Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of a Proposed Rule Change Relating to Close-Out Netting Procedures, 29569-29573 [E7-10196]

Download as PDF Federal Register / Vol. 72, No. 102 / Tuesday, May 29, 2007 / Notices returned by the Exchange to the originating away market. 2. Statutory Basis The proposed rule change is consistent with Section 6(b) of the Act 11 in general and furthers the objectives of Section 6(b)(5) 12 in particular in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanisms of a free and open market and a national market system. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others The Exchange has neither solicited nor received written comments on the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (A) By order approve such proposed rule change, or (B) Institute proceedings to determine whether the proposed rule change should be disapproved. sroberts on PROD1PC70 with NOTICES IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–NYSEArca–2007–34 on the subject line. SECURITIES AND EXCHANGE COMMISSION Paper Comments [Release No. 34–55788; File No. SR–OCC– 2006–19] • Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090. Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of a Proposed Rule Change Relating to Close-Out Netting Procedures All submissions should refer to File Number SR–NYSEArca–2007–34. This file number should be included on the subject line if e-mail 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 Web site (https://www.sec.gov/ rules/sro/shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change 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 inspection and copying in the Commission’s Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–NYSEArca–2007–34 and should be submitted on or before June 19, 2007. May 21, 2007. For the Commission, by the Division of Market Regulation, pursuant to delegated authority.13 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–10208 Filed 5–25–07; 8:45 am] BILLING CODE 8010–01–P Electronic Comments • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 notice is hereby given that on October 10, 2006, The Options Clearing Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission (‘‘Commission’’) and on May 15, 2007, amended the proposed rule change as described in Items I, II, and III below, which items have been prepared primarily by OCC. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The proposed rule change would amend OCC’s By-Laws and Rules to provide for close-out netting procedures to be followed in the highly unlikely event that OCC becomes insolvent or otherwise defaults on its clearing obligations. The proposed rule would clarify the impact of transactions between OCC and its Clearing Members on the capital requirements applicable to Clearing Members and other affiliated entities on a consolidated basis. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. 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), (B), and (C) below, of the most significant aspects of such statements.2 1 15 U.S.C. 78f(b) 12 15 U.S.C. 78f(b)(5). 11 15 VerDate Aug<31>2005 20:45 May 25, 2007 U.S.C. 78s(b)(1). Commission has modified parts of these statements. 2 The 13 17 Jkt 211001 29569 PO 00000 CFR 200.30–3(a)(12). Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\29MYN1.SGM 29MYN1 29570 Federal Register / Vol. 72, No. 102 / Tuesday, May 29, 2007 / Notices (A) Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change sroberts on PROD1PC70 with NOTICES Background OCC has been asked by several of its Clearing Members to consider adopting a rule that would allow for close-out netting of obligations running between OCC and Clearing Members in the event of an OCC default or insolvency. Such a rule could reduce applicable capital requirements for a Clearing Member’s parent company where the parent is a U.S. or non-U.S. bank or part of a Consolidated Supervised Entity (‘‘CSE’’). The absence of a netting agreement that would apply in a default or insolvency of OCC could cause the minimum capital requirement applicable to such a parent company and its subsidiaries on a consolidated basis to be substantially larger than it would be otherwise. In the absence of a netting agreement, applicable banking regulations generally prohibit offsetting the Clearing Member’s obligations to OCC on short positions in options and on other obligations against the Clearing Member’s credit exposure to OCC with respect to long options positions and other obligations of OCC. In addition, OCC believes that a close-out netting rule would clarify the accounting treatment of obligations between OCC and its Clearing Members. The proposed rule change is designed to allow Clearing Members to comply with international standards under the Basel Capital Accord adopted by the Basel Committee on Banking Supervision relating to bilateral netting (‘‘Basel Netting Standards’’).3 It is OCC’s understanding that the capital rules applicable to most banks following the Basel Netting Standards require that an enforceable netting agreement be in place in order for mutual obligations between a Clearing Member that is a bank affiliate and a counterparty such as OCC to be treated on a net basis. The policy behind this requirement is to ensure that obligations that are treated on a net basis for capital purposes can actually be offset against one another in the event of the failure of the counterparty. In the absence of an enforceable netting agreement, there is concern that the representative of the failed counterparty (i.e., OCC in this scenario) might be able to ‘‘cherry pick’’ under applicable insolvency law by assuming the benefit of contracts 3 For more information on the Basel Committee on Banking Supervision and the Basel Netting Standards, see of the Bank for International Settlement’s Web site at https://www.bis.org. VerDate Aug<31>2005 20:45 May 25, 2007 Jkt 211001 representing an asset to the bankruptcy estate while rejecting contracts representing a liability. This would force the non-defaulting counterparty (i.e., the Clearing Member in this scenario) to perform in full on its liabilities while sharing with other unsecured creditors in any amounts available for distribution from the bankruptcy estate to satisfy its claims. An enforceable netting agreement providing for so-called ‘‘close-out netting’’ in the event of a default or insolvency of OCC would avoid this potential result. Chapter XI of OCC’s Rules, Suspension of a Clearing Member, provides in considerable detail for liquidation of the accounts of an insolvent Clearing Member including provisions for close-out netting of the Clearing Member’s obligations against its assets to the extent permitted by customer protection rules under the Act and under the Commodity Exchange Act (‘‘CEA’’). However, OCC’s rules do not presently contain any provisions that specifically permit close-out netting in the event of a default or insolvency of OCC. Indeed, an OCC default or insolvency has always been considered so unlikely that OCC’s rules do not contain any provisions whatever contemplating such events. OCC’s management does not believe that an OCC default or insolvency has become any more likely. On the contrary, OCC’s long track record of safe operation and continually improved methods of risk management suggest that such an event is more remote than ever. Nevertheless, the Basel Netting Standards make it desirable for OCC to put in place such a netting provision in order to clarify the capital requirements applicable on a consolidated basis to parent companies of Clearing Members that are subject to the Basel Netting Standards. The Basel Netting Standards are not directly applicable to the determination of net capital requirements for brokerdealers under Commission Rule 15c3– 1.4 However, some Clearing Members are subsidiaries of banks or bank holding companies that are subject to the Basel Netting Standards when computing capital requirements on a consolidated basis. In addition, several of OCC’s largest Clearing Members have volunteered to participate in the Commission’s CSE program. Finally, as noted below, OCC believes that a closeout netting rule would also clarify the accounting treatment of obligations 4 17 PO 00000 CFR 240.15c3–1. Frm 00089 Fmt 4703 Sfmt 4703 among OCC and its Clearing Members under FIN 39.5 The Basel Netting Standards and FIN 39 (collectively ‘‘Netting Standards’’) are stated in general terms and do not contain detailed requirements. OCC’s proposed close-out netting procedures would, in the event of an OCC default or insolvency, expressly permit Clearing Members to treat their obligations to OCC on a net basis to the fullest extent consistent with the Commission’s customer protection rules. However, the proposed rule change is also intended to protect the clearing system from being thrown out of balance or forced into a disorderly liquidation by a single Clearing Member’s exercise of netting rights. Unlike typical, purely bilateral OTC derivatives relationships, OCC’s contractual rights and obligations— while bilateral between OCC and any individual Clearing Member—represent a balanced structure in which every obligation owed by OCC to a Clearing Member is in turn matched by a corresponding obligation of a Clearing Member to OCC. The creation of individually exercisable netting rights that could be exercised independently by each Clearing Member in the event of an OCC default or insolvency could result in unfairness if no coordination is imposed. The Basel Netting Standards The Basel Netting Standards are contained in Basel II: International Convergence of Capital Measurement and Capital Standards: A Revised Framework—Comprehensive Version (June 2006) (‘‘Basel II Accord’’). The Basel Netting Standards provide that a bank 6 may net transactions subject to any legally valid form of bilateral netting, including netting of bilateral obligations arising from novation, if the bank satisfies its national supervisor that it has a netting contract with the counterparty ‘‘which creates a single legal obligation, covering all included transactions, such that the bank would have either a claim to receive or obligation to pay only the net sum of the positive and negative mark-to-market values of included individual transactions in the event a counterparty fails to perform due to any * * * default, bankruptcy, liquidation or similar circumstances.’’ 7 5 Financial Account Standards Board (‘‘FASB’’) Interpretation No. 39, Offsetting of Amounts Related to Certain Contracts. FIN 39 specifies the circumstances in which assets and liabilities may be treated as offsetting in financial statements. 6 These same standards are also applied to bank holding companies. 7 Basel Committee on Banking Supervision, Basel Capital Accord: Treatment of Potential Exposure for E:\FR\FM\29MYN1.SGM 29MYN1 Federal Register / Vol. 72, No. 102 / Tuesday, May 29, 2007 / Notices The Basel Netting Standards also require that the bank have certain ‘‘written and reasoned legal opinions that, in the event of a legal challenge, the relevant courts and administrative authorities would find the bank’s exposure to be the net amount.’’ The national supervisor must be satisfied that the netting is enforceable under the laws of each relevant jurisdiction. The proposed close-out netting procedures are intended to support such an opinion. The Basel Netting Standards have been incorporated in applicable bank regulatory laws or regulations in various jurisdictions. For example, the substance of this standard appears in Article 12f of the Swiss Banking Ordinance. It has also been incorporated into the capital guidelines for various U.S. financial institutions.8 sroberts on PROD1PC70 with NOTICES FDICIA and Bankruptcy Code The proposed close-out netting procedures are designed to take advantage of the netting provisions of Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (‘‘FDICIA’’) and the applicable provisions of the United States Bankruptcy Code. Section 404 of FDICIA generally validates netting contracts among members of clearing organizations notwithstanding any other provision of law.9 In order to qualify for this benefit, the ‘‘netting contract’’ must be between ‘‘members’’ of a ‘‘clearing organization,’’ as each of these terms is defined in FDICIA. OCC meets the definition of ‘‘clearing organization’’ under FDICIA, and both it and its Clearing Members meet the definition of ‘‘members.’’ Under FDICIA, the rules of a clearing organization are expressly included within the definition of ‘‘netting contract.’’ Accordingly, under Section 404 of FDICIA, the netting provisions of OCC’s By-Laws and Rules, including the proposed revised netting procedures, will be given effect in the event of OCC’s default or insolvency. Section 362(b) of the United States Bankruptcy Code 10 exempts from the automatic stay provisions of the Code the setoff by, among other parties, stockbrokers, commodity brokers or clearing agencies, of mutual debts or claims under commodity or securities Off-Balance Sheet Items (April 1995), at Annex, p.4. The relevant bilateral netting standards under this 1995 publication were not overridden by the Basel II Accord. See also Basel II Accord at p.213. Basel II also allows cross-product netting. 8 See e.g., Regulations of the Office of the Comptroller of the Currency applicable to national banks set forth at 12 CFR. Part 3, Appendix A (adopted July 1, 2002), section (3)(b)(5)(ii)(B). 9 12 U.S.C. 4403. 10 11 U.S.C. 362(b). VerDate Aug<31>2005 20:45 May 25, 2007 Jkt 211001 contracts. This section preserves OCC’s ability to net obligations between OCC and a suspended Clearing Member and similarly would protect the ability of Clearing Members to net obligations under the proposed netting procedures in the event of OCC’s default or insolvency. In addition, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (‘‘BAPCPA’’) 11 added to the Bankruptcy Code new subsection 362(o) which provides that the right of setoff and other relevant rights may not be stayed by any order of a court or administrative agency in any proceeding under the Bankruptcy Code.12 This was a significant expansion of the protections for financial contracts under the Bankruptcy Code. Prior Netting Filing and Clearing Member Comments OCC previously submitted and subsequently withdrew a proposed rule change with respect to close-out netting (‘‘Prior Netting Filing’’).13 After reviewing the Prior Netting Filing, some Clearing Members questioned whether the netting procedures set forth in that filing satisfied the Netting Standards. Specifically, Clearing Members questioned whether: 1. The definition of insolvency in the Prior Netting Filing, which covered only voluntary or involuntary cases under Chapter 7, needed to be expanded to include other types of bankruptcies, particularly Chapter 11 cases, and non-bankruptcy defaults; 2. The procedures set forth in the Prior Netting Filing complied with the Netting Standards in light of the inability of the Clearing Members, as the non-defaulting parties, to initiate the netting process; and 3. The proposed procedures gave Clearing Members the ability to promptly net and close out positions as required to comply with the Netting Standards given the degree of control that OCC reserved to itself in the process. After considering the Clearing Members’ comments, OCC withdrew the Prior Netting Filing and made modifications to the proposed netting provisions which are reflected in the current filing. The primary differences between the currently-proposed closeout netting procedures and those contained in the Prior Netting Filing is that the currently-proposed procedures: 1. Significantly expand the definition of insolvency to include non-bankruptcy defaults, specifically any failure by OCC to comply with an undisputed obligation to deliver money or property to a Clearing Member for a period of thirty days after the 11 Public Law 109–8, 119 Stat. 23 (2005). U.S.C. 362(o). 13 File No. SR–OCC–2005–17. 12 11 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 29571 obligation becomes due, and to include bankruptcy or insolvency proceedings under statutory provisions other than Chapter 11 of the U.S. Bankruptcy Code; 2. Provide that upon the occurrence of an event of default or insolvency, any Clearing Member that is neither suspended nor in default with regard to an obligation of OCC may provide a notice to OCC of its intention to terminate all cleared contracts and stock loan and borrow positions in all of its accounts; and 3. Establish a fixed termination time for all cleared contracts and stock loan and borrow positions, which would be the close of business on the third business day after OCC’s receipt of the prescribed notice from a Clearing Member, unless a different time is mandated by the Bankruptcy Code, and to provide that the liquidation settlement date will occur as promptly as practicable after the termination time; (the original provisions granted OCC the discretion to establish the termination time and provided that the liquidation settlement date would occur no earlier than the business day following the termination date). OCC believes that the above modifications address the Clearing Members’ concerns while still permitting the liquidation process to proceed in an orderly manner and for the clearance system to remain in balance. Overview of Proposed Rule Change The proposed rule change consists of a single new Section 27, Close-Out Netting, of Article VI of OCC’s By-Laws, Clearance of Exchange Transactions. Consistent with the requirements of the Basel Netting Standards, the netting provision would be applicable in the event that OCC fails to perform its obligations with respect to cleared contracts as the result of defaults by OCC in performing its obligations under its rules, or as the result of bankruptcy, a liquidation of OCC or similar circumstances. The proposed close-out netting procedures are drafted in such a way that they would only be triggered by an event of default, as defined in new Section 27(a). The rule would not be triggered by any delay in performance that is permitted under OCC’s By-Laws or Rules. For example, Section 19 of Article VI permits OCC to take specified actions, including suspension of settlement obligations, in the event of a shortage of underlying securities. These delays would not be considered an event of default under Section 27 and therefore would not allow a Clearing Member to initiate the close-out netting procedures. In the event of such delays OCC would notify Clearing Members of the reason for the delay. Under the proposed close-out netting procedures, in the event of a default or insolvency by OCC, OCC would be E:\FR\FM\29MYN1.SGM 29MYN1 sroberts on PROD1PC70 with NOTICES 29572 Federal Register / Vol. 72, No. 102 / Tuesday, May 29, 2007 / Notices required to provide notice of the default or insolvency to the Commission, the CFTC, all Clearing Members, any clearing organizations with which OCC has cross-margining or cross-guarantee agreements, and all markets for which OCC clears transactions. The proposed procedures further provide that in the event of an OCC default, any Clearing Member, so long as it is not suspended or in default, may provide a written notice to OCC of its intent to initiate the liquidation process with regard to its own contracts and stock loan and borrow positions. This notice would, however, trigger a liquidation of cleared contracts and positions of all Clearing Members. This procedure is necessary because liquidating contracts and positions of less than all Clearing Members would result in an imbalance of the clearing system and therefore be unworkable. The proposed procedures establish the close of business on the third business day after OCC’s receipt of the liquidation notice from a Clearing Member as the termination time, unless the Bankruptcy Code prescribes a different time. The proposed close-out netting procedures provide that when a triggering event occurs, rights and obligations within and between accounts of each Clearing Member will be netted to the same extent as if the Clearing Member had been suspended and its accounts were being liquidated under Chapter XI of the Rules. This is an appropriate result in that those rules generally provide for the netting of assets against liabilities to the extent permitted under applicable law, including the customer protection rules referred to above. Assets remaining after all legally permissible offsets would be returned to the Clearing Member entitled to them, and the Clearing Member would remain obligated to OCC only to the extent of any remaining net liabilities following such permitted offsets. If close-out netting were ever required because of the default or insolvency of OCC, it seems likely that there would be no market available in which to liquidate positions in cleared contracts through market transactions. Accordingly, the proposed procedures contain a provision for valuation of open cleared contracts based upon market values of underlying interests and provide a reasonable means for OCC to fix all necessary values of assets and liabilities for purposes of the netting. Under the procedures, OCC is to provide valuations as promptly as practicable, but in any event within thirty days of the termination time. VerDate Aug<31>2005 20:45 May 25, 2007 Jkt 211001 Valuations would be based upon available market information. FIN 39: Offsetting of Amounts Related to Certain Contracts In addition to the potential benefit of the proposed close-out netting procedures with respect to capital requirements applicable to certain Clearing Members and their affiliates on a consolidated basis under the Basel Netting Standards, OCC believes that the proposed close-out netting procedures should also clarify the accounting treatment of mutual obligations running between OCC and its Clearing Members. OCC’s Clearing Members most commonly prepare their financial statements using United States generally accepted accounting principles (‘‘US GAAP’’). FIN 39 responds to certain questions relating to the circumstances in which assets and liabilities may be treated as offsetting in financial statements. FIN 39 is an interpretation of Accounting Principles Board (‘‘APB’’) Opinion No. 10 which states: ‘‘It is a general principle of accounting that the offsetting of assets and liabilities in the balance sheet is improper except where a right of setoff exists.’’ FIN 39 provides a definition of a right of setoff and a statement of the conditions under which a right of setoff exists. The definition is as follows: ‘‘A right of setoff is a debtor’s legal right, by contract or otherwise, to discharge all or a portion of the debt owed to another party by applying against the debt an amount that the other party owes to the debtor.’’ FIN 39, paragraph 5 contains the following four conditions under which a right of setoff exists: (a) Each of two parties owes the other determinable amounts. [Emphasis in original.] (b) The reporting party has the right to set off the amount owed with the amount owed by the other party. (c) The reporting party intends to set off. (d) The right of setoff is enforceable at law. It is the obligation of Clearing Members to determine their application of U.S. GAAP but we expect that proposed new Section 27 will allow them to conclude that conditions (a), (b), and (d) will be met. (Condition (c) deals with intent which is a factual question.) Discussion of Specific Provisions of Section 27 The text of proposed new Section 27 of Article VI of the By-Laws is largely self-explanatory in light of the foregoing discussion of its purpose. A few comments may nevertheless be helpful. PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 Under proposed Sections 27(a) and (b), if OCC should ever give notice of its default or insolvency and a Clearing Member in turn provide a notice of termination, the termination time may be later than the time at which a Clearing Member’s liquidation notice is given.14 This leaves open at least the theoretical possibility that, if there are trading days or hours left between the time the notice is given and the termination time, market participants could attempt to engage in closing transactions at prices determined in the market to avoid being subject to a forced liquidation at prices fixed by OCC.15 Proposed Section 27(b) provides that in the event of a default or insolvency and the requisite notice by a Clearing Member, positions of all Clearing Members will be liquidated to the maximum extent permitted by law and the By-Laws and Rules. The limitations on netting under OCC’s By-Laws and Rules are in general those mandated by applicable law, such as the Commission’s Rule 15c3–3. For example, where a Clearing Member carries both proprietary and customer account types netting across accounts could cause the Clearing Member to be in violation of Rule 15c3–3 and other customer protection rules. Accordingly, Section 27 generally provides for netting within and not across different accounts, with specific exceptions set forth in Section 27(d). In addition, CEA segregation rules require separate segregation of customer funds of futures customers. Accordingly, netting across futures segregated funds accounts and other accounts is also generally prohibited. Otherwise, the provisions of Section 27(d) are intended to maximize netting where consistent with customer protection rules. While securities market makers and specialists are generally not customers within the meaning of Rule 15c3–3, they are ordinarily ‘‘customers’’ within the meaning of the Commission’s hypothecation rules.16 OCC has historically not permitted setoff between market-maker accounts and customer accounts in which positions of other 14 Under proposed Section 27(b), the termination time would be the close of business on the third business day following a Clearing Member’s liquidation notice unless the Bankruptcy Code prescribes a different time. Under Section 502(b) of the Bankruptcy Code, claims against a debtor are valued as of the date of the filing of the bankruptcy petition, and accordingly in the event of a bankruptcy the termination time would be on the date of the filing of the petition. 15 Such activity of market participants could start at the time of OCC’s default notice rather than the time of the liquidation notice although as a practical matter a liquidation notice would likely closely follow the default notice. 16 17 CFR 240.8c–1 and 240.15c2–1. E:\FR\FM\29MYN1.SGM 29MYN1 Federal Register / Vol. 72, No. 102 / Tuesday, May 29, 2007 / Notices securities customers are carried. This separation has been preserved in Section 27(d)(3). The proposed rule change is consistent with Section 17A of the Act because it promotes the safeguarding of securities and funds and reduces costs to persons facilitating transactions by and on behalf of investors by providing Clearing Members that are a part of a CSE with the opportunity to reduce their applicable capital requirements. In addition, the proposed rule change would clarify the accounting treatment of obligations between OCC and each of its Clearing Members. The proposed rule change is not inconsistent with the rules of OCC, including any rules proposed to be amended. (B) Self-Regulatory Organization’s Statement on Burden on Competition OCC does not believe that the proposed rule change would impose any burden on competition. sroberts on PROD1PC70 with NOTICES (C) Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received from Members, Participants, or Others OCC received comments on the Prior Netting Filing from certain Clearing Members by telephone. These comments are discussed above under the heading ‘‘Prior Netting Filing and Clearing Member Comments.’’ A draft of the proposed rule change was submitted to the Dealer Accounting Committee of the Securities Industry Association for review, and the rule change as filed reflects certain comments made by the Committee. OCC has not otherwise solicited written comments on the Prior Netting Filing or this filing, and none have been received. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 35 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the self-regulatory organization consents, the Commission will: (A) By order approve the proposed rule change or (B) Institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views, and arguments concerning the foregoing, VerDate Aug<31>2005 20:45 May 25, 2007 Jkt 211001 including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments 29573 SMALL BUSINESS ADMINISTRATION [Disaster Declaration # 10859] Maine Disaster Number ME–00007 U.S. Small Business Administration. ACTION: Amendment 3. AGENCY: • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml) or • Send an e-mail to rulecomments@sec.gov. Please include File Number SR–OCC–2006–19 on the subject line. SUMMARY: This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Maine (FEMA–1693–DR), dated 4/25/2007. Paper Comments Incident: Severe Storms and Inland and Coastal Flooding. • Send paper comments in triplicate Incident Period: 4/15/2007 through 4/ to Nancy M. Morris, Secretary, 23/2007. Securities and Exchange Commission, DATES: Effective Date: 5/16/2007. 100 F Street, NE., Washington, DC Physical Loan Application Deadline 20549–1090. Date: 6/25/2007. All submissions should refer to File ADDRESSES: Submit completed loan Number SR–OCC–2006–19. This file applications to : U.S. Small Business number should be included on the subject line if e-mail is used. To help the Administration, Processing and Disbursement Center, 14925 Kingsport Commission process and review your Road, Fort Worth, TX 76155. comments more efficiently, please use only one method. The Commission will FOR FURTHER INFORMATION CONTACT: A. post all comments on the Commission’s Escobar, Office of Disaster Assistance, U.S. Small Business Administration, Internet Web site (https://www.sec.gov/ 409 3rd Street, SW., Suite 6050, rules/sro.shtml). Copies of the Washington, DC 20416. submission, all subsequent SUPPLEMENTARY INFORMATION: The notice amendments, all written statements of the President’s major disaster with respect to the proposed rule declaration for Private Non-Profit change that are filed with the organizations in the State of Maine, Commission, and all written dated 4/25/2007, is hereby amended to communications relating to the include the following areas as adversely proposed rule change between the Commission and any person, other than affected by the disaster. Primary Counties: those that may be withheld from the Washington public in accordance with the provisions of 5 U.S.C. 552, will be All other information in the original available for inspection and copying in declaration remains unchanged. the Commission’s Public Reference of Federal Domestic Assistance Number Section, 100 F Street, NE., Washington, 59008) DC 20549. Copies of such filing also will be available for inspection and copying Herbert L. Mitchell, at the principal office of OCC and on Associate Administrator for Disaster OCC’s Web site at https:// Assistance. www.optionsclearing.com. [FR Doc. E7–10198 Filed 5–25–07; 8:45 am] All comments received will be posted BILLING CODE 8025–01–P without change; the Commission does not edit personal identifying SMALL BUSINESS ADMINISTRATION information from submissions. You should submit only information that [Disaster Declaration # 10880] you wish to make available publicly. All submissions should refer to File Massachusetts Disaster # MA–00010 Number SR–OCC–2006–19 and should be submitted on or before June 19, 2007. AGENCY: U.S. Small Business Administration. For the Commission by the Division of ACTION: Notice. Market Regulation, pursuant to delegated authority.17 Florence E. Harmon, Deputy Secretary. [FR Doc. E7–10196 Filed 5–25–07; 8:45 am] BILLING CODE 8010–01–P 17 17 PO 00000 CFR 200.30–3(a)(12). Frm 00092 Fmt 4703 Sfmt 4703 SUMMARY: This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Massachusetts (FEMA–1701–DR), dated 5/16/2007. Incident: Severe Storms and Inland and Coastal Flooding. E:\FR\FM\29MYN1.SGM 29MYN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 72, Number 102 (Tuesday, May 29, 2007)]
[Notices]
[Pages 29569-29573]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10196]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55788; File No. SR-OCC-2006-19]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing of a Proposed Rule Change Relating to Close-Out 
Netting Procedures

May 21, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on October 10, 2006, The 
Options Clearing Corporation (``OCC'') filed with the Securities and 
Exchange Commission (``Commission'') and on May 15, 2007, amended the 
proposed rule change as described in Items I, II, and III below, which 
items have been prepared primarily by OCC. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The proposed rule change would amend OCC's By-Laws and Rules to 
provide for close-out netting procedures to be followed in the highly 
unlikely event that OCC becomes insolvent or otherwise defaults on its 
clearing obligations. The proposed rule would clarify the impact of 
transactions between OCC and its Clearing Members on the capital 
requirements applicable to Clearing Members and other affiliated 
entities on a consolidated basis.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, OCC included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. 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), 
(B), and (C) below, of the most significant aspects of such 
statements.\2\
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    \2\ The Commission has modified parts of these statements.

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[[Page 29570]]

(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

Background
    OCC has been asked by several of its Clearing Members to consider 
adopting a rule that would allow for close-out netting of obligations 
running between OCC and Clearing Members in the event of an OCC default 
or insolvency. Such a rule could reduce applicable capital requirements 
for a Clearing Member's parent company where the parent is a U.S. or 
non-U.S. bank or part of a Consolidated Supervised Entity (``CSE''). 
The absence of a netting agreement that would apply in a default or 
insolvency of OCC could cause the minimum capital requirement 
applicable to such a parent company and its subsidiaries on a 
consolidated basis to be substantially larger than it would be 
otherwise. In the absence of a netting agreement, applicable banking 
regulations generally prohibit offsetting the Clearing Member's 
obligations to OCC on short positions in options and on other 
obligations against the Clearing Member's credit exposure to OCC with 
respect to long options positions and other obligations of OCC. In 
addition, OCC believes that a close-out netting rule would clarify the 
accounting treatment of obligations between OCC and its Clearing 
Members.
    The proposed rule change is designed to allow Clearing Members to 
comply with international standards under the Basel Capital Accord 
adopted by the Basel Committee on Banking Supervision relating to 
bilateral netting (``Basel Netting Standards'').\3\ It is OCC's 
understanding that the capital rules applicable to most banks following 
the Basel Netting Standards require that an enforceable netting 
agreement be in place in order for mutual obligations between a 
Clearing Member that is a bank affiliate and a counterparty such as OCC 
to be treated on a net basis. The policy behind this requirement is to 
ensure that obligations that are treated on a net basis for capital 
purposes can actually be offset against one another in the event of the 
failure of the counterparty. In the absence of an enforceable netting 
agreement, there is concern that the representative of the failed 
counterparty (i.e., OCC in this scenario) might be able to ``cherry 
pick'' under applicable insolvency law by assuming the benefit of 
contracts representing an asset to the bankruptcy estate while 
rejecting contracts representing a liability. This would force the non-
defaulting counterparty (i.e., the Clearing Member in this scenario) to 
perform in full on its liabilities while sharing with other unsecured 
creditors in any amounts available for distribution from the bankruptcy 
estate to satisfy its claims. An enforceable netting agreement 
providing for so-called ``close-out netting'' in the event of a default 
or insolvency of OCC would avoid this potential result.
---------------------------------------------------------------------------

    \3\ For more information on the Basel Committee on Banking 
Supervision and the Basel Netting Standards, see of the Bank for 
International Settlement's Web site at https://www.bis.org.
---------------------------------------------------------------------------

    Chapter XI of OCC's Rules, Suspension of a Clearing Member, 
provides in considerable detail for liquidation of the accounts of an 
insolvent Clearing Member including provisions for close-out netting of 
the Clearing Member's obligations against its assets to the extent 
permitted by customer protection rules under the Act and under the 
Commodity Exchange Act (``CEA''). However, OCC's rules do not presently 
contain any provisions that specifically permit close-out netting in 
the event of a default or insolvency of OCC. Indeed, an OCC default or 
insolvency has always been considered so unlikely that OCC's rules do 
not contain any provisions whatever contemplating such events. OCC's 
management does not believe that an OCC default or insolvency has 
become any more likely. On the contrary, OCC's long track record of 
safe operation and continually improved methods of risk management 
suggest that such an event is more remote than ever. Nevertheless, the 
Basel Netting Standards make it desirable for OCC to put in place such 
a netting provision in order to clarify the capital requirements 
applicable on a consolidated basis to parent companies of Clearing 
Members that are subject to the Basel Netting Standards.
    The Basel Netting Standards are not directly applicable to the 
determination of net capital requirements for broker-dealers under 
Commission Rule 15c3-1.\4\ However, some Clearing Members are 
subsidiaries of banks or bank holding companies that are subject to the 
Basel Netting Standards when computing capital requirements on a 
consolidated basis. In addition, several of OCC's largest Clearing 
Members have volunteered to participate in the Commission's CSE 
program. Finally, as noted below, OCC believes that a close-out netting 
rule would also clarify the accounting treatment of obligations among 
OCC and its Clearing Members under FIN 39.\5\
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    \4\ 17 CFR 240.15c3-1.
    \5\ Financial Account Standards Board (``FASB'') Interpretation 
No. 39, Offsetting of Amounts Related to Certain Contracts. FIN 39 
specifies the circumstances in which assets and liabilities may be 
treated as offsetting in financial statements.
---------------------------------------------------------------------------

    The Basel Netting Standards and FIN 39 (collectively ``Netting 
Standards'') are stated in general terms and do not contain detailed 
requirements. OCC's proposed close-out netting procedures would, in the 
event of an OCC default or insolvency, expressly permit Clearing 
Members to treat their obligations to OCC on a net basis to the fullest 
extent consistent with the Commission's customer protection rules. 
However, the proposed rule change is also intended to protect the 
clearing system from being thrown out of balance or forced into a 
disorderly liquidation by a single Clearing Member's exercise of 
netting rights. Unlike typical, purely bilateral OTC derivatives 
relationships, OCC's contractual rights and obligations--while 
bilateral between OCC and any individual Clearing Member--represent a 
balanced structure in which every obligation owed by OCC to a Clearing 
Member is in turn matched by a corresponding obligation of a Clearing 
Member to OCC. The creation of individually exercisable netting rights 
that could be exercised independently by each Clearing Member in the 
event of an OCC default or insolvency could result in unfairness if no 
coordination is imposed.
The Basel Netting Standards
    The Basel Netting Standards are contained in Basel II: 
International Convergence of Capital Measurement and Capital Standards: 
A Revised Framework--Comprehensive Version (June 2006) (``Basel II 
Accord''). The Basel Netting Standards provide that a bank \6\ may net 
transactions subject to any legally valid form of bilateral netting, 
including netting of bilateral obligations arising from novation, if 
the bank satisfies its national supervisor that it has a netting 
contract with the counterparty ``which creates a single legal 
obligation, covering all included transactions, such that the bank 
would have either a claim to receive or obligation to pay only the net 
sum of the positive and negative mark-to-market values of included 
individual transactions in the event a counterparty fails to perform 
due to any * * * default, bankruptcy, liquidation or similar 
circumstances.'' \7\
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    \6\ These same standards are also applied to bank holding 
companies.
    \7\ Basel Committee on Banking Supervision, Basel Capital 
Accord: Treatment of Potential Exposure for Off-Balance Sheet Items 
(April 1995), at Annex, p.4. The relevant bilateral netting 
standards under this 1995 publication were not overridden by the 
Basel II Accord. See also Basel II Accord at p.213. Basel II also 
allows cross-product netting.

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[[Page 29571]]

    The Basel Netting Standards also require that the bank have certain 
``written and reasoned legal opinions that, in the event of a legal 
challenge, the relevant courts and administrative authorities would 
find the bank's exposure to be the net amount.'' The national 
supervisor must be satisfied that the netting is enforceable under the 
laws of each relevant jurisdiction. The proposed close-out netting 
procedures are intended to support such an opinion.
    The Basel Netting Standards have been incorporated in applicable 
bank regulatory laws or regulations in various jurisdictions. For 
example, the substance of this standard appears in Article 12f of the 
Swiss Banking Ordinance. It has also been incorporated into the capital 
guidelines for various U.S. financial institutions.\8\
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    \8\ See e.g., Regulations of the Office of the Comptroller of 
the Currency applicable to national banks set forth at 12 CFR. Part 
3, Appendix A (adopted July 1, 2002), section (3)(b)(5)(ii)(B).
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FDICIA and Bankruptcy Code
    The proposed close-out netting procedures are designed to take 
advantage of the netting provisions of Title IV of the Federal Deposit 
Insurance Corporation Improvement Act of 1991 (``FDICIA'') and the 
applicable provisions of the United States Bankruptcy Code. Section 404 
of FDICIA generally validates netting contracts among members of 
clearing organizations notwithstanding any other provision of law.\9\ 
In order to qualify for this benefit, the ``netting contract'' must be 
between ``members'' of a ``clearing organization,'' as each of these 
terms is defined in FDICIA. OCC meets the definition of ``clearing 
organization'' under FDICIA, and both it and its Clearing Members meet 
the definition of ``members.'' Under FDICIA, the rules of a clearing 
organization are expressly included within the definition of ``netting 
contract.'' Accordingly, under Section 404 of FDICIA, the netting 
provisions of OCC's By-Laws and Rules, including the proposed revised 
netting procedures, will be given effect in the event of OCC's default 
or insolvency.
---------------------------------------------------------------------------

    \9\ 12 U.S.C. 4403.
---------------------------------------------------------------------------

    Section 362(b) of the United States Bankruptcy Code \10\ exempts 
from the automatic stay provisions of the Code the setoff by, among 
other parties, stockbrokers, commodity brokers or clearing agencies, of 
mutual debts or claims under commodity or securities contracts. This 
section preserves OCC's ability to net obligations between OCC and a 
suspended Clearing Member and similarly would protect the ability of 
Clearing Members to net obligations under the proposed netting 
procedures in the event of OCC's default or insolvency. In addition, 
the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 
(``BAPCPA'') \11\ added to the Bankruptcy Code new subsection 362(o) 
which provides that the right of setoff and other relevant rights may 
not be stayed by any order of a court or administrative agency in any 
proceeding under the Bankruptcy Code.\12\ This was a significant 
expansion of the protections for financial contracts under the 
Bankruptcy Code.
---------------------------------------------------------------------------

    \10\ 11 U.S.C. 362(b).
    \11\ Public Law 109-8, 119 Stat. 23 (2005).
    \12\ 11 U.S.C. 362(o).
---------------------------------------------------------------------------

Prior Netting Filing and Clearing Member Comments
    OCC previously submitted and subsequently withdrew a proposed rule 
change with respect to close-out netting (``Prior Netting 
Filing'').\13\ After reviewing the Prior Netting Filing, some Clearing 
Members questioned whether the netting procedures set forth in that 
filing satisfied the Netting Standards. Specifically, Clearing Members 
questioned whether:
---------------------------------------------------------------------------

    \13\ File No. SR-OCC-2005-17.

    1. The definition of insolvency in the Prior Netting Filing, 
which covered only voluntary or involuntary cases under Chapter 7, 
needed to be expanded to include other types of bankruptcies, 
particularly Chapter 11 cases, and non-bankruptcy defaults;
    2. The procedures set forth in the Prior Netting Filing complied 
with the Netting Standards in light of the inability of the Clearing 
Members, as the non-defaulting parties, to initiate the netting 
process; and
    3. The proposed procedures gave Clearing Members the ability to 
promptly net and close out positions as required to comply with the 
Netting Standards given the degree of control that OCC reserved to 
itself in the process.

    After considering the Clearing Members' comments, OCC withdrew the 
Prior Netting Filing and made modifications to the proposed netting 
provisions which are reflected in the current filing. The primary 
differences between the currently-proposed close-out netting procedures 
and those contained in the Prior Netting Filing is that the currently-
proposed procedures:

    1. Significantly expand the definition of insolvency to include 
non-bankruptcy defaults, specifically any failure by OCC to comply 
with an undisputed obligation to deliver money or property to a 
Clearing Member for a period of thirty days after the obligation 
becomes due, and to include bankruptcy or insolvency proceedings 
under statutory provisions other than Chapter 11 of the U.S. 
Bankruptcy Code;
    2. Provide that upon the occurrence of an event of default or 
insolvency, any Clearing Member that is neither suspended nor in 
default with regard to an obligation of OCC may provide a notice to 
OCC of its intention to terminate all cleared contracts and stock 
loan and borrow positions in all of its accounts; and
    3. Establish a fixed termination time for all cleared contracts 
and stock loan and borrow positions, which would be the close of 
business on the third business day after OCC's receipt of the 
prescribed notice from a Clearing Member, unless a different time is 
mandated by the Bankruptcy Code, and to provide that the liquidation 
settlement date will occur as promptly as practicable after the 
termination time; (the original provisions granted OCC the 
discretion to establish the termination time and provided that the 
liquidation settlement date would occur no earlier than the business 
day following the termination date).

    OCC believes that the above modifications address the Clearing 
Members' concerns while still permitting the liquidation process to 
proceed in an orderly manner and for the clearance system to remain in 
balance.
Overview of Proposed Rule Change
    The proposed rule change consists of a single new Section 27, 
Close-Out Netting, of Article VI of OCC's By-Laws, Clearance of 
Exchange Transactions. Consistent with the requirements of the Basel 
Netting Standards, the netting provision would be applicable in the 
event that OCC fails to perform its obligations with respect to cleared 
contracts as the result of defaults by OCC in performing its 
obligations under its rules, or as the result of bankruptcy, a 
liquidation of OCC or similar circumstances. The proposed close-out 
netting procedures are drafted in such a way that they would only be 
triggered by an event of default, as defined in new Section 27(a). The 
rule would not be triggered by any delay in performance that is 
permitted under OCC's By-Laws or Rules. For example, Section 19 of 
Article VI permits OCC to take specified actions, including suspension 
of settlement obligations, in the event of a shortage of underlying 
securities. These delays would not be considered an event of default 
under Section 27 and therefore would not allow a Clearing Member to 
initiate the close-out netting procedures. In the event of such delays 
OCC would notify Clearing Members of the reason for the delay.
    Under the proposed close-out netting procedures, in the event of a 
default or insolvency by OCC, OCC would be

[[Page 29572]]

required to provide notice of the default or insolvency to the 
Commission, the CFTC, all Clearing Members, any clearing organizations 
with which OCC has cross-margining or cross-guarantee agreements, and 
all markets for which OCC clears transactions. The proposed procedures 
further provide that in the event of an OCC default, any Clearing 
Member, so long as it is not suspended or in default, may provide a 
written notice to OCC of its intent to initiate the liquidation process 
with regard to its own contracts and stock loan and borrow positions. 
This notice would, however, trigger a liquidation of cleared contracts 
and positions of all Clearing Members. This procedure is necessary 
because liquidating contracts and positions of less than all Clearing 
Members would result in an imbalance of the clearing system and 
therefore be unworkable. The proposed procedures establish the close of 
business on the third business day after OCC's receipt of the 
liquidation notice from a Clearing Member as the termination time, 
unless the Bankruptcy Code prescribes a different time.
    The proposed close-out netting procedures provide that when a 
triggering event occurs, rights and obligations within and between 
accounts of each Clearing Member will be netted to the same extent as 
if the Clearing Member had been suspended and its accounts were being 
liquidated under Chapter XI of the Rules. This is an appropriate result 
in that those rules generally provide for the netting of assets against 
liabilities to the extent permitted under applicable law, including the 
customer protection rules referred to above. Assets remaining after all 
legally permissible offsets would be returned to the Clearing Member 
entitled to them, and the Clearing Member would remain obligated to OCC 
only to the extent of any remaining net liabilities following such 
permitted offsets.
    If close-out netting were ever required because of the default or 
insolvency of OCC, it seems likely that there would be no market 
available in which to liquidate positions in cleared contracts through 
market transactions. Accordingly, the proposed procedures contain a 
provision for valuation of open cleared contracts based upon market 
values of underlying interests and provide a reasonable means for OCC 
to fix all necessary values of assets and liabilities for purposes of 
the netting. Under the procedures, OCC is to provide valuations as 
promptly as practicable, but in any event within thirty days of the 
termination time. Valuations would be based upon available market 
information.
FIN 39: Offsetting of Amounts Related to Certain Contracts
    In addition to the potential benefit of the proposed close-out 
netting procedures with respect to capital requirements applicable to 
certain Clearing Members and their affiliates on a consolidated basis 
under the Basel Netting Standards, OCC believes that the proposed 
close-out netting procedures should also clarify the accounting 
treatment of mutual obligations running between OCC and its Clearing 
Members. OCC's Clearing Members most commonly prepare their financial 
statements using United States generally accepted accounting principles 
(``US GAAP''). FIN 39 responds to certain questions relating to the 
circumstances in which assets and liabilities may be treated as 
offsetting in financial statements. FIN 39 is an interpretation of 
Accounting Principles Board (``APB'') Opinion No. 10 which states: ``It 
is a general principle of accounting that the offsetting of assets and 
liabilities in the balance sheet is improper except where a right of 
setoff exists.'' FIN 39 provides a definition of a right of setoff and 
a statement of the conditions under which a right of setoff exists. The 
definition is as follows: ``A right of setoff is a debtor's legal 
right, by contract or otherwise, to discharge all or a portion of the 
debt owed to another party by applying against the debt an amount that 
the other party owes to the debtor.'' FIN 39, paragraph 5 contains the 
following four conditions under which a right of setoff exists:
    (a) Each of two parties owes the other determinable amounts. 
[Emphasis in original.]
    (b) The reporting party has the right to set off the amount owed 
with the amount owed by the other party.
    (c) The reporting party intends to set off.
    (d) The right of setoff is enforceable at law.

It is the obligation of Clearing Members to determine their application 
of U.S. GAAP but we expect that proposed new Section 27 will allow them 
to conclude that conditions (a), (b), and (d) will be met. (Condition 
(c) deals with intent which is a factual question.)
Discussion of Specific Provisions of Section 27
    The text of proposed new Section 27 of Article VI of the By-Laws is 
largely self-explanatory in light of the foregoing discussion of its 
purpose. A few comments may nevertheless be helpful.
    Under proposed Sections 27(a) and (b), if OCC should ever give 
notice of its default or insolvency and a Clearing Member in turn 
provide a notice of termination, the termination time may be later than 
the time at which a Clearing Member's liquidation notice is given.\14\ 
This leaves open at least the theoretical possibility that, if there 
are trading days or hours left between the time the notice is given and 
the termination time, market participants could attempt to engage in 
closing transactions at prices determined in the market to avoid being 
subject to a forced liquidation at prices fixed by OCC.\15\
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    \14\ Under proposed Section 27(b), the termination time would be 
the close of business on the third business day following a Clearing 
Member's liquidation notice unless the Bankruptcy Code prescribes a 
different time. Under Section 502(b) of the Bankruptcy Code, claims 
against a debtor are valued as of the date of the filing of the 
bankruptcy petition, and accordingly in the event of a bankruptcy 
the termination time would be on the date of the filing of the 
petition.
    \15\ Such activity of market participants could start at the 
time of OCC's default notice rather than the time of the liquidation 
notice although as a practical matter a liquidation notice would 
likely closely follow the default notice.
---------------------------------------------------------------------------

    Proposed Section 27(b) provides that in the event of a default or 
insolvency and the requisite notice by a Clearing Member, positions of 
all Clearing Members will be liquidated to the maximum extent permitted 
by law and the By-Laws and Rules. The limitations on netting under 
OCC's By-Laws and Rules are in general those mandated by applicable 
law, such as the Commission's Rule 15c3-3. For example, where a 
Clearing Member carries both proprietary and customer account types 
netting across accounts could cause the Clearing Member to be in 
violation of Rule 15c3-3 and other customer protection rules. 
Accordingly, Section 27 generally provides for netting within and not 
across different accounts, with specific exceptions set forth in 
Section 27(d). In addition, CEA segregation rules require separate 
segregation of customer funds of futures customers. Accordingly, 
netting across futures segregated funds accounts and other accounts is 
also generally prohibited. Otherwise, the provisions of Section 27(d) 
are intended to maximize netting where consistent with customer 
protection rules. While securities market makers and specialists are 
generally not customers within the meaning of Rule 15c3-3, they are 
ordinarily ``customers'' within the meaning of the Commission's 
hypothecation rules.\16\ OCC has historically not permitted setoff 
between market-maker accounts and customer accounts in which positions 
of other

[[Page 29573]]

securities customers are carried. This separation has been preserved in 
Section 27(d)(3).
---------------------------------------------------------------------------

    \16\ 17 CFR 240.8c-1 and 240.15c2-1.
---------------------------------------------------------------------------

    The proposed rule change is consistent with Section 17A of the Act 
because it promotes the safeguarding of securities and funds and 
reduces costs to persons facilitating transactions by and on behalf of 
investors by providing Clearing Members that are a part of a CSE with 
the opportunity to reduce their applicable capital requirements. In 
addition, the proposed rule change would clarify the accounting 
treatment of obligations between OCC and each of its Clearing Members. 
The proposed rule change is not inconsistent with the rules of OCC, 
including any rules proposed to be amended.

(B) Self-Regulatory Organization's Statement on Burden on Competition

    OCC does not believe that the proposed rule change would impose any 
burden on competition.

(C) Self-Regulatory Organization's Statement on Comments on the 
Proposed Rule Change Received from Members, Participants, or Others

    OCC received comments on the Prior Netting Filing from certain 
Clearing Members by telephone. These comments are discussed above under 
the heading ``Prior Netting Filing and Clearing Member Comments.'' A 
draft of the proposed rule change was submitted to the Dealer 
Accounting Committee of the Securities Industry Association for review, 
and the rule change as filed reflects certain comments made by the 
Committee. OCC has not otherwise solicited written comments on the 
Prior Netting Filing or this filing, and none have been received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve the proposed rule change or
    (B) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml) or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number SR-OCC-2006-19 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-OCC-2006-19. This file 
number should be included on the subject line if e-mail 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 Web site (https://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change 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 inspection and 
copying in the Commission's Public Reference Section, 100 F Street, 
NE., Washington, DC 20549. Copies of such filing also will be available 
for inspection and copying at the principal office of OCC and on OCC's 
Web site at https://www.optionsclearing.com.
    All comments received will be posted without change; the Commission 
does not edit personal identifying information from submissions. You 
should submit only information that you wish to make available 
publicly. All submissions should refer to File Number SR-OCC-2006-19 
and should be submitted on or before June 19, 2007.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\17\
---------------------------------------------------------------------------

    \17\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-10196 Filed 5-25-07; 8:45 am]
BILLING CODE 8010-01-P

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