should be initiated on a date sufficiently                  incurred losses from voluntarily torn-up               the Partial Tear-Up process by issuing a
                                                in advance of the exhaustion of OCC’s                       positions would be repaid in an amount                 ‘‘Partial Tear-Up Notice.’’ The Partial
                                                financial resources such that OCC                           proportionate to the percentage of its                 Tear-Up Notice shall (i) identify the
                                                would be expected to have adequate                          total amount of losses, costs and fees                 Remaining Open Positions and Related
                                                remaining resources to cover the                            imposed on Clearing Members or                         Open Positions designated for tear-up,
                                                amount it must pay to extinguish the                        customers as a result of the Voluntary                 (ii) identify the open positions of non-
                                                positions of Clearing Members and                           Tear-Ups.                                              defaulting Clearing Members and non-
                                                customers without haircutting gains.25                                                                             defaulting customers that will be subject
                                                                                                               With respect to Voluntary Tear-Ups,                 to Partial Tear-Up (such positions,
                                                   22 Notwithstanding the discretion that would be          new Rule 1111(h) would clarify that no                 ‘‘Tear-Up Positions’’), (iii) specify the
                                                afforded by the text of proposed Rule 1111(c), OCC          action or omission by OCC pursuant to                  termination price (‘‘Partial Tear-Up
                                                anticipates that the scope of voluntary tear-ups            and in accordance Rule 1111 shall
                                                likely would be dictated by the cleared contracts                                                                  Price’’) for each position to be torn-up,
                                                remaining in the portfolio(s) of the defaulted              constitute a default by OCC.                           and (iv) list the date and time as of
                                                Clearing Member(s).                                                                                                which the Partial Tear-Up will occur.27
                                                   23 Since OCC does not know the identities of
                                                                                                            monitoring its remaining financial resources against   With regard to the date and time of a
                                                Clearing Members’ customers, OCC would depend               the potential exposure of the remaining
                                                on each Clearing Member to notify its customers             unauctioned positions from the portfolio(s) of the
                                                                                                                                                                   Partial Tear-Up, Rule 1111(d) specifies
                                                with positions in scope of the Voluntary Tear-Up            defaulted Clearing Member(s).                          that the Risk Committee shall set the
                                                of the opportunity to participate in such tear-up.            26 In order to effect re-allocation of the losses,   date and time. With regard to the Partial
                                                   24 In general, forced gains haircutting is a tool that
                                                                                                            costs or expenses imposed upon the holders of torn-    Tear-Up Price, OCC anticipates that it is
                                                can be more easily applied to products whose gains          up positions, OCC expects that after it has
                                                are settled at least daily, like futures through an
                                                                                                                                                                   likely to use the last established end-of-
                                                                                                            completed its tear-up process and re-established a
                                                exchange of variation margin, and by central                matched book, holders of both voluntarily torn-up      day settlement price, in accordance with
                                                counterparties with comparatively large daily               and mandatorily torn-up positions would be             its existing practices concerning pricing
                                                settlement flows. Listed options, which constitute          provided with a limited opportunity to re-establish    and valuation. However, given that it is
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                                                the vast majority of the contracts cleared by OCC,          positions in the contracts that were voluntarily or
                                                do not have daily settlement flows and any attempt
                                                                                                                                                                   not possible to know in advance the
                                                                                                            mandatorily extinguished. After the expiration of
                                                to reduce the ‘‘unrealized gains’’ of a listed options      such period, OCC would seek to collect the             precise circumstances that would cause
                                                contract would require the reduction of the option          information on the losses, costs or expenses that
                                                premium that is embedded within the required                had been imposed on the holders of torn-up               27 Since OCC does not know the identities of
                                                margin (such a process would effectively require            positions. Based on the information collected, OCC     Clearing Members’ customers, OCC would depend
                                                haircutting the listed option’s initial margin).            would determine whether it can reasonably              on each Clearing Member to notify its customers
                                                   25 OCC anticipates that it would determine the           determine the losses, costs and expenses               with positions in scope of the Partial Tear-Up of the
                                                date on which to initiate Partial Tear-Ups by               sufficiently to re-allocate such amounts.              possibility of tear-up.



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                                                                               Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices                                            3249

                                                OCC to conduct a tear-up, Rule 1111(f)                    non-defaulted customers of defaulted                  considerations. Further, OCC believes
                                                has been drafted to allow OCC to                          Clearing Members).                                    that extending the window for Clearing
                                                exercise reasonable discretion, if                           Rule 1111(e)(iii) provides that every              Member withdrawal following a
                                                necessary, in establishing the Partial                    Partial Tear-Up position is                           proportionate charge to be equivalent
                                                Tear-Up Price by some means other than                    automatically terminated upon and with                with the cooling-off period would afford
                                                its existing practices concerning pricing                 effect from the Partial Tear-Up Time,                 a Clearing Member a more reasonable
                                                and valuation. Specifically, Rule 1111(f)                 without the need for any further step by              period in which to evaluate whether the
                                                would require that OCC, in exercising                     any party to such Cleared Contract or                 withdrawal from clearing membership
                                                any such discretion, would act in good                    Cleared Security, and that upon                       would be necessary to cap its liability
                                                faith and in a commercially reasonable                    termination, either OCC or the relevant               for proportionate charges at 200% of its
                                                manner to adopt methods of valuation                      Clearing Member (as the case may be)                  then-required Clearing Fund
                                                expected to produce reasonably accurate                   shall be obligated to pay the other the               contributions. With this change, OCC
                                                substitutes for the values that would                     applicable Partial Tear-Up Price. Rule                believes the increased predictability
                                                have been obtained from the relevant                      1111(e)(iii) further provides that the                would help it to more reliably
                                                market if it were operating normally,                     corresponding open position shall be                  understand the amount of Clearing
                                                including but not limited to the use of                   deemed terminated at the Partial Tear-                Fund contributions that will likely be
                                                pricing models that use the market price                  Up Price.                                             available to it after a proportionate
                                                of the underlying interest or the market                     Rule 1111(g) provides that to the                  charge is assessed. Second, the
                                                prices of its components. Rule 1111(f)                    extent losses imposed upon non-                       introduction of rules to allow for
                                                further specifies that OCC may consider                   defaulting Clearing Members and non-                  voluntary payments, Voluntary Tear-
                                                the same information set forth in                         defaulting customers resulting from a                 Ups and Partial Tear-Ups would provide
                                                subpart (c) of Section 27, Article VI of                  Partial Tear-Up can reasonably be                     OCC with three distinct tools that could
                                                OCC’s By-Laws.28                                          determined, the Board may elect to re-                be used to allocate any credit losses
                                                   The scope of any Partial Tear-Up will                  allocate such losses among all non-                   OCC may face in excess of collateral and
                                                be determined in accordance with Rule                     defaulting Clearing Members through a                 other resources available to OCC.
                                                1111(e). With respect to the                              special charge to all non-defaulting                  Finally, in the event that OCC believes
                                                extinguishment of Remaining Open                          Clearing Members in an amount                         its obligations and liabilities arising
                                                Positions, OCC will designate Tear-Up                     corresponding to each such non-                       from remaining positions in the
                                                Positions in identical Cleared Contracts                  defaulting Clearing Member’s                          portfolio of a defaulted Clearing
                                                and Cleared Securities on the opposite                    proportionate share of the variable                   Member may exceed its remaining
                                                side of the market and in an aggregate                    amount of the Clearing Fund at the time               available financial resources, the
                                                amount equal to that of the Remaining                     such Partial Tear-Up is conducted.29                  proposed changes ultimately would
                                                Open Positions. OCC will only                               With respect to Partial Tear-Ups, new               enable OCC to extinguish those
                                                designate Tear-Up Positions in the                        Rule 1111(h) would clarify that no                    positions, thereby re-establishing a
                                                accounts of non-defaulting Clearing                       action or omission by OCC pursuant to                 matched book.
                                                Members (inclusive of such Clearing                       and in accordance Rule 1111 shall                        The risks of a Partial Tear-Up are
                                                Members’ customer accounts) with an                       constitute a default by OCC.                          extremely remote; nonetheless, OCC
                                                open position in the applicable Cleared                                                                         believes that the express authority to
                                                                                                          Expected Effect on and Management of                  conduct a Partial Tear-Up may be
                                                Contract or Cleared Security and of non-                  Risk
                                                defaulted customers of a defaulted                                                                              viewed as increasing Clearing Members’
                                                Clearing Member. Tear-Up Positions                           OCC believes that the proposed                     and customers’ exposure to an extreme
                                                shall be designated and applied by OCC                    changes would reduce the nature and                   stress scenario. As explained above, the
                                                on a pro rata basis across all the                        level of risk presented to OCC in three               proposed Partial Tear-Up authority is
                                                identical positions in Cleared Contracts                  primary ways: (i) By providing greater                consistent with regulatory requirements,
                                                and Cleared Securities on the opposite                    certainty regarding what financial                    as well as with the expectations of CCPs
                                                side of the market in the accounts of                     resources will be available to OCC after              of various international organizations.
                                                non-defaulted Clearing Members and                        a proportionate charge is assessed; (ii)              OCC further believes that its proposed
                                                non-defaulted customers (including the                    by providing additional tools by which                Partial Tear-Up authority strikes an
                                                                                                          to allocate credit losses in excess of                appropriate balance between seeking to
                                                   28 In relevant part, subpart (c) reads as follows:     OCC’s available financial resources; and              protect the interests of Clearing
                                                ‘‘In determining a close-out amount, the                  (iii) by enhancing OCC’s ability to re-               Members and customers and the need to
                                                Corporation may consider any information that it          establish a matched book. First, OCC                  have appropriate tools to stabilize a
                                                deems relevant, including, but not limited to, any        believes the imposition of a 200% cap                 systemically important financial market
                                                of the following: (1) Prices for underlying interests
                                                in recent transactions, as reported by the market or      on OCC’s assessment powers during any                 utility and minimize the risk of
                                                markets for such interests; (2) quotations from           cooling-off period provides Clearing                  disruption to the broader financial
                                                leading dealers in the underlying interest, setting       Members with greater certainty                        system. To address the potential impact
                                                forth the price (which may be a dealing price or an       regarding their maximum liability with                of a Partial Tear-Up on Clearing
                                                indicative price) that the quoting dealer would
                                                charge or pay for a specified quantity of the             respect to the Clearing Fund during                   Members and customers, OCC has
                                                underlying interest; (3) relevant historical and          extreme stress events, which in turn,                 proposed two tools that would enable it
                                                current market data for the relevant market,              facilitates Clearing Members’                         to equitably re-allocate the losses, costs
                                                provided by reputable outside sources or generated        management of their own risks, and to                 and fees imposed upon holders of torn-
                                                internally; and (4) values derived from theoretical
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                                                pricing models using available prices for the             the extent applicable, regulatory capital             up positions.
                                                underlying interest or a related interest and other                                                             Consistency With the Clearing
                                                relevant data. Amounts stated in a currency other           29 For the avoidance of doubt, the special charge

                                                than U.S. Dollars shall be converted to U.S. Dollars      would be distinct and separate from a Clearing        Supervision Act
                                                at the current rate of exchange, as determined by         Member’s obligation to satisfy Clearing Fund             The stated purpose of the Clearing
                                                the Corporation. A position having a positive close-      assessments, and therefore, would not be subject to
                                                out value shall be an ‘asset position’ and a position     the aforementioned assessment cap in the amount
                                                                                                                                                                Supervision Act is to mitigate systemic
                                                having a negative close-out value shall be a ‘liability   of 200% of a Clearing Member’s then-required          risk in the financial system and promote
                                                position.’ ’’                                             contribution to the Clearing Fund.                    financial stability by, among other


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                                                3250                          Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices

                                                things, promoting uniform risk                          the requirements of Rule 17Ad–                         resources to satisfy its obligations and
                                                management standards for systemically                   22(e)(3)(ii), the proposed tools would                 liabilities resulting from such default.
                                                important financial market utilities and                enable OCC to better address the risks                 Finally, new Rule 1111 also would
                                                strengthening the liquidity of                          of liquidity shortfalls and credit losses              provide the Board with discretion to
                                                systemically important financial market                 resulting from a Clearing Member                       mandatorily tear-up Remaining Open
                                                utilities.30 Section 805(a)(2) of the                   default or certain other loss events and,              Positions and Related Open Positions,
                                                Clearing Supervision Act 31 also                        if necessary, to ultimately re-establish a             in a circumstance where a Clearing
                                                authorizes the Commission to prescribe                  matched book in a recovery or orderly                  Member has defaulted and OCC has
                                                risk management standards for the                       wind-down scenario.37 In this context,                 determined that, notwithstanding the
                                                payment, clearing and settlement                        the proposed changes serve as a critical               availability of any remaining resources
                                                activities of designated clearing entities,             component of OCC’s recovery and                        under OCC Rules 707, 1001, 1104
                                                like OCC, for which the Commission is                   orderly wind-down plan. As a result, in                through 1107, 2210 and 2211, OCC may
                                                the supervisory agency. Section 805(b)                  OCC’s view, the proposed changes are                   not have sufficient resources to satisfy
                                                of the Clearing Supervision Act 32 states               consistent with the requirements of Rule               its obligations and liabilities resulting
                                                that the objectives and principles for                  17Ad–22(e)(3)(ii) as to the recovery and               from such default.41 In OCC’s view,
                                                risk management standards prescribed                    orderly wind-down plan.38                              each of these tools could be deployed by
                                                under Section 805(a) shall be to:                       Allocation of Credit Losses Above                      OCC, if necessary, to allocate credit
                                                   • Promote robust risk management;                    Available Resources                                    losses in excess of the collateral and
                                                   • promote safety and soundness;                                                                             other resources available to OCC, in
                                                   • reduce systemic risks; and                            In relevant part, Rule 17Ad–                        accordance with Rule 17Ad–
                                                   • support the stability of the broader               22(e)(4)(viii) requires that each CCA                  22(e)(4)(viii).42
                                                financial system.                                       ‘‘establish, implement, maintain and
                                                   The Commission has adopted risk                      enforce written policies and procedures                Replenishment of Financial Resources
                                                management standards under Section                      reasonably designed to . . . [a]ddress[ ]              Following a Default
                                                805(a)(2) of the Clearing Supervision                   allocation of credit losses the [CCA] may                 In relevant part, Rule 17Ad–
                                                Act and the Act in furtherance of these                 face if its collateral and other resources             22(e)(4)(ix) requires that each CCA
                                                objectives and principles, including                    are insufficient to fully cover its credit             ‘‘establish, implement, maintain and
                                                those standards adopted pursuant to the                 exposures . . .’’ 39 The proposed                      enforce written policies and procedures
                                                Commission rules cited below.33 For the                 changes would provide OCC with three                   reasonably designed to . . . [d]escrib[e]
                                                reasons set forth below, OCC believes                   distinct tools that could be used to                   the [CCA’s] process to replenish any
                                                that the proposed change is consistent                  allocate any credit losses OCC may face                financial resources it may use following
                                                with the risk management standards                      in excess of collateral and other                      a default or other event in which use of
                                                promulgated under Section 805(a) of the                 resources available to OCC. First, new                 such resources is contemplated.’’ 43
                                                Clearing Supervision Act.34                             Rule 1009 would provide a framework                    OCC’s Clearing Members have a
                                                                                                        by which OCC could receive voluntary                   standing obligation to replenish the
                                                Recovery and Orderly Wind-Down                          payments in a circumstance where a                     Clearing Fund following any
                                                   In relevant part, Rule 17Ad–                         Clearing Member has defaulted and                      proportionate charge. The proposed
                                                22(e)(3)(ii) requires that each CCA                     OCC has determined that,                               changes would establish a rolling
                                                ‘‘establish, implement, maintain and                    notwithstanding the availability of any                cooling-off period, triggered by the
                                                enforce written policies and procedures                 remaining resources under OCC Rules                    payment of a proportionate charge
                                                reasonably designed to . . . plan[ ] for                707, 1001, 1104 through 1107, 2210 and                 against the Clearing Fund, during which
                                                the recovery and orderly wind-down of                   2211,40 OCC may not have sufficient                    period the aggregate liability of a
                                                the [CCA] necessitated by credit losses,                resources to satisfy its obligations and               Clearing Member to replenish the
                                                liquidity shortfalls, losses from general               liabilities resulting from such default.               Clearing Fund (inclusive of
                                                business risk, or any other losses.’’ 35 As             Second, new Rule 1111 would establish                  assessments) would be 200% of the
                                                stated above, each of the proposed                      a framework by which non-defaulting                    Clearing Member’s required
                                                changes is designed to provide OCC                      Clearing Members and non-defaulting                    contribution as of the time immediately
                                                with tools to address the risks OCC                     customers of Clearing Members could be                 preceding the triggering proportionate
                                                might confront in a recovery and orderly                given an opportunity to participate in                 charge. Compared to the current
                                                wind-down scenario.36 Consistent with                   Voluntarily Tear-Ups in a circumstance                 requirement under which a Clearing
                                                                                                        where a Clearing Member has defaulted                  Member may cap its liability to
                                                  30 12  U.S.C. 5461(b).                                and OCC has determined that,                           proportionate charges at an additional
                                                  31 12  U.S.C. 5464(a)(2).                             notwithstanding the availability of any                100% of its then-required contribution,
                                                   32 12 U.S.C. 5464(b).
                                                                                                        remaining resources under OCC Rules                    a Clearing Member would instead be
                                                   33 17 CFR 240.17Ad–22. See Securities Exchange
                                                                                                        707, 1001, 1104 through 1107, 2210 and                 permitted to cap its liability for
                                                Act Release Nos. 68080 (October 22, 2012), 77 FR
                                                66220 (November 2, 2012) (S7–08–11) (‘‘Clearing
                                                                                                        2211, OCC may not have sufficient                      proportionate charges at an additional
                                                Agency Standards’’); 78961 (September 28, 2016),                                                               200% of its then-required Clearing Fund
                                                81 FR 70786 (October 13, 2016) (S7–03–14)               ‘‘Recovery Tools.’’ OCC has filed a proposed rule      contribution.
                                                (‘‘Standards for Covered Clearing Agencies’’). The      change with the Commission in connection with
                                                Standards for Covered Clearing Agencies became          this proposal. See SR–OCC–2017–021.                       OCC believes that the proposed
                                                effective on December 12, 2016. OCC is a ‘‘covered         37 17 CFR 240.17Ad–22(e)(3)(ii).                    approach improves predictability for
                                                clearing agency’’ as defined in Rule 17Ad–22(a)(5)         38 17 CFR 240.17Ad–22(e)(3)(ii).
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                                                and therefore is subject to section (e) of Rule 17Ad–      39 17 CFR 240.17Ad–22(e)(v)(viii).                     41 Rule 1111(g), which would provide the Board
                                                22.                                                        40 Rule 707 addresses the treatment of funds in a   authority to equitably re-allocate losses, costs and
                                                   34 12 U.S.C. 5464(b)(1) and (4).                                                                            fees directly imposed as a result of a Partial Tear-
                                                                                                        Clearing Member’s X–M accounts. Rule 1001
                                                   35 17 CFR 240.17Ad–22(e)(3)(ii).
                                                                                                        addresses the size of OCC’s Clearing Fund and the      Up among all non-defaulting Clearing Members
                                                   36 Indeed, the OCC’s separately filed recovery and   amount of a Clearing Member’s contribution. Rules      through a special charge, would serve as a
                                                orderly wind-down plan identifies OCC’s                 1104 through 1107 concern the treatment of the         discretionary tool to redistribute the credit losses
                                                assessment powers, ability to call for voluntary        portfolio of a defaulted Clearing Member. Rules        allocated through Partial Tear-Up.
                                                                                                                                                                  42 17 CFR 240.17Ad–22(e)(v)(viii).
                                                payments, ability to call for Voluntary Tear-Ups and    2210 and 2211 concern the treatment of Stock Loan
                                                ability to impose Partial Tear-Ups among its            positions of a defaulted Clearing Member.                 43 17 CFR 240.17Ad–22(e)(4)(ix).




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                                                                               Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices                                                       3251

                                                OCC and for Clearing Members                            CCAs. In any such event, OCC’s existing                   OCC’s assessment powers, is likely to
                                                regarding the size of Clearing Fund                     authority under Rule 603 would permit                     provide Clearing Members with an
                                                contributions that are likely to be                     OCC to call on participants for                           adequate measure of stability and
                                                subject to assessments for proportionate                additional initial margin, which could                    predictability as to the potential use of
                                                charges. Additionally, replacing the five               ensure that OCC’s minimum financial                       Clearing Fund resources, which OCC
                                                business day withdrawal period with                     resources remain in excess of applicable                  believes removes the existing incentive
                                                the withdrawal period commensurate                      CCA requirements.45 OCC recognizes                        for Clearing Members to withdraw
                                                with the cooling-off period (which, as                  that the imposition of increased margin                   following a proportionate charge.46
                                                proposed would be a minimum of                          requirements could have an immediate                        In light of the foregoing, OCC believes
                                                fifteen calendar days) would give                       pro-cyclical impact on participants (and                  that the proposed changes would
                                                Clearing Members a more reasonable                      consequential impacts on the broader                      enhance and strengthen its process to
                                                period in which to meet the wind-down                   financial system) that is potentially                     replenish the Clearing Fund following a
                                                and termination requirements necessary                  greater than the impact of replenishing                   default or other event in which use of
                                                to cap their liability. OCC believes that               the Clearing Fund. These risks would be                   the Clearing Fund is contemplated, in
                                                this would afford them greater certainty                limited to a specific extreme stress event                accordance with Rule 17Ad–
                                                regarding their maximum liability with                  and could be mitigated by certain                         22(e)(4)(ix).47
                                                respect to the Clearing Fund during                     factors. First, OCC, in coordination with
                                                                                                                                                                  Replenishment of Liquid Resources
                                                extreme stress events, which in turn,                   its regulators, would carefully evaluate
                                                facilitates Clearing Members’                           any potential increase in the context of                     In relevant part, Rule 17Ad–
                                                management of their own risk                            then-existing facts and circumstances.                    22(e)(7)(ix) requires that each CCA
                                                management, and to the extent                           Second, during the cooling-off period,                    ‘‘establish, implement, maintain and
                                                applicable, regulatory capital                          Clearing Members and their customers                      enforce written policies and procedures
                                                considerations. And OCC believes this                   will have the opportunity to reduce or                    reasonably designed to . . . [d]escrib[e]
                                                increased predictability would also be                  rebalance their respective portfolios in                  the [CCA’s] process to replenish any
                                                beneficial to OCC by helping it to more                 order to mitigate their exposures to                      liquid resources that the clearing agency
                                                reliably understand the amount of                       stress losses and initial margin                          may employ during a stress event.’’ 48
                                                Clearing Fund contributions that will                   increases. Finally, since initial margin is               Since the use any part of the cash
                                                likely be available to it after a                       not designed to be subject to mutualized                  portion of OCC’s Clearing Fund would
                                                proportionate charge is assessed.44                     loss, the risk of loss faced by Clearing                  constitute a depletion of one of OCC’s
                                                   OCC believes that the relative                       Members for amounts posted as                             liquid resources, OCC’s assessment
                                                certainty provided by the proposed                      additional margin would be                                power, discussed above, is the primary
                                                cooling-off period and 200% cap on                      substantially less than for                               means of replenishing the Clearing
                                                assessments ultimately could reduce the                 replenishments of the Clearing Fund.                      Fund cash that OCC used to address the
                                                risks of successive or ‘‘cascading’’                       Given the products cleared by OCC                      stress event. For the same reasons stated
                                                defaults, in which the financial                        and the composition of its clearing                       above, OCC believes that the proposed
                                                demands on remaining non-defaulting                     membership, OCC has determined that                       changes enhance and strengthen its
                                                Clearing Members to continually                         a minimum 15-calendar day cooling-off                     process to replenish the Clearing Fund,
                                                replenish OCC’s Clearing Fund (and                      period, rolling up to a maximum of 20                     as necessary, following a default or
                                                similar guaranty funds at other CCPs to                 calendar days, is likely to be a sufficient               other stress event in which the Clearing
                                                which such Clearing Members might                       amount of time for OCC to manage the                      Fund is used, and therefore, OCC views
                                                belong) have the effect of further                      ongoing default(s) and take necessary                     the proposed changes as consistent with
                                                weakening such Clearing Members to                      steps in furtherance of stabilizing the                   Rule 17Ad–22(e)(7)(ix).49
                                                the point of default. In this regard, the               clearing system. Further, through
                                                proposed changes are designed to                        conversations with Clearing Members,                      Timely Action To Contain Losses
                                                provide OCC, Clearing Members and                       OCC believes that the proposed cooling-                     In relevant part, Rule 17Ad–22(e)(13)
                                                other stakeholders with sufficient time                 off period is likely to be a sufficient                   requires that each CCA ‘‘establish,
                                                to manage the ongoing default(s)                        amount for Clearing Members (and their                    implement, maintain and enforce
                                                without further aggravating the extreme                 customers) to orderly reduce or                           written policies and procedures
                                                stresses facing market participants.                    rebalance their positions, in an attempt                  reasonably designed to . . . [e]nsure the
                                                   OCC recognizes that the proposed                     to mitigate stress losses and exposure to                 [CCA] has the authority and operational
                                                changes would limit the maximum                         potential initial margin increases as they                capacity to take timely action to contain
                                                amount of Clearing Fund resources that                  navigate the stress event. Through                        losses and liquidity demands and
                                                could be available to OCC in an extreme                 conversations with Clearing Members,                      continue to meet its obligations . . .’’ 50
                                                stress scenario, which introduces the                   OCC also believes that the proposed                       The proposed changes would provide
                                                possibility, however remote, that the                   cooling-off period is likely to be a                      OCC with the authority to call for
                                                proposed 200% cap ultimately could be                   sufficient amount for certain Clearing                    Voluntary Tear-Ups and OCC’s Board
                                                reached. If during any cooling-off period               Members to orderly close-out their
                                                the amount of aggregate proportionate                   positions and transfer customer                              46 OCC initially considered a fixed 15-calendar

                                                charges against the Clearing Fund                       positions as they withdraw from                           day cooling-off period; however, OCC concluded
                                                approaches the 200% cap, the amount                                                                               that a fixed 15-calendar day cooling-off period may
                                                                                                        clearing membership. OCC believes the                     increase the risks of successive or cascading
                                                remaining in the Clearing Fund may no                   proposed cooling-off period, coupled                      Clearing Member defaults and may perversely
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                                                longer be sufficient to comply with the                 with the other proposed changes to                        incentivize Clearing Members to seek to withdraw
                                                applicable minimum regulatory                                                                                     from clearing membership. Through conversations
                                                financial resources requirements in the                   45 Rule 603 provides that ‘‘[t]he Risk Committee        with Clearing Members, OCC believes that these
                                                                                                                                                                  potentially disruptive consequences are mitigated
                                                                                                        may, from time to time, increase the amount of
                                                                                                                                                                  by the proposed rolling cooling-off period.
                                                   44 Under the existing approach, it is less certain   margin which may be required in respect of a                 47 17 CFR 240.17Ad–22(e)(4)(ix).
                                                from OCC’s standpoint regarding whether Clearing        cleared contract, open short position or exercised
                                                                                                                                                                     48 17 CFR 240.17Ad–22(e)(7)(ix).
                                                Members would reasonably be able to cap their           contract if, in its discretion, it determines that such
                                                                                                                                                                     49 17 CFR 240.17Ad–22(e)(7)(ix).
                                                liability to proportionate charges within five          increase is advisable for the protection of [OCC], the
                                                business days.                                          Clearing Members or the general public.’’                    50 17 CFR 240.17Ad–22(e)(13).




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                                                3252                          Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices

                                                with the discretion to impose Partial                   risks, fees, and other material costs they              within 60 days of the later of (i) the date
                                                Tear-Ups, which would provide OCC                       incur by participating in the covered                   the proposed change was filed with the
                                                with authority necessary to extinguish                  clearing agency.’’ 54 The proposed                      Commission or (ii) the date any
                                                certain losses (and attendant liquidity                 changes would clearly explain to                        additional information requested by the
                                                demands) thereby potentially enabling                   Clearing Members and market                             Commission is received. OCC shall not
                                                OCC to continue to meet its remaining                   participants that an extreme stress                     implement the proposed change if the
                                                obligations to participants. As designed,               scenario could result in the use—and                    Commission has any objection to the
                                                Voluntary Tear-Ups and Partial Tear-                    theoretically the exhaustion—of OCC’s                   proposed change.
                                                Ups would be initiated on a date                        financial resources, inclusive of OCC’s                    The Commission may extend the
                                                sufficiently in advance of the                          proposed assessment powers. Proposed                    period for review by an additional 60
                                                exhaustion of OCC’s financial resources                 changes to Section 6, Article VIII of                   days if the proposed change raises novel
                                                such that OCC is expected to have                       OCC’s By-Laws would explain Clearing                    or complex issues, subject to the
                                                adequate resources remaining to cover                   Members’ replenishment obligation and                   Commission providing the clearing
                                                the amount it must pay to extinguish the                liability for assessments. The proposed                 agency with prompt written notice of
                                                positions of Clearing Members and                       changes also would clearly explain,                     the extension. A proposed change may
                                                customers without haircutting gains.                    through proposed Rules 1009 and 1111,                   be implemented in less than 60 days
                                                Accordingly, OCC believes that its                      that as OCC nears the exhaustion of its                 from the date the advance notice is
                                                authority and capacity to conduct a                     assessment powers, Clearing Members                     filed, or the date further information
                                                Partial Tear-Up should be timely,                       may be asked for voluntary payments                     requested by the Commission is
                                                relative to the adequacy of OCC’s                       and, if necessary, Clearing Members and                 received, if the Commission notifies the
                                                remaining financial resources. Finally,                 customers may be asked to participate                   clearing agency in writing that it does
                                                OCC believes it has the operational and                 in a Voluntary Tear-Up and/or subject to                not object to the proposed change and
                                                systems capacity sufficient to support                  a Partial Tear-Up. Proposed Rules                       authorizes the clearing agency to
                                                the proposed changes, and OCC’s                         1009(b) and 1111(a)(ii) also would make                 implement the proposed change on an
                                                policies and procedures will be updated                 clear that Clearing Members that made                   earlier date, subject to any conditions
                                                accordingly to reflect the existence of                 voluntary payments and Clearing                         imposed by the Commission.
                                                these new tools. As a result, OCC                       Members and customers whose                                OCC shall post notice on its website
                                                believes that the proposed changes                      tendered positions were extinguished in                 of proposed changes that are
                                                conform to the relevant requirements in                 the Voluntary Tear-Up would be                          implemented.
                                                Rule 17Ad–22(e)(13).51                                  prioritized in the distribution of any                     The proposal shall not take effect
                                                                                                        recovery from the defaulted Clearing                    until all regulatory actions required
                                                Public Disclosure of Key Aspects of                     Member(s). Proposed changes to Article                  with respect to the proposal are
                                                Default Rules                                           VIII would clarify that the Clearing                    completed.
                                                   In relevant part, Rule 17Ad–                         Fund contributions remaining after OCC
                                                22(e)(23)(i) requires that each CCA                     has conducted a Voluntary Tear-Up or                    IV. Solicitation of Comments
                                                ‘‘establish, implement, maintain and                    Partial Tear-Up could be used to                          Interested persons are invited to
                                                enforce written policies and procedures                 compensate the non-defaulting Clearing                  submit written data, views and
                                                reasonably designed to . . . [p]ublicly                 Members and non-defaulting customers                    arguments concerning the foregoing,
                                                disclos[e] all relevant rules and material              for the losses, costs or fees imposed                   including whether the advance notice is
                                                procedures, including key aspects of its                upon them as a result of such Voluntary                 consistent with the Clearing
                                                default rules and procedures.’’ 52 As                   Tear-Up or Partial Tear-Up. Proposed                    Supervision Act. Comments may be
                                                stated above, each of the tools discussed               Rule 1111(g) would make clear that,                     submitted by any of the following
                                                herein are contemplated to be deployed                  following a Partial Tear-Up, OCC’s                      methods:
                                                by OCC if an extreme stress event has                   Board may seek to equitably re-allocate
                                                                                                                                                                Electronic Comments
                                                placed OCC into a recovery or orderly                   losses, costs and fees directly imposed
                                                wind-down scenario, and therefore, the                  as a result of a Partial Tear-Up among                    • Use the Commission’s internet
                                                tools discussed herein constitute key                   all non-defaulting Clearing Members                     comment form (http://www.sec.gov/
                                                aspects of OCC’s default rules. By                      through a special charge. By                            rules/sro.shtml); or
                                                incorporating the proposed changes into                 incorporating the proposed changes into                   • Send an email to rule-comments@
                                                OCC’s Rules and By-Laws, as further                     OCC’s Rules and By-Laws, as further                     sec.gov. Please include File Number SR–
                                                supplemented by the discussion in                       supplemented by the discussion in                       OCC–2017–809 on the subject line.
                                                OCC’s public rule filing, OCC believes                  OCC’s public rule filing, OCC believes                  Paper Comments
                                                that proposed changes would conform                     that is has provided sufficient
                                                                                                                                                                  • Send paper comments in triplicate
                                                to the relevant requirements in Rule                    information to enable participants to
                                                                                                                                                                to Brent J. Fields, Secretary, Securities
                                                17Ad–22(e)(23)(i).53                                    identify and evaluate the risks, fees, and
                                                                                                                                                                and Exchange Commission, 100 F Street
                                                                                                        other material costs they could incur by
                                                Sufficient Information Regarding the                                                                            NE, Washington, DC 20549.
                                                                                                        participating OCC, consistent with the
                                                Risks, Fees and Costs of Clearing                       requirements in Rule 17Ad–                              All submissions should refer to File
                                                   In relevant part, Rule 17Ad–                         22(e)(23)(ii).55                                        Number SR–OCC–2017–809. This file
                                                22(e)(23)(ii) requires that each CCA                                                                            number should be included on the
                                                ‘‘establish, implement, maintain and                    III. Date of Effectiveness of the Advance               subject line if email is used. To help the
                                                                                                        Notice and Timing for Commission                        Commission process and review your
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                                                enforce written policies and procedures
                                                reasonably designed to . . . [p]rovid[e]                Action                                                  comments more efficiently, please use
                                                sufficient information to enable                           The proposed change may be                           only one method. The Commission will
                                                participants to identify and evaluate the               implemented if the Commission does                      post all comments on the Commission’s
                                                                                                        not object to the proposed change                       internet website (http://www.sec.gov/
                                                  51 17 CFR 240.17Ad–22(e)(13).                                                                                 rules/sro.shtml). Copies of the
                                                  52 17 CFR 240.17Ad–22(e)(23)(i).                        54 17   CFR 240.17Ad–22(e)(23)(ii).                   submission, all subsequent
                                                  53 17 CFR 240.17Ad–22(e)(13).                           55 17   CFR 240.17Ad–22(e)(23)(ii).                   amendments, all written statements


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                                                                              Federal Register / Vol. 83, No. 15 / Tuesday, January 23, 2018 / Notices                                             3253

                                                with respect to the advance notice that                 Disbursement Center, 14925 Kingsport                   establishes a private-sector trade
                                                are filed with the Commission, and all                  Road, Fort Worth, TX 76155.                            advisory system to ensure that U.S.
                                                written communications relating to the                  FOR FURTHER INFORMATION CONTACT: A.                    trade policy and trade negotiation
                                                advance notice between the                              Escobar, Office of Disaster Assistance,                objectives adequately reflect U.S.
                                                Commission and any person, other than                   U.S. Small Business Administration,                    commercial and economic interests.
                                                those that may be withheld from the                     409 3rd Street SW, Suite 6050,                         Section 135(c)(2) (19 U.S.C. 2155(c)(2))
                                                public in accordance with the                           Washington, DC 20416, (202) 205–6734.                  directs the President to establish
                                                provisions of 5 U.S.C. 552, will be                     SUPPLEMENTARY INFORMATION: The notice                  sectoral or functional trade advisory
                                                available for website viewing and                       of an Administrative declaration for the               committees as appropriate, comprised of
                                                printing in the Commission’s Public                     State of ARIZONA, dated 08/03/2017, is                 representatives of all industry, labor,
                                                Reference Room, 100 F Street NE,                        hereby amended to establish the                        agricultural, and services interests
                                                Washington, DC 20549 on official                        incident closing date as 09/30/2017.                   (including small business interests) in
                                                business days between the hours of                        All other information in the original                the sector or functional area. These
                                                10:00 a.m. and 3:00 p.m. Copies of the                  declaration remains unchanged.                         committees provide detailed policy and
                                                filing also will be available for                       (Catalog of Federal Domestic Assistance                technical advice, information, and
                                                inspection and copying at the principal                 Number 59008)                                          recommendations regarding trade
                                                office of OCC and on OCC’s website at                                                                          barriers, negotiation of trade
                                                                                                          Dated: January 11, 2018.
                                                https://www.theocc.com/components/                                                                             agreements, and implementation of
                                                                                                        Linda E. McMahon,
                                                docs/legal/rules_and_bylaws/sr_occ_17_                                                                         existing trade agreements affecting
                                                809.pdf.                                                Administrator.                                         industry sectors, and perform other
                                                   All comments received will be posted                 [FR Doc. 2018–01163 Filed 1–22–18; 8:45 am]            advisory functions relevant to U.S. trade
                                                without change. Persons submitting                      BILLING CODE 8025–01–P                                 policy matters as requested. In
                                                comments are cautioned that we do not                                                                          organizing such committees, the Trade
                                                redact or edit personal identifying                                                                            Representative and the relevant
                                                information from comment submissions.                   OFFICE OF THE UNITED STATES                            Secretary are to consult with interested
                                                You should submit only information                      TRADE REPRESENTATIVE                                   private organizations and to consider
                                                that you wish to make available                                                                                ‘‘(i) patterns of actual or potential
                                                publicly.                                               Notice of Proposed Changes to the                      competition between United States
                                                   All submissions should refer to File                 Slate of Industry Trade Advisory                       industry and agriculture and foreign
                                                Number SR–OCC–2017–809 and should                       Committees                                             enterprise in international trade, (ii) the
                                                be submitted on or before February 13,                  AGENCY: Office of the United States                    character of the nontariff barriers and
                                                2018.                                                   Trade Representative.                                  other distortions affecting such
                                                  By the Commission.                                    ACTION: Notice and request for                         competition, (iii) the necessity for
                                                Eduardo A. Aleman,                                      comments.                                              reasonable limits on the number of such
                                                                                                                                                               advisory committees, (iv) the necessity
                                                Assistant Secretary.
                                                                                                        SUMMARY:   The United States Trade                     that each committee be reasonably
                                                [FR Doc. 2018–01070 Filed 1–22–18; 8:45 am]             Representative (Trade Representative)                  limited in size, and (v) in the case of
                                                BILLING CODE 8011–01–P                                  and the Secretary of Commerce                          each sectoral committee, that the
                                                                                                        (Secretary) plan to establish a new four-              product lines covered by each
                                                                                                        year charter term for the Industry Trade               committee be reasonably related.’’
                                                SMALL BUSINESS ADMINISTRATION                           Advisory Committees (ITACs) beginning                     Pursuant to this authority, the
                                                                                                        in February 2018. As part of the re-                   Secretary and the Trade Representative
                                                [Disaster Declaration #15230 and #15231;                chartering process, the Secretary and the
                                                Arizona Disaster Number AZ–00050]                                                                              established the ITACs to provide
                                                                                                        Trade Representative are proposing                     detailed policy and technical advice,
                                                Administrative Declaration                              changes to the current slate of ITACs                  information, and recommendations to
                                                Amendment of Disaster for the State of                  and invite interested parties to submit                the Secretary and the Trade
                                                Arizona                                                 their view on these changes.                           Representative on trade policy matters
                                                                                                        DATES: The deadline for submission of                  including: (1) Negotiating objectives and
                                                AGENCY: U.S. Small Business                             written comments is February 5, 2018 at                bargaining positions before entering into
                                                Administration.                                         midnight EST.                                          trade agreements; (2) the impact of the
                                                ACTION: Amendment 1.                                    ADDRESSES: Submit comments                             implementation of trade agreements on
                                                                                                        electronically via email to                            the relevant sector; (3) matters
                                                SUMMARY:   This is an amendment of the                  FRNCommentsITAC@trade.gov.                             concerning the operation of any trade
                                                Administrative declaration of a disaster                                                                       agreement once entered into; and (4)
                                                                                                        FOR FURTHER INFORMATION CONTACT:
                                                for the State of Arizona dated 08/03/                                                                          other matters arising in connection with
                                                                                                        Gregory M. Walters, Assistant United
                                                2017.                                                                                                          the development, implementation, and
                                                                                                        States Trade Representative for
                                                  Incident: Post-fire Flooding from                                                                            administration of the trade policy of the
                                                                                                        Intergovernmental Affairs and Public
                                                Monsoon Storms.                                                                                                United States. The nonpartisan,
                                                                                                        Engagement at Gregory.M.Walters@
                                                  Incident Period: 07/19/2017 through                                                                          industry input provided by the ITACs is
                                                                                                        ustr.eop.gov or (202) 395–2558. You can
                                                09/30/2017.                                                                                                    important in developing unified trade
                                                                                                        find additional information about the
                                                DATES: Issued on 01/11/2018.                                                                                   policy objectives and positions when
sradovich on DSK3GMQ082PROD with NOTICES




                                                                                                        ITACs on the International Trade
                                                  Physical Loan Application Deadline                    Administration website at                              the United States negotiates and
                                                Date: 10/02/2017.                                       www.trade.gov/itac.                                    implements trade agreements. The
                                                  Economic Injury (EIDL) Loan                           SUPPLEMENTARY INFORMATION:                             ITACs address market-access problems,
                                                Application Deadline Date: 05/03/2018.                                                                         trade barriers, tariffs, discriminatory
                                                ADDRESSES: Submit completed loan                        I. Background                                          foreign procurement practices, and
                                                applications to: U.S. Small Business                       Section 135 of the Trade Act of 1974,               information, marketing, and advocacy
                                                Administration, Processing and                          as amended (19 U.S.C. 2155),                           needs of their industry sector. With


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Document Created: 2018-01-23 01:08:30
Document Modified: 2018-01-23 01:08:30
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation83 FR 3244 

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