Self-Regulatory Organizations; the Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning the Options Clearing Corporation's Escrow Deposit Program, 60099-60108 [2016-20882]

Download as PDF Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days from the date of filing. However, Rule 19b– 4(f)(6)(iii) 17 permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Commission notes that it recently approved BOX’s substantially similar proposal to list and trade Wednesday SPY Expirations.18 The Exchange has stated that waiver of the operative delay will allow the Exchange to list and trade Wednesday SPY Expirations as soon as possible, and therefore, promote competition among the option exchanges. For these reasons, the Commission believes that the proposed rule change presents no novel issues and that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest, and will allow the Exchange to remain competitive with other exchanges. Therefore, the Commission hereby waives the 30-day operative delay and designates the proposal effective upon filing.19 At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or 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: mstockstill on DSK3G9T082PROD with NOTICES Electronic Comments • Use the Commission’s Internet comment form (http://www.sec.gov/ rules/sro.shtml); or 21:59 Aug 30, 2016 Jkt 238001 Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–BatsBZX–2016–53. 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 Web site (http://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 Web site 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 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– BatsBZX–2016–53 and should be submitted on or before September 21, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.20 Brent J. Fields, Secretary. [FR Doc. 2016–20964 Filed 8–30–16; 8:45 am] days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. The Exchange has satisfied this requirement. 17 17 CFR 240.19b–4(f)(6)(iii). 18 See supra note 5. 19 For purposes only of waiving the 30-day operative delay, the Commission has also considered the proposed rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). VerDate Sep<11>2014 • Send an email to rule-comments@ sec.gov. Please include File Number SR– BatsBZX–2016–53 on the subject line. BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–78675; File No. SR–OCC– 2016–009] Self-Regulatory Organizations; the Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning the Options Clearing Corporation’s Escrow Deposit Program August 25, 2016. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on August 15, 2016, The Options Clearing Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change 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 proposed rule change from interested persons. I. Clearing Agency’s Statement of the Terms of Substance of the Proposed Rule Change The purpose of this proposed rule change by OCC is to improve the resiliency of OCC’s escrow deposit program. OCC is proposing changes that are designed to: (1) Increase OCC’s visibility into and control over collateral deposits made under the escrow deposit program; (2) strengthen clearing members’ rights to collateral in the escrow deposit program in the event of a customer default to the clearing member; (3) provide more specificity concerning the manner in which OCC or clearing members would take possession of collateral in OCC’s escrow deposit program; and (4) improve the readability of the rules governing OCC’s escrow deposit program by consolidating all such rules into a single location in OCC’s Rulebook. II. Clearing Agency’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 these statements. 1 15 20 17 PO 00000 CFR 200.30–3(a)(12). Frm 00124 Fmt 4703 Sfmt 4703 60099 2 17 E:\FR\FM\31AUN1.SGM U.S.C. 78s(b)(1). CFR 240.19b–4. 31AUN1 60100 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices mstockstill on DSK3G9T082PROD with NOTICES (A) Clearing Agency’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of this proposed rule change is to improve the resiliency of OCC’s escrow deposit program. The changes would: (1) Increase OCC’s visibility into and control over collateral deposits made under the escrow deposit program; (2) provide more specificity concerning the manner in which OCC would take possession of collateral in OCC’s escrow deposit program in the event of a clearing member or custodian bank default; (3) clarify clearing members’ rights to collateral in the escrow deposit program in the event of a customer default to the clearing member; and (4) improve the readability of the rules governing OCC’s escrow deposit program by consolidating all such rules into a single location in OCC’s Rulebook. Upon implementation of the proposed rule change, all securities collateral in OCC’s escrow deposit program would be held at the Depository Trust Company (‘‘DTC’’), and custodian banks would only be allowed to hold cash collateral. The narrative below is comprised of four sections. The first section provides a background of OCC’s current escrow deposit program as well as an overview of the proposed changes to the rules and agreements that govern the escrow deposit program. The second section discusses the changes associated with: (1) Increasing OCC’s visibility into and control over collateral deposits made under the escrow deposit program; (2) providing more specificity concerning the manner in which OCC would take possession of collateral in OCC’s escrow deposit program in the event of a clearing member or custodian bank default; and, (3) clarifying clearing members’ rights to collateral in the escrow deposit program in the event of a customer default to the clearing member as well as providing additional detail concerning the manner in which clearing members may take possession of such collateral. The third section discusses proposed technical and conforming changes to the rules and agreements governing the current escrow deposit program that would allow OCC to consolidate all such terms into a single location in OCC’s Rulebook. The second and third sections also discuss changes that improve the readability of the rules governing OCC’s escrow deposit program, which is primarily achieved by consolidating all such rules into a single location in OCC’s Rulebook. The fourth section discusses the manner in VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 which OCC proposes to transition from the current escrow deposit program to the new escrow deposit program, including the removal of certain rules and contractual provisions that would no longer be applicable to the new escrow deposit program. program, the relevant positions are excluded from the clearing member’s margin requirement at OCC. The escrow deposit program therefore provides users of OCC’s services with a means to more efficiently use cash or securities they may have available. Section 1: Background and Overview of Proposed Rule Changes Overview of Rule Changes (Including Terminology Changes) and New Agreements Background/Current Escrow Deposit Program Each day OCC collects collateral from its clearing members in order to protect OCC and the markets it serves from potential losses stemming from a clearing member default. Approximately half of the collateral deposited by clearing members at OCC is deposited through OCC’s escrow deposit program. Users of OCC’s escrow deposit program are customers of clearing members who, through the escrow deposit program, are permitted to collateralize eligible positions directly with OCC (instead of with the relevant clearing member who would, in turn, deposit margin at OCC). Currently, collateral deposits made through OCC’s escrow deposit program are characterized as either ‘‘specific deposits’’ or ‘‘escrow deposits.’’ Specific deposits are deposits of the security underlying a given options position and are made through DTC by a clearing member on behalf of its customer (at the direction of the customer).3 Escrow deposits are deposits of cash or securities made by a custodian bank on behalf of a customer of an OCC clearing member in support of an eligible options position. OCC’s Rules currently contemplate two forms of escrow deposits: ‘‘third-party escrow deposits’’ and ‘‘escrow program deposits.’’ Thirdparty escrow deposits are substantially similar to specific deposits except for the fact that third-party escrow deposits are made by a custodian bank, and not a clearing member. Third-party escrow deposits consist entirely of securities and, like specific deposits, are made through DTC. In order to effect thirdparty specific deposits, custodian banks must be DTC members. Escrow program deposits are bank deposits of eligible securities or cash, which are held at the custodian bank (versus third-party escrow deposits and specific deposits, which are held at DTC). When a customer of a clearing member makes a deposit in lieu of margin through OCC’s escrow deposit 3 For example, if customer XYZ holds a short position of options on AAPL, customer XYZ could, through its clearing member’s DTC account, pledge shares of AAPL to OCC in order to collateralize such options position and not be charged margin by OCC. PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 Rule Consolidation and Terminology Changes Currently, the rules concerning OCC’s escrow deposit program are located in OCC Rules 503, 610, 613 and 1801. Additionally, OCC and custodian banks participating in OCC’s escrow deposit program enter into an Escrow Deposit Agreement (‘‘EDA’’), which also contains substantive provisions governing the program. OCC is proposing to consolidate all of the rules concerning the escrow deposit program, including the provisions of the EDA relevant to the revised escrow deposit program, into proposed Rules 610, 610A, 610B and 610C.4 OCC believes that consolidating the many rules governing the escrow deposit program into a single location would significantly enhance the understandability and transparency of the rules concerning the escrow deposit program for current users of the program as well as any persons that may be interested in using the program in the future. In connection with the above described rule consolidation, OCC is also proposing to rename the types of escrow deposits available within the escrow deposit program, as well as rename the term ‘‘approved depository’’ to ‘‘approved custodian.’’ Specific deposits would now be called ‘‘member specific deposits,’’ which are equity securities deposited by clearing members at DTC at the direction of their customers; third-party escrow deposits would now be called ‘‘third-party specific deposits,’’ which are equity securities deposited by custodian banks at DTC at the direction of their customers; and, escrow program deposits would now be called, ‘‘escrow deposits,’’ which are either cash deposits held at a custodian bank for the benefit of OCC, or Government securities deposited at DTC by custodian banks at the direction of their 4 As described herein, OCC is proposing to eliminate the EDA based on such consolidation. When appropriate, and as described in more detail below, conforming changes were made to certain Rules as a result of OCC proposing to require that all non-cash deposits in the escrow deposit program be made through DTC (and not held at custodian banks). E:\FR\FM\31AUN1.SGM 31AUN1 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices customers. The term ‘‘approved depository’’ would also be changed to ‘‘approved custodian’’ to eliminate any potential confusion with the term ‘‘Depository,’’ which is defined in the Rules, to mean DTC. mstockstill on DSK3G9T082PROD with NOTICES New Rule Organization With respect to the rules governing the escrow deposit program, proposed Rule 610 would set forth general terms and conditions common to all types of deposits permitted under the escrow deposit program. Specifically, proposed Rule 610: (1) Sets forth the different types of eligible positions for which a deposit in lieu of margin may be used, (2) sets forth operational aspects of the escrow deposit program such as the days and the times during which a deposit in lieu of margin may be made and where the different types of deposits in lieu of margin must be maintained (either DTC or a custodian bank), (3) provides the conditions under which OCC may take possession of a deposit in lieu of margin (from DTC or a custodian bank), and (4) describes OCC’s security interest in deposits in lieu of margin.5 Proposed Rule 610 is supplemented by: (1) Proposed Rule 610A for member specific deposits, (2) proposed Rule 610B for third-party specific deposits, and (3) proposed Rule 610C for escrow deposits. Proposed Rules 610A, 610B and 610C provide further guidance and specificity on the topics initially addressed in proposed Rule 610 (and delineated above) as they relate to member specific deposits, third-party specific deposits and escrow deposits, respectively. The new rule structure differs from the existing rule structure in that existing Rules 503, 610, 613 and 1801 discuss topics concerning deposits in lieu of margin (such as withdrawal, rollover 6 and release) in general terms and without regard to the type of deposit in lieu of margin. The existing rule structure also does not provide operational details of the escrow deposit 5 OCC would continue to maintain a perfected security interest in deposits in the escrow deposit program under the proposed Rules notwithstanding changes to the location of the rules that perfect such security interest. OCC’s security interest in securities deposits in the escrow deposit program, which are held at DTC, is perfected by operation of DTC’s rules. OCC’s security interest in cash deposits in the escrow deposit program is perfected under proposed Rules 610C(i), 610C(j) and 610C(k), which replace Sections 3.3, 3.4, 4.3, 4.4, 5.3, 5.4 and 21 of the EDA. Proposed Rule 610(g) also concerns OCC’s security interest in deposits in escrow deposit program. 6 A ‘‘roll-over’’ occurs when a customer chooses to maintain an existing escrow deposit after the options supported by the escrow deposit expires, or are closed-out, and the customer re-allocates the escrow deposit to a new options position. VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 program. The new rule structure discusses each aspect of OCC’s escrow deposit program by type of deposit in lieu of margin (member specific deposits, third-party specific deposit or escrow deposits) as well as provides operational details concerning the program. OCC believes that the more detailed presentation of the new rules concerning the escrow deposit program enhances the understandability of the program to all users, and potential users, of the program because all such persons will be able to better understand how topics apply by type of deposit in lieu of margin and with regard to the operational differences between each type of deposit in lieu of margin. Agreements Concerning the Escrow Deposit Program In addition to the above-described Rule changes, many provisions of the EDA would be moved into the Rules. Accordingly, OCC is proposing to eliminate the EDA and replace it with a simplified agreement entitled the ‘‘Participating Escrow Bank Agreement.’’ 7 The Participating Escrow Bank Agreement would provide that custodian banks are subject to all terms of the Rules governing the revised escrow deposit program,8 as they may be amended from time to time.9 The Participating Escrow Bank Agreement would contain eligibility requirements for custodian banks, including representations regarding the custodian bank’s Tier 1 Capital,10 and provide 7 The Participating Escrow Bank Agreement is attached to this filing as Exhibit 5A, with changes from the EDA marked. Custodian banks participating in the revised escrow deposit program are defined as ‘‘Participating Escrow Banks’’ in the Participating Escrow Bank Agreement, and such banks must also be an Approved Custodian pursuant to proposed Section 1.A(13) of OCC’s ByLaws. In addition, and as described above, certain provisions of the EDA are proposed to be incorporated into OCC’s Rules; however, no rights or obligations of either OCC or a custodian bank would change solely as a result of such an incorporation. 8 The Rules governing the revised escrow deposit program are proposed Rules 610, 610A, 610B and 610C. 9 Under the Participating Escrow Bank Agreement, however, OCC will agree to provide custodian banks with advance notice of material amendments to the Rules relating to deposits in lieu of margin and custodian banks will have the opportunity to withdraw from the escrow deposit program if they object to the amendments. As a general matter, the Participating Escrow Bank Agreement will not be negotiable, although OCC may determine to vary certain non-material terms in limited circumstances. 10 OCC recently enhanced the measurement it uses—Tier 1 Capital instead of shareholders’ equity—to establish minimum capital requirements for banks approved to issue letters of credit that may be deposited by clearing members as a form of margin asset. See Securities Exchange Act PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 60101 OCC with express representations concerning the bank’s authority to enter into the Participating Escrow Bank Agreement.11 Moreover, standard contractual provisions concerning topics such as assignment, governing law and limitation of liability have been enhanced in the Participating Escrow Bank Agreement when compared to the EDA.12 OCC is also proposing to move notification requirements into proposed Rule 610C(l), which is an enhancement of Section 7 of the EDA that requires custodian banks to provide notice to OCC only when there are changes to the ‘‘authorized persons’’ and changes to the address of the bank. Proposed Rule 610C(l) would require escrow banks to provide OCC with notices of material changes to the bank (in additional to items such as changes of authorized persons and the address of bank, as currently required under Section 7 of the EDA). OCC, under Proposed Rule 610C(b), would also require customers wishing to deposit cash collateral and custodian banks holding escrow deposits comprised of cash to enter into a triparty agreement involving OCC, the customer and the applicable custodian bank (‘‘Tri-Party Agreement,’’ attached hereto as Exhibit 5B). The Tri-Party Agreement governs the customer’s use of cash in the program, confirms the grant of a security interest in the customer’s account to OCC and the relevant clearing member, as set forth in proposed Rule 610C(f), and causes customers of clearing members to be subject to all terms of the Rules governing the revised escrow deposit program.13 Each custodian bank entering into the Tri-Party Agreement (‘‘Tri-Party Custodian Bank’’), would agree to follow the directions of OCC Release No. 74894 (May 7, 2015), 80 FR 27431 (May 13, 2015) (SR–OCC–2015–007). For the reasons set forth in SR–OCC–2015–007, OCC is proposing to adopt the same standard with respect to custodian bank escrow deposits. 11 These provisions include, but are not limited to, Sections 1.1 and 1.2 of the EDA. 12 Sections 2.1, 2.2, 3.5, 3.6, 3.8, 4.7, and 5.6, 6 and 7 of the EDA would be removed entirely since they are no longer needed under OCC’s revised escrow deposit program. These provisions concern a custodian bank’s movement of securities escrow collateral; such collateral would be deposited at DTC under the revised escrow deposit program (as described below). Section 2.3 of the EDA would also be removed in its entirety because escrow deposits would not be permitted for equity calls in the revised escrow deposit program. Additionally, the concept of cash settlements concerning escrow deposits would not be included in the revised escrow deposit program and, as a result, Sections 15, 16, 17 and 18(b) to 18(d) would be removed in their entirety. 13 The Rules governing the revised escrow deposit program are proposed Rules 610, 610A, 610B and 610C. E:\FR\FM\31AUN1.SGM 31AUN1 60102 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices with respect to cash escrow deposits without further consent by the customer.14 As discussed in greater detail below, use of the Tri-Party Agreement significantly enhances OCC’s rights concerning cash escrow deposits, and provides OCC with greater certainty regarding its rights to cash escrow deposits in the event of a customer or clearing member default. Section 2: Transparency and Controls, Taking Possession of Collateral, and Clearing Member Rights to Collateral mstockstill on DSK3G9T082PROD with NOTICES Transparency and Control Over Collateral Included in Escrow Deposits Currently, securities deposits in the escrow deposit program are held at either DTC or a custodian bank, and cash deposits in the escrow deposit program are held at a custodian bank. In the case of either cash or securities held at a custodian bank, OCC relies on the custodian bank to verify the value and control of collateral since OCC does not have any visibility into relevant accounts. OCC is proposing to require that all securities deposited within the escrow deposit program, regardless of the type of deposit, be held at DTC.15 Additionally, OCC is proposing to require Tri-Party Custodian Banks to provide OCC with view access into the account in which the deposit is held. Holding securities escrow deposit program collateral at DTC would provide OCC with increased visibility into the collateral within the escrow deposit program because OCC would be able to use its existing interfaces with DTC to view, validate and value collateral within the escrow deposit program in real time, allowing OCC to perform the controls for which it currently relies on the custodian banks. It would also provide OCC with the ability to obtain possession of deposited securities upon a clearing member default by issuing a demand of collateral instruction through DTC’s systems, without the need for custodian bank 14 OCC has determined to use this cash account structure as a result of a series of discussions with certain custodian banks involved in the cash portion of the escrow deposit program, as described in Item 5 below. The intended structure would permit a greater number of customers to participate in the escrow deposit program than, for example, a commingled ‘‘omnibus’’ account structure at each custodian bank, which would preclude the participation of customers subject to restrictions under the Investment Company Act of 1940 requiring segregation of a registered investment company’s funds. 15 OCC has discussed the proposed rule changes to the escrow deposit program with DTC and, based on feedback from DTC, no concerns were communicated to OCC by DTC regarding the proposed rule changes. DTC has also indicated that the proposed rule changes to the escrow deposit program are consistent with DTC’s operations. VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 involvement. Furthermore, a clearing member would have the ability to obtain possession of deposited securities upon a customer default in a similar manner by notifying OCC of such customer default and submitting a request for delivery of such deposited securities (OCC’s and clearing members’ ability to take possession of a deposit within the escrow deposit program is discussed in greater detail below). OCC does not believe that requiring use of DTC to deposit securities escrow collateral presents a material change for users of OCC’s escrow deposit program because such users currently use DTC to effect certain types of deposits in lieu of margin under the current escrow deposit program.16 Cash collateral pledged to support an escrow deposit would continue to be facilitated through the existing program interfaces; however, for increased security, any pledges of cash would be required to be made in a customer’s account at the Tri-Party Custodian Bank that is used solely for the purpose of making escrow deposits. As described above, under the proposed changes OCC would require Tri-Party Custodian Banks and customers to enter into a TriParty Agreement in order to provide legal certainty concerning this arrangement. Further, and as set forth in the Tri-Party Agreement, each Tri-Party Custodian Bank would agree to disburse funds from the pledged account only at OCC’s direction. From an operational perspective, each Tri-Party Custodian Bank would provide OCC with online view access to each customer’s cash account designated for the escrow deposit program, allowing visibility into transactional activity and account balances. OCC would not process a cash escrow deposit in its systems until it sees the appropriate amount of cash deposited in the designated bank account at the Tri-Party Custodian Bank. This process ensures that OCC does not rely on a third party to value, or warrant the existence of, collateral within the escrow deposit program. The Tri-Party Agreement, in connection with the new cash collateral structure, would provide OCC with additional transparency and control over cash collateral under the revised escrow deposit program. In order to effect the foregoing, OCC is proposing to adopt proposed Rules 610A(a), 610B(a), 610C(b) and 610C(c). Proposed Rules 610A(a) and 610B(a), Effecting a Member Specific Deposit and Effecting a Third-Party Specific Deposit, 16 Specifically, users of OCC’s escrow deposit program would use DTC’s Collateral Loan Services, which is described at: http://www.dtcc.com/ products/training/helpfiles/settlement/settlement_ help/help/collateral_loans.htm. PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 respectively, require that member specific deposits and third-party specific deposits must be made through DTC, and are largely based upon existing Rule 610(e), which discusses effecting deposits in lieu or margin generally. Language has been added to each proposed rule to more accurately articulate that member specific deposits and third-party specific deposits must be made through DTC and the party that is required to effect each type of deposit (i.e., a clearing member or a third-party depository). In the case of member specific deposits and third-party specific deposits, which are already made through DTC, OCC believes that proposed Rules 610A(a) and Rule 610B(a) are rules that clarify existing practices and provide additional operational detail to users of the escrow deposit program (i.e., member specific deposits and third-party specific deposits must be made through DTC’s EDP Pledge System and clearing members are required to maintain records of such deposits). Proposed Rules 610C(b) and 610C(c), Manner of Holding and Method of Effecting Escrow Deposits, respectively, are largely based upon existing Rules 610(d), 610(g), 1801(d) and 1801(g), as well as Section 8 of the EDA with language added to more accurately articulate that securities escrow deposits must be made through DTC and cash must be deposited through a Tri-Party Custodian Bank, and provide operational detail concerning effecting escrow deposits. Moreover, OCC is proposing to adopt new Rule 610(e) in order to specify that all types of deposits in the escrow deposit program may be made only during the time specified by OCC. The purpose of specifying the time frames in which participants are allowed to effect deposits in the escrow deposit program is to facilitate OCC daily margin processing and ensure that all of the positions it guarantees are timely collateralized.17 In addition to the above, and with respect to escrow deposits only, OCC is proposing enhancements to its process of ensuring that customers meet initial and maintenance minimums.18 Specifically, under the revised escrow deposit program, in the event a customer falls below the maintenance minimum, the custodian bank, pursuant 17 In the event a deposit in the escrow deposit program is not timely made, OCC would collect margin from the relevant clearing member. 18 Initial and maintenance minimums do not apply to member specific deposits and third-party specific deposits since the clearing member or custodian bank, as applicable, is pledging the security that is deliverable upon exercise of the germane options position. E:\FR\FM\31AUN1.SGM 31AUN1 mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices to the Participating Escrow Bank Agreement, would be required to ensure that the customer deposits additional collateral or escalate the matter to OCC. In addition to such notification requirement, OCC would also implement automated processes to ensure that escrow deposits meet required initial and maintenance minimums. In the event the matter is escalated to OCC or OCC’s systems identify a shortfall, OCC would: (1) Demand that the relevant clearing member post additional margin to cover the margin requirement on the applicable position, and (2) if the relevant clearing member fails to satisfy such a demand for additional margin, OCC would close-out the applicable position and demand the escrow deposit from DTC or the Tri-Party Custodian Bank, as applicable, under its existing authority pursuant to Rule 1106. This process is much more robust than the current process concerning maintenance minimums in that OCC currently relies entirely on custodian banks holding escrow deposits to ensure the customer deposits additional collateral, as necessary, to meet initial and maintenance minimums. OCC believes that the proposed new process is more streamlined and efficient because OCC would not have to rely entirely on a custodian bank to ensure customers comply with initial and maintenance minimums. In order to implement the foregoing within the new rules concerning the escrow deposit program, OCC is proposing to adopt Rules 610C(g) and 610C(h) that concern the initial and maintenance minimum escrow deposit values required by OCC as well as actions OCC is permitted to take in the event an escrow deposit falls below a required amount. These proposed rules are based on existing Rules 1801(c) and 1801(e) as well as Sections 3.2, 4.2, 5.2, 3.7, 4.8 and 5.7 of the EDA.19 With respect to the computation of initial and maintenance minimums, proposed Rules 610C(g) and 610C(h) would explain the formula through which OCC computes the initial and maintenance minimum for a given options position, with the specific percentage applicable to such calculation provided to participants in the escrow deposit program in a schedule posted on OCC’s Web site. With respect to the effects of a failure to meet maintenance 19 OCC is proposing to eliminate the concept of ‘‘substitutions’’ of escrow deposit collateral (located in Sections 4.7 and 5.6 of the EDA)—instead a given escrow deposit must at all times must meet the minimum amount (as set forth in proposed Rules 610(g)(1) and (2)) and OCC would permit any excess amount to be withdrawn. VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 minimums, proposed Rule 610C(h) sets forth the conditions under which OCC would close out a given escrow deposit should it fall below the requisite maintenance minimum. Proposed Rule 610C(h) would also provide OCC with the authority to use the cash and securities included within the escrow deposit to reimburse itself for costs incurred in connection with the closeout. OCC believes that by virtue of their proposed new location in the rules, as well as the additional detail provided in the proposed rules, all participants, and potential participants, in OCC’s escrow deposit program would better understand the rules concerning initial and maintenance minimums, as they relate to escrow deposits, under the enhanced escrow deposit program (versus under the current escrow deposit program). OCC’s Rights to Collateral in the Escrow Deposit Program in the Event of a Clearing Member or Bank Default The proposed Rules would enhance OCC’s default management regime as it relates to the escrow deposit program by more specifically delineating the conditions under, and the process through which, OCC would take possession of collateral within the escrow deposit program should a clearing member or custodian bank default. Specifically, proposed Rules 610A(b), 610B(f), 610C(q) and 610C(r) provide that in the event of a clearing member or custodian bank default OCC would have the right to direct DTC to deliver the securities included in a member specific deposit, third-party specific deposit or escrow deposit to OCC’s DTC participant account for the purpose of satisfying the obligations of the clearing member or reimbursing itself for losses incurred as a result of the failure, as applicable. Similarly, pursuant to proposed Rules 610C(q) and 610C(r) OCC would have the right in the event of a Tri-Party Custodian Bank default to take possession of cash included within an escrow deposit for the same purposes. In the event of a custodian bank default, pursuant to proposed Rule 610C(r) OCC would have the right to remove the custodian bank from the escrow deposit program, prohibit the custodian bank from making new escrow deposits, disallow withdrawals with respect to existing deposits, close out short positions covered by escrow deposits at the defaulted custodian bank and use such escrow deposits to reimburse itself for the costs of the close-out, or disregard or require the withdrawal of existing escrow deposits. PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 60103 Proposed Rules 610A(b), 610B(f) and 610C(q) concern OCC’s rights to member specific deposits, third-party specific deposits and escrow deposits, respectively, in the event of a clearing member default. They would provide a more specific description of OCC’s rights to a third-party specific deposit during a default than existing Rule 610(k) and Section 18 of the EDA. However, the additional specificity that would be provided in proposed Rules 610A(b), 610B(f) and 610C(q) would not change OCC’s nor clearing members’ rights or obligations regarding member specific, third-party specific or escrow deposits in the event of a clearing member default. Proposed Rule 610C(r) addresses OCC’s rights in the event of a custodian bank default and is based on existing Rules 613(h) and 1801(k). Proposed Rule 610C(r) would clarify OCC’s existing operational practices when a custodian defaults (i.e., demand monies, not allow new deposits, etc., as described immediately above), but does not change any of the rights of OCC, clearing members or custodian banks set forth in existing Rules 613(h) and 1801(k). In addition to the above-described proposed rule changes, OCC is proposing to amend Rule 1106 to set forth the treatment of deposits in the escrow deposit program in the event of a suspension of a clearing member. Rule 1106(b)(2) would be amended to provide that OCC may close out a short position of a suspended clearing member covered by a member specific, third-party specific or escrow deposit, subject to the ability of the suspended clearing member or its representative to transfer the short position to another clearing member under certain circumstances. Further, current Rule 1106(b)(3) would be combined with Rule 1106(b)(2) and amended to set forth OCC’s right to take possession of the cash and/or securities included within an escrow, member specific or third-party specific deposit for the purpose of reimbursing itself for costs incurred in connection with the closeout of a short position covered by the deposit. These proposed amendments to Rule 1106 are consistent with proposed Rules 610B(f), 610C(q) and 610C(r). Clearing Members’ Rights to Collateral in the Escrow Deposit Program Clearing members’ rights to escrow deposits and third-party specific deposits would be clarified under the proposed rules. While clearing members have secondary lien rights to the escrow deposits of their customers under the current escrow deposit program, OCC is proposing to add several rules that E:\FR\FM\31AUN1.SGM 31AUN1 mstockstill on DSK3G9T082PROD with NOTICES 60104 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices would clarify these rights and provide additional guidance to clearing members regarding operational steps that would need to be taken in order to exercise their secondary lien rights. Specifically, OCC is proposing to add Rules 610B(c) and 610C(f) to delineate the rights of a clearing member as they relate to third-party specific deposits and escrow deposits. Proposed Rules 610B(c) and 610C(f) would provide for the grant of a security interest by the customer to the clearing member with respect to any given third-party specific deposit and escrow deposit, as applicable. The Rules would further provide that any such security interest of a clearing member in an escrow deposit would be subordinated to OCC’s interest. For purposes of perfecting a clearing member’s security interest under the Uniform Commercial Code (‘‘UCC’’), OCC would obtain control over the security both on its own behalf and on behalf of the relevant clearing member, with clear subordination of the clearing member’s interest to OCC’s interest. In the event OCC had to direct delivery of the security to the clearing member, OCC would do so on the clearing member’s behalf. Proposed Rules 610B(c) and 610C(f) would better codify clearing members’ secondary lien rights to third-party specific deposits and escrow deposit than they are currently codified in Section 21 of the EDA, without changing any clearing member rights or obligations. OCC believes that such a codification would provide more transparency regarding clearing members’ secondary lien rights under the enhanced escrow deposit program because all users and potential users of OCC’s escrow deposit program would be able to easily identify and understand the rules concerning clearing members’ secondary lien rights in a single location within OCC’s publicly available Rulebook. Additionally, OCC is proposing to add several procedural rules that would set forth the process by which clearing members could exercise their secondary lien rights in a given deposit in the escrow deposit program. Proposed Rules 610C(d), 610C(o), 610C(p) and 610C(s), relating to escrow deposits, and proposed Rules 610B(d) and 610B(e), relating to third-party specific deposits, would provide that, in the event of a customer default to a clearing member, the clearing member would have the right to request a ‘‘hold’’ on a deposit. The hold would prevent the withdrawal of deposited securities or cash by a custodian bank or the release of a deposit that would otherwise occur in the ordinary course. Subsequent to VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 placing a hold instruction on a deposit, a clearing member would have the right to request that OCC direct delivery of the deposit to the clearing member through DTC’s systems in the case of securities, or an instruction to the TriParty Custodian Bank in the case of cash. Providing clearing members with transparent instructions regarding how to place a hold instruction on, and direct delivery of a deposit within the escrow deposit program, would significantly enhance the current escrow deposit program. OCC is also proposing to adopt Rules 610B(e) and 610C(s), which would protect OCC in the event that it delivers a third-party specific deposit or escrow deposit to a clearing member. Under proposed Rules 610B(e) and 610C(s), a clearing member making a request for delivery would be deemed to have made the appropriate representations to OCC that the clearing member has a right to take possession of the deposited securities or cash and would agree to indemnify OCC against losses resulting from a breach of these representations or the delivery of the deposit. A clearing member would also be required to provide documentation regarding its right to possession of the securities or cash as OCC may reasonably request. Section 3: Techincal[sic] and Conforming Changes to OCC’S Rules OCC also proposes a number of technical, conforming and structural changes in order to move the majority of the terms governing the escrow deposit program into one section in its Rulebook. OCC believes that changes to proposed Rules 610, 610A, 610B and 610C, described in greater detail below, are either non-substantive or conforming changes that do not alter the current rights or obligations of OCC, clearing members or participants in the escrow deposit program. Proposed Rule 610—Deposits in Lieu of Margin (General Provisions) Proposed Rule 610 contains general provisions applicable to the escrow deposit program. Specifically, proposed Rule 610(a) replaces existing Rule 610(a) and sets forth general provisions of the escrow deposit program including: (1) Who may participate in the escrow deposit program, (2) the types of positions included in the escrow deposit program, (3) the types of deposits in the escrow deposit program, and (4) the collateral that is eligible for the escrow deposit program. Proposed Rule 610(b) replaces existing Rule 610(b) and provides further specificity with respect to the types of options positions included within OCC’s escrow PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 deposit program.20 This additional specificity clarifies OCC’s existing rules and provides more transparency to users and potential users of OCC’s escrow deposit program. Proposed Rule 610(c), which is not derived from an existing rule, clarifies OCC’s existing practice that OCC will disregard a member specific deposit or a third-party specific deposit if such deposit is no longer eligible to be delivered upon the exercise of the associated stock option contract. Proposed Rule 610(d), which replaces existing Rules 610(c) and 1801(l), requires that deposits within the escrow deposit program be made in accordance with applicable laws and regulations, and be appropriately authorized. Proposed Rule 610(f), which replaces existing Rule 610(l), would clarify OCC’s right to use deposits within the escrow deposit program until such deposits are withdrawn. Proposed Rule 610(f) is supplemented by proposed Rules 610A, 610B and 610C with respect to member specific, thirdparty specific and escrow deposits. Proposed Rule 610(g) codifies OCC’s security interest in deposits within the escrow deposit program. Proposed Rule 610A—Member Specific Deposits Proposed Rule 610A clarifies many of the current rules concerning the escrow deposit program as they relate to member specific deposits. For example, proposed 610A(c) describes the process by which a clearing member may withdraw a member specific deposit (i.e., effecting a withdrawal or release through DTC’s EDP Pledge System and ensuring that its margin requirement at OCC is met). While this issue is addressed in existing Rule 610(j) in general terms, OCC believes that the additional operational details regarding its existing processes in proposed Rule 610A(c), along with its inclusion in proposed Rule 610A, further clarify how those existing processes apply to member specific deposits as opposed to other types of deposits in lieu of margin in existing Rule 610.21 Proposed Rule 610A(d) also establishes that member specific deposits may be ‘‘rolled-over,’’ a concept that is not specifically set forth in existing Rule 610 but has historically applied in connection with member specific deposits (formerly specific deposits). 20 As described in greater detail below, proposed Rules 610(a) and 610(b) are supplemented by proposed Rules 610A, 610B and 610C. 21 Proposed Rule 610A(c) supplements proposed Rule 610(f). E:\FR\FM\31AUN1.SGM 31AUN1 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices Proposed Rule 610B—Third-Party Specific Deposits Proposed Rule 610B clarifies many of the current rules concerning third-party specific deposits. For example, Proposed Rule 610B(b) addresses rollovers of a third-party specific deposit and replaces existing Rules 613(a) and Section 9 of the EDA, and articulates how to rollover third-party specific deposits by its inclusion within Rule 610B. Withdrawals and releases of third-party specific deposits are addressed in proposed Rule 610B(d), which is based on existing Rules 613(b) and 613(f). Specifically, releases and withdrawals of third-party specific deposits would be effected through DTC’s EDP Pledge System, subject to the clearing member’s margin requirement being met, the clearing member’s approval of the release or withdrawal, and the absence of a ‘‘hold’’ instruction. In addition, proposed Rule 610B(g) seeks to provide a more detailed description of the effect of a release of a third-party specific deposit than the applicable portions of existing Rule 613(i). mstockstill on DSK3G9T082PROD with NOTICES Proposed Rule 610C—Escrow Deposits Proposed Rule 610C, which is based on existing Rule 1801(a), would clarify the current rules concerning escrow deposits. For example, the introductory paragraph of proposed Rule 610C would provide a more detailed overview of a custodian bank’s role in the escrow deposit program, specifying such a bank’s role in effecting escrow deposits, and would describe eligible positions as they relate to escrow deposits. Proposed Rules 610C(a) through 610C(e) and proposed Rule 610C(t) concern eligible collateral, the manner in which escrow deposits are to be held, and withdrawing an escrow deposit and rolling over an escrow deposit. These operational rules are based on: (1) Existing Rules 610(g) and 1801(b) and Sections 3.1, 4.1 and 5.1 of the EDA with respect to eligible collateral (proposed Rule 610C(a)); (2) existing Rules 610(j) and 1801(i), and Sections 10 and 20 of the EDA with respect to withdrawing an escrow deposit (proposed Rule 610C(d)); (3) existing Rule 613(i) with respect to the effect of a release or withdrawal of an escrow deposit (proposed Rule 610C(t)); and (4) existing Rule 613(a) and Section 9 of the EDA with respect to rollovers of an escrow deposit (Proposed Rule 610C(e)). In order to provide additional transparency concerning representations that custodian banks are deemed to make when effecting an escrow deposit, OCC is proposing to move several VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 contractual provisions of the EDA into proposed Rules 610C(i), 610C(j) and 610C(k). Specifically: (1) Proposed Rule 610C(i), which concerns agreements and representations a custodian bank is deemed to have made when effecting an escrow deposit, is based upon Sections 1.6 and 4.6 of the EDA; (2) proposed Rule 610C(j), which concerns representations and warranties a custodian bank is deemed to make when giving an instruction to OCC and is based upon Sections 1.3, 1.4, 1.5, 1.6, 1.7 and 1.8 of the EDA; and (3) proposed Rule 610C(k), which concerns agreements a custodian bank is deemed to make when giving an instruction to OCC and is based upon Sections 4, 5 and 21 of the EDA. Moreover, and in addition to locating deemed representations of custodian banks in the Rules, proposed Rules 610C(i), 610C(j) and 610C(k) contain language that perfects OCC’s security interest in escrow deposits under Section 9 of the UCC, and replace Sections 3.3, 3.4, 4.3, 4.4, 5.3 and 5.4 of the EDA.22 OCC believes that by locating the abovedescribed provisions in the Rules, all users and potential users of OCC’s escrow deposit program would better understand the relationship between OCC and custodian banks. Proposed Rules 610C(m), 610C(n), 610C(o) and 610C(p) concern the exercise of options positions collateralized by escrow deposits and the release of escrow deposits upon expiration. As with other parts of proposed Rule 610C, OCC believes that the location of proposed Rules 610C(m), 610C(n), 610C(o) and 610C(p) provides all users and potential users of OCC’s escrow deposit program with a more transparent understanding of how exercises of options positions affect escrow deposits as well as the manner in which OCC would release an escrow deposit upon the expiration of an options position. Similar to other parts of Rule 610C, proposed Rules 610C(m), 610C(n), 610C(o) and 610C(p) are based on existing Rules of OCC as well as the EDA.23 Proposed Rule 610C(m) 22 The primary UCC-related provisions in the proposed Rules include Rules 610C(j)(1), 610C(j)(9) and 610C(k)(1), which provide for the perfection of OCC’s security interest in deposits consisting of securities under UCC Sections 9–106 and 9–314; Rules 610C(j)(1), 610C(j)(10), and 610C(k)(2), which provide for the perfection of OCC’s security interest in deposits consisting of cash under UCC Sections 9–104, 9–312 and 9–314; and Rules 610C(i)(1), 610C(i)(2) and 610C(j)(3), which support the first priority of OCC’s security interest by preventing competing liens or claims. 23 As discussed in Section 3 above, Rules 610C(n) and 610C(p) contain language that prevents the release of an escrow deposit in the event such deposit is subject to a hold instruction, which is a PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 60105 concerns reports OCC provides regarding escrow deposits and is based upon existing Rules 613(d) and 613(e) as well as Sections 11, 12 and 13 of the EDA. Proposed Rules 610C(n), 610C(o) and 610C(p), which concern assignments of exercises and releases of escrow deposits upon expiration is based upon existing Rules 613(f) and 1801(j) and Section 14 of the EDA. Section 4: Transition Period For the administrative convenience of clearing members, custodian banks and customers, the existing Rules governing deposits in lieu of margin would remain in effect, in parallel with the proposed Rules, for a transition ending November 30, 2017. During this transition period, deposits in lieu of margin could be made under either the existing Rules or the proposed Rules. This will eliminate the need of all clearing members to provide new collateral on a single date in the absence of a transition period. After the transition period, proposed Rules 610, 610A, 610B and 610C would provide the sole means of making deposits in lieu of margin and existing Rules 613 and 1801 would be removed from the Rulebook. In connection with the transition, existing Rule 610 would be re-designated as 610T to indicate that it is a temporary rule, and would become ineffective and removed after the transition period. Furthermore, following the transition period, existing Rule 503, which addresses instructions that call for the payment of a premium by or to the clearing member for whose account the deposit is made, would be removed from the Rules because these instructions would no longer be permitted under the revised escrow deposit program since this aspect of the program has not been used for a number of years.24 In addition, Government securities would be given full market value under the revised escrow deposit program and therefore existing Rule 610(h) would be removed from the Rules after the transition period. 2. Statutory Basis OCC believes that the proposed rule change is consistent with Section 17A(b)(3)(F) of the Act 25 because it would ensure the safeguarding of securities and funds which are in the custody and control of OCC. As described above, the proposed rule proposed enhancement to the escrow deposit program. 24 For the purposes of clarity, existing Rules 613(c), 613(g), 613(h), 613(j) address the same topic and would be removed from OCC’s Rulebook following the transition period without being migrated into a proposed Rule. 25 15 U.S.C. 78q–1(b)(3)(F). E:\FR\FM\31AUN1.SGM 31AUN1 mstockstill on DSK3G9T082PROD with NOTICES 60106 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices change would increase OCC’s visibility into and control over cash and securities deposits made in OCC’s escrow deposit program. Deposits in OCC’s escrow deposit program collateralize open securities positions guaranteed by OCC and protect OCC and market participants from the risk associated with a default of a clearing member. The proposed rule change would better ensure that OCC could verify that deposits of both cash and securities within OCC’s escrow deposit program sufficiently collateralize germane short options position(s). In addition, OCC would: (1) Be able to use its existing functionality with DTC to more quickly take possession of such deposits without involving custodian banks in the event of a clearing member default, and (2) obtain a contractual commitment from [sic] Tri-Party Custodian Bank that they would disperse cash within the escrow deposit program to OCC at OCC’s direction. OCC believes that these features of the revised escrow deposit program would reduce potential losses that may occur as a result of a clearing member default. As a result of the foregoing, the proposed rule change would better ensure the safeguarding of securities and funds that are in the custody and control of OCC. OCC also believes that the proposed rule change is consistent with Rule 17Ad–22(d)(3), which requires OCC to hold assets in a manner that minimizes risk of loss or delay or in access to them.26 Specifically, and with respect to non-cash collateral, all non-cash collateral in the escrow deposit program would be held at DTC thereby allowing OCC to validate and value collateral in real time and quickly obtain possession of deposited securities by issuing a transfer instruction through DTC’s systems in an event of default without involving custodian banks. With respect to cash collateral, all such collateral would be held in an escrow deposit program specific account at a Tri-Party Custodian Bank, OCC would have view access into such account, and OCC would obtain a contractual commitment from the Tri-Party Custodian Banks that they would disperse cash within the escrow deposit program to OCC at OCC’s direction. By more widely utilizing its existing infrastructure for non-cash collateral in the escrow deposit program, as well as by obtaining specific agreements regarding its right to take possession of cash collateral, OCC will be able to more quickly take possession of collateral in the escrow deposit program in the event of a clearing member default that would, in turn, reduce potential losses to OCC, other clearing members and market participants. Moreover, OCC believes that the proposed rule change is consistent with the requirement in Rule 17Ad–22(d)(11) 27 that clearing agencies establish, implement, maintain and enforce policies and procedures reasonably designed to make key aspects of their default procedures publicly available, because the substantive terms of the escrow deposit program, and specifically the rules concerning default management, would be incorporated into OCC’s Rules, which are publicly available on OCC’s Web site, rather than in private agreements. (B) Clearing Agency’s Statement on Burden on Competition The proposed rule change would reflect changes to the Rules governing OCC’s escrow deposit program and, more generally, amend the Rules to more clearly identify the three forms of deposits in lieu of margin: (1) Escrow deposits, (2) third-party specific deposits and (3) member specific deposits. The proposed rule change would impose a burden on competition that is necessary and appropriate in furtherance of the Act.28 In particular, a burden would be imposed on Tri-Party Custodian Bank[sic] in light of the requirement that cash included within an escrow deposit be held in an account of the relevant customer at the Tri-Party Custodian Bank pursuant to a Tri-Party Agreement. This requirement may limit certain custodian banks’ participation in the escrow deposit program because the escrow deposit program would now require a Tri-Party Custodian Bank to have the technological capability to allow both OCC and customers of clearing members to have view access into bank accounts within the escrow deposit program. However, OCC believes that the resulting burden on competition is both necessary and appropriate in furtherance of the Act because OCC’s view access into bank accounts within the escrow deposit program provides OCC additional transparency over cash collateral. As described in Item 3 above, by obtaining view access into bank accounts within the escrow deposit program OCC would not have to rely on Tri-Party Custodian Bank[sic] to value, or warrant the existence of, cash collateral within the escrow deposit program. OCC believes that obtaining such additional transparency over cash collateral is 27 17 26 17 CFR 240.17Ad–22(d)(3) VerDate Sep<11>2014 21:59 Aug 30, 2016 28 15 Jkt 238001 PO 00000 CFR 240.17Ad–22(d)(11). U.S.C. 78q–1(b)(3)(I). Frm 00131 Fmt 4703 Sfmt 4703 necessary and appropriate in furtherance of the Act. (C) Clearing Agency’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Communications With Custodian Banks In light of the substantial changes proposed to the escrow deposit program, OCC has sought to keep custodian banks informed regarding the proposed rule changes. These communications began in January and February 2012, when OCC notified each custodian bank of the proposal to restructure the escrow deposit program. As part of this notification, OCC informed each custodian bank of (1) OCC’s intention to require that security pledges be made through DTC, (2) the percentage of cash used in the escrow deposit program and (3) the potential elimination of cash deposits.29 In June through August 2012, OCC provided a PowerPoint presentation to each custodian bank summarizing proposed rule changes to the escrow deposit program. This presentation included an explanation of the reasons for the proposed rule changes, including the desire to enhance and strengthen the escrow deposit program and increase collateral transparency. The presentation also included a discussion of changes to the validation and valuation of collateral, and the calculation of contract quantities based on the collateral that has been pledged. In April and May 2013, OCC provided each custodian bank with an operational overview of the restructured escrow deposit program in the form of a PowerPoint presentation. This presentation covered: Eligible option types, types of eligible supporting collateral, required collateral value calculations for option contact coverage, valuation of supporting collateral, asset management locations/processing of supporting collateral, and validation and valuation of supporting collateral 29 While it was ultimately determined in April 2014 that cash collateral would remain in the escrow deposit program, prior discussions with participating escrow banks reflected the evolution of OCC’s decision on this point. For example, the PowerPoint presentation given to banks during June–August 2012 indicated that cash collateral would not be permitted in the escrow deposit program, while the PowerPoint presentation given during April–May 2013, as well as the draft rules distributed to participating escrow banks for comment in July–August 2013, indicated that it would be included. A number of current participants in the escrow deposit program use cash, some to a substantial degree, and OCC determined that the use of cash collateral should remain an essential aspect of the escrow deposit program. E:\FR\FM\31AUN1.SGM 31AUN1 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices and calculation of option contract coverage. In July and August 2013, OCC distributed a draft Participating Escrow Bank Agreement (as described below) and the related proposed OCC Rules to custodian banks along with a request for feedback. Following the receipt of questions and comments, OCC distributed ‘‘FAQ’’ responses to custodian banks. During September 2013, OCC provided a walkthrough of the functions of its ENCORE 30 system applicable to the enhanced escrow deposit program for custodian banks in order to provide an orientation of such functionality. In connection with the restructured escrow deposit program, clearing members will continue to use ENCORE to view member specific deposits, and custodian banks will use ENCORE to view third-party specific deposits and make escrow deposits consisting of cash. Moreover, OCC sent requests to custodian banks for validation of the DTC pledgor accounts to be used for the restructured escrow deposit program. In October 2013, OCC distributed escrow deposit program eligible securities file details to custodian banks. In February and March 2014, OCC arranged a series of calls with custodian banks to solicit feedback on a term sheet detailing cash account structures. Following the receipt of questions and comments, OCC distributed ‘‘FAQ’’ responses to custodian banks. mstockstill on DSK3G9T082PROD with NOTICES Comments Received From Custodian Banks As described above, OCC discussed the proposed rule changes to its escrow deposit program with custodian banks several times since 2012. While these discussions were generally informational in nature, custodian banks provided OCC with comments and questions in two instances: The July/August 2013 discussions and the February/March 2014 discussion. The primary focus of the comments in both sets of discussions was the manner in which custodian banks would be required to hold cash under the new escrow rules: In an omnibus structure or in a tri-party structure. The omnibus structure would provide OCC with an account in OCC’s name and thereby perfect OCC’s right under the UCC to take possession of cash escrow deposits in the event of a clearing member default. This would also eliminate the need for a separate tri-party agreement. 30 ENCORE is OCC’s real-time clearing and settlement system that allows clearing members to, among other things, post and view margin collateral as well as deposits in lieu of margin. VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 However, the omnibus structure was less desirable to custodian banks since all of a custodian bank’s OCC escrow deposit program clients’ assets would be comingled in a single account. From an operational perspective, a single omnibus account at a custodian bank is easier for OCC to manage since OCC would only need to have ‘‘view access’’ into one account at a custodian bank. On the other hand, custodian banks expressed privacy concerns with respect to several clients having view access into a single account. Eventually, OCC decided to use a triparty account structure for cash escrow deposits, with certain controls to alleviate the concerns on both sides. Specifically, custodian banks agreed to facilitate the execution of a form triparty agreement with each of its clients that participates in OCC’s escrow deposit program, which perfects OCC’s security interest in cash escrow deposits. Additionally, custodian banks agreed to establish an escrow specific cash account for each client so that OCC does not need to differentiate a client’s OCC escrow cash from the client’s nonescrow cash. OCC believes that the proposed structure for cash accounts strikes the appropriate balance between OCC’s desire for legal certainty as to its right to take possession of cash escrow deposits in the event of a clearing member default, and the operational desire to only have view access to a client’s OCC escrow deposit program cash account balance at a custodian bank. Additional comments OCC received from the July/August 2013 discussions with custodian banks centered on administrative items such as the escrow deposit program documentation structure and the manner in which custodian banks would post escrow deposits in OCC’s clearing system, ENCORE. As discussed above, OCC moved the substantial majority of its Amended and Restated On-Line Escrow Deposit Agreement into proposed Rule 610C in order to have the majority of escrow rules in one place. Custodian banks did not express any concerns regarding the operational steps necessary to post an escrow deposit in ENCORE once OCC provided custodian banks with a ‘‘walkthrough’’ of the operational process. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 45 days of the date of publication of this notice in the Federal Register or within such longer period up to 90 days (i) as the Commission may designate if it finds such longer period PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 60107 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 or disapprove 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 (http://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– OCC–2016–009 on the subject line. Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. All submissions should refer to File Number SR–OCC–2016–009. 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 Web site (http://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 Web site 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 such filings also will be available for inspection and copying at the principal office of OCC and on OCC’s Web site at http://www.theocc.com/components/ docs/legal/rules_and_bylaws/sr_occ_16_ 009.pdf. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You E:\FR\FM\31AUN1.SGM 31AUN1 60108 Federal Register / Vol. 81, No. 169 / Wednesday, August 31, 2016 / Notices should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–OCC–2016–009 and should be submitted on or before September 21, 2016. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.31 Robert W. Errett, Deputy Secretary. [FR Doc. 2016–20882 Filed 8–30–16; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–78685; File No. SR– NYSEMKT–2016–77] Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 900.2NY(18A) August 25, 2016. Pursuant to Section 19(b)(1) 1 of the Securities Exchange Act of 1934 (the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 notice is hereby given that, on August 12, 2016, NYSE MKT LLC (the ‘‘Exchange’’ or ‘‘NYSE MKT’’) filed with the Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule change as described in Items I and II below, which Items have been prepared by the self-regulatory organization. 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 Exchange proposes to amend Rule 900.2NY(18A). The proposed rule change is available on the Exchange’s Web site at www.nyse.com, at the principal office of the Exchange, and at the Commission’s Public Reference Room. mstockstill on DSK3G9T082PROD with NOTICES II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the self-regulatory organization included 31 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 15 U.S.C. 78a. 3 17 CFR 240.19b–4. 1 15 VerDate Sep<11>2014 21:59 Aug 30, 2016 Jkt 238001 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 those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of the filing is to amend Rule 900.2NY(18A), regarding the definition of a ‘‘Professional Customer,’’ to align the Exchange’s definition with that of competing options exchanges, as discussed below. The Exchange adopted the definition of a Professional Customer in 2010, after several other options exchanges added this definition.4 In doing so, the Exchange provided that a Professional Customer would ‘‘be treated in the same manner as a Broker/Dealer (or nonCustomer) in securities for the purposes’’ of various Exchange rules ‘‘and the Exchange’s schedule of fees.’’ 5 Recently, the Exchange amended its Professional Customer definition to align with rules of other markets.6 However, as part of the harmonization effort for a uniform definition of Professional Customer, the Exchange has determined that other options exchanges do not similarly include reference to their fee schedules in the definition of Professional Customer.7 Thus, to conform with the rules of other options exchanges, the Exchange proposes to modify Rule 900.2NY(18A) to delete the reference to the Exchange’s fee schedule. This change would allow the Exchange, like its competitors, to 4 See Securities Exchange Act Release No. 61818 (March 31, 2010), 75 FR 17457 (April 6, 2010) (SR– NYSEAmex–2010–18). See also id., at note 14 (citing the approval orders of other options exchanges). 5 See Rule 900.2NY(18A). 6 See Securities Exchange Act Release No. 77836 (May 16, 2016), 81 FR 31994 (May 20, 2016) (SR– NYSEMKT–2016–53). 7 See, e.g., NYSE Arca Rule 6.1A.(4A) (no reference to fee schedule in definition of Professional Customer); Nasdaq OMX PHLX (‘‘PHLX’’) Rule 1000 (b)(14) (same); Nasdaq Options Market (‘‘NOM’’) Chapter 1, Sec. 1(a)(48) (same); Bats BZX Exchange, Inc.’s (‘‘BZX’’) Rule 16.1(a)(46) (same); BOX Options Exchange LLC (‘‘BOX’’) Rule 100 (a)(50) (same); International Securities Exchange (‘‘ISE’’) Rule 100(a)(37A) (same); MIAX Options Exchange (‘‘MIAX’’) Rule 100 (same). PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 attract Professional Customer order flow with fees that differentiate Professional Customers from Broker/Dealers. The Exchange also proposes to make a non-substantive change to clarify the list of rules to which the Professional Customer definition applies, which would add clarity and transparency to Exchange rules. 2. Statutory Basis The proposed rule change is consistent with Section 6(b) 8 of the Securities Exchange Act of 1934 (the ‘‘Act’’), in general, and furthers the objectives of Section 6(b)(5),9 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. The proposed change would foster cooperation and coordination with persons engaged in facilitating transactions in securities as it would align Exchange rules with that of its competitors, which benefits investors and the public interest. By removing reference to the Exchange’s fee schedule from the definition of Professional Customer, the Exchange would, like its competitors, have the ability to attract Professional Customer order flow with fees that differentiate Professional Customers from Broker/Dealers. The proposed rule change would therefore remove impediments to and perfect the mechanism of a free and open market and a national market system by enabling the Exchange to structure its fees for Professional Customers competitively with the fees of other options exchanges. Further, the proposed changes are not unfairly discriminatory as the modified definition would apply to all similarlysituated ATP Holders that submit orders on behalf of Professional Customers. Finally, the non-substantive change to the Professional Customer definition would remove impediments to and perfect the mechanisms of a free and open market and a national market system, as it would add clarity and transparency to Exchange rules. 8 15 9 15 E:\FR\FM\31AUN1.SGM U.S.C. 78f(b). U.S.C. 78f(b)(5). 31AUN1

Agencies

[Federal Register Volume 81, Number 169 (Wednesday, August 31, 2016)]
[Notices]
[Pages 60099-60108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20882]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78675; File No. SR-OCC-2016-009]


Self-Regulatory Organizations; the Options Clearing Corporation; 
Notice of Filing of Proposed Rule Change Concerning the Options 
Clearing Corporation's Escrow Deposit Program

August 25, 2016.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on August 15, 2016, The Options Clearing Corporation (``OCC'') filed 
with the Securities and Exchange Commission (``Commission'') the 
proposed rule change 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 proposed rule change from interested 
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Clearing Agency's Statement of the Terms of Substance of the 
Proposed Rule Change

    The purpose of this proposed rule change by OCC is to improve the 
resiliency of OCC's escrow deposit program. OCC is proposing changes 
that are designed to: (1) Increase OCC's visibility into and control 
over collateral deposits made under the escrow deposit program; (2) 
strengthen clearing members' rights to collateral in the escrow deposit 
program in the event of a customer default to the clearing member; (3) 
provide more specificity concerning the manner in which OCC or clearing 
members would take possession of collateral in OCC's escrow deposit 
program; and (4) improve the readability of the rules governing OCC's 
escrow deposit program by consolidating all such rules into a single 
location in OCC's Rulebook.

II. Clearing Agency'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 these 
statements.

[[Page 60100]]

(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis 
for, the Proposed Rule Change

1. Purpose
    The purpose of this proposed rule change is to improve the 
resiliency of OCC's escrow deposit program. The changes would: (1) 
Increase OCC's visibility into and control over collateral deposits 
made under the escrow deposit program; (2) provide more specificity 
concerning the manner in which OCC would take possession of collateral 
in OCC's escrow deposit program in the event of a clearing member or 
custodian bank default; (3) clarify clearing members' rights to 
collateral in the escrow deposit program in the event of a customer 
default to the clearing member; and (4) improve the readability of the 
rules governing OCC's escrow deposit program by consolidating all such 
rules into a single location in OCC's Rulebook. Upon implementation of 
the proposed rule change, all securities collateral in OCC's escrow 
deposit program would be held at the Depository Trust Company 
(``DTC''), and custodian banks would only be allowed to hold cash 
collateral.
    The narrative below is comprised of four sections. The first 
section provides a background of OCC's current escrow deposit program 
as well as an overview of the proposed changes to the rules and 
agreements that govern the escrow deposit program. The second section 
discusses the changes associated with: (1) Increasing OCC's visibility 
into and control over collateral deposits made under the escrow deposit 
program; (2) providing more specificity concerning the manner in which 
OCC would take possession of collateral in OCC's escrow deposit program 
in the event of a clearing member or custodian bank default; and, (3) 
clarifying clearing members' rights to collateral in the escrow deposit 
program in the event of a customer default to the clearing member as 
well as providing additional detail concerning the manner in which 
clearing members may take possession of such collateral. The third 
section discusses proposed technical and conforming changes to the 
rules and agreements governing the current escrow deposit program that 
would allow OCC to consolidate all such terms into a single location in 
OCC's Rulebook. The second and third sections also discuss changes that 
improve the readability of the rules governing OCC's escrow deposit 
program, which is primarily achieved by consolidating all such rules 
into a single location in OCC's Rulebook. The fourth section discusses 
the manner in which OCC proposes to transition from the current escrow 
deposit program to the new escrow deposit program, including the 
removal of certain rules and contractual provisions that would no 
longer be applicable to the new escrow deposit program.
Section 1: Background and Overview of Proposed Rule Changes
Background/Current Escrow Deposit Program
    Each day OCC collects collateral from its clearing members in order 
to protect OCC and the markets it serves from potential losses stemming 
from a clearing member default. Approximately half of the collateral 
deposited by clearing members at OCC is deposited through OCC's escrow 
deposit program. Users of OCC's escrow deposit program are customers of 
clearing members who, through the escrow deposit program, are permitted 
to collateralize eligible positions directly with OCC (instead of with 
the relevant clearing member who would, in turn, deposit margin at 
OCC). Currently, collateral deposits made through OCC's escrow deposit 
program are characterized as either ``specific deposits'' or ``escrow 
deposits.'' Specific deposits are deposits of the security underlying a 
given options position and are made through DTC by a clearing member on 
behalf of its customer (at the direction of the customer).\3\ Escrow 
deposits are deposits of cash or securities made by a custodian bank on 
behalf of a customer of an OCC clearing member in support of an 
eligible options position. OCC's Rules currently contemplate two forms 
of escrow deposits: ``third-party escrow deposits'' and ``escrow 
program deposits.'' Third-party escrow deposits are substantially 
similar to specific deposits except for the fact that third-party 
escrow deposits are made by a custodian bank, and not a clearing 
member. Third-party escrow deposits consist entirely of securities and, 
like specific deposits, are made through DTC. In order to effect third-
party specific deposits, custodian banks must be DTC members. Escrow 
program deposits are bank deposits of eligible securities or cash, 
which are held at the custodian bank (versus third-party escrow 
deposits and specific deposits, which are held at DTC).
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    \3\ For example, if customer XYZ holds a short position of 
options on AAPL, customer XYZ could, through its clearing member's 
DTC account, pledge shares of AAPL to OCC in order to collateralize 
such options position and not be charged margin by OCC.
---------------------------------------------------------------------------

    When a customer of a clearing member makes a deposit in lieu of 
margin through OCC's escrow deposit program, the relevant positions are 
excluded from the clearing member's margin requirement at OCC. The 
escrow deposit program therefore provides users of OCC's services with 
a means to more efficiently use cash or securities they may have 
available.
Overview of Rule Changes (Including Terminology Changes) and New 
Agreements
Rule Consolidation and Terminology Changes
    Currently, the rules concerning OCC's escrow deposit program are 
located in OCC Rules 503, 610, 613 and 1801. Additionally, OCC and 
custodian banks participating in OCC's escrow deposit program enter 
into an Escrow Deposit Agreement (``EDA''), which also contains 
substantive provisions governing the program. OCC is proposing to 
consolidate all of the rules concerning the escrow deposit program, 
including the provisions of the EDA relevant to the revised escrow 
deposit program, into proposed Rules 610, 610A, 610B and 610C.\4\ OCC 
believes that consolidating the many rules governing the escrow deposit 
program into a single location would significantly enhance the 
understandability and transparency of the rules concerning the escrow 
deposit program for current users of the program as well as any persons 
that may be interested in using the program in the future.
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    \4\ As described herein, OCC is proposing to eliminate the EDA 
based on such consolidation. When appropriate, and as described in 
more detail below, conforming changes were made to certain Rules as 
a result of OCC proposing to require that all non-cash deposits in 
the escrow deposit program be made through DTC (and not held at 
custodian banks).
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    In connection with the above described rule consolidation, OCC is 
also proposing to rename the types of escrow deposits available within 
the escrow deposit program, as well as rename the term ``approved 
depository'' to ``approved custodian.'' Specific deposits would now be 
called ``member specific deposits,'' which are equity securities 
deposited by clearing members at DTC at the direction of their 
customers; third-party escrow deposits would now be called ``third-
party specific deposits,'' which are equity securities deposited by 
custodian banks at DTC at the direction of their customers; and, escrow 
program deposits would now be called, ``escrow deposits,'' which are 
either cash deposits held at a custodian bank for the benefit of OCC, 
or Government securities deposited at DTC by custodian banks at the 
direction of their

[[Page 60101]]

customers. The term ``approved depository'' would also be changed to 
``approved custodian'' to eliminate any potential confusion with the 
term ``Depository,'' which is defined in the Rules, to mean DTC.
New Rule Organization
    With respect to the rules governing the escrow deposit program, 
proposed Rule 610 would set forth general terms and conditions common 
to all types of deposits permitted under the escrow deposit program. 
Specifically, proposed Rule 610: (1) Sets forth the different types of 
eligible positions for which a deposit in lieu of margin may be used, 
(2) sets forth operational aspects of the escrow deposit program such 
as the days and the times during which a deposit in lieu of margin may 
be made and where the different types of deposits in lieu of margin 
must be maintained (either DTC or a custodian bank), (3) provides the 
conditions under which OCC may take possession of a deposit in lieu of 
margin (from DTC or a custodian bank), and (4) describes OCC's security 
interest in deposits in lieu of margin.\5\ Proposed Rule 610 is 
supplemented by: (1) Proposed Rule 610A for member specific deposits, 
(2) proposed Rule 610B for third-party specific deposits, and (3) 
proposed Rule 610C for escrow deposits. Proposed Rules 610A, 610B and 
610C provide further guidance and specificity on the topics initially 
addressed in proposed Rule 610 (and delineated above) as they relate to 
member specific deposits, third-party specific deposits and escrow 
deposits, respectively.
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    \5\ OCC would continue to maintain a perfected security interest 
in deposits in the escrow deposit program under the proposed Rules 
notwithstanding changes to the location of the rules that perfect 
such security interest. OCC's security interest in securities 
deposits in the escrow deposit program, which are held at DTC, is 
perfected by operation of DTC's rules. OCC's security interest in 
cash deposits in the escrow deposit program is perfected under 
proposed Rules 610C(i), 610C(j) and 610C(k), which replace Sections 
3.3, 3.4, 4.3, 4.4, 5.3, 5.4 and 21 of the EDA. Proposed Rule 610(g) 
also concerns OCC's security interest in deposits in escrow deposit 
program.
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    The new rule structure differs from the existing rule structure in 
that existing Rules 503, 610, 613 and 1801 discuss topics concerning 
deposits in lieu of margin (such as withdrawal, roll-over \6\ and 
release) in general terms and without regard to the type of deposit in 
lieu of margin. The existing rule structure also does not provide 
operational details of the escrow deposit program. The new rule 
structure discusses each aspect of OCC's escrow deposit program by type 
of deposit in lieu of margin (member specific deposits, third-party 
specific deposit or escrow deposits) as well as provides operational 
details concerning the program. OCC believes that the more detailed 
presentation of the new rules concerning the escrow deposit program 
enhances the understandability of the program to all users, and 
potential users, of the program because all such persons will be able 
to better understand how topics apply by type of deposit in lieu of 
margin and with regard to the operational differences between each type 
of deposit in lieu of margin.
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    \6\ A ``roll-over'' occurs when a customer chooses to maintain 
an existing escrow deposit after the options supported by the escrow 
deposit expires, or are closed-out, and the customer re-allocates 
the escrow deposit to a new options position.
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Agreements Concerning the Escrow Deposit Program
    In addition to the above-described Rule changes, many provisions of 
the EDA would be moved into the Rules. Accordingly, OCC is proposing to 
eliminate the EDA and replace it with a simplified agreement entitled 
the ``Participating Escrow Bank Agreement.'' \7\ The Participating 
Escrow Bank Agreement would provide that custodian banks are subject to 
all terms of the Rules governing the revised escrow deposit program,\8\ 
as they may be amended from time to time.\9\ The Participating Escrow 
Bank Agreement would contain eligibility requirements for custodian 
banks, including representations regarding the custodian bank's Tier 1 
Capital,\10\ and provide OCC with express representations concerning 
the bank's authority to enter into the Participating Escrow Bank 
Agreement.\11\ Moreover, standard contractual provisions concerning 
topics such as assignment, governing law and limitation of liability 
have been enhanced in the Participating Escrow Bank Agreement when 
compared to the EDA.\12\ OCC is also proposing to move notification 
requirements into proposed Rule 610C(l), which is an enhancement of 
Section 7 of the EDA that requires custodian banks to provide notice to 
OCC only when there are changes to the ``authorized persons'' and 
changes to the address of the bank. Proposed Rule 610C(l) would require 
escrow banks to provide OCC with notices of material changes to the 
bank (in additional to items such as changes of authorized persons and 
the address of bank, as currently required under Section 7 of the EDA).
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    \7\ The Participating Escrow Bank Agreement is attached to this 
filing as Exhibit 5A, with changes from the EDA marked. Custodian 
banks participating in the revised escrow deposit program are 
defined as ``Participating Escrow Banks'' in the Participating 
Escrow Bank Agreement, and such banks must also be an Approved 
Custodian pursuant to proposed Section 1.A(13) of OCC's By-Laws. In 
addition, and as described above, certain provisions of the EDA are 
proposed to be incorporated into OCC's Rules; however, no rights or 
obligations of either OCC or a custodian bank would change solely as 
a result of such an incorporation.
    \8\ The Rules governing the revised escrow deposit program are 
proposed Rules 610, 610A, 610B and 610C.
    \9\ Under the Participating Escrow Bank Agreement, however, OCC 
will agree to provide custodian banks with advance notice of 
material amendments to the Rules relating to deposits in lieu of 
margin and custodian banks will have the opportunity to withdraw 
from the escrow deposit program if they object to the amendments. As 
a general matter, the Participating Escrow Bank Agreement will not 
be negotiable, although OCC may determine to vary certain non-
material terms in limited circumstances.
    \10\ OCC recently enhanced the measurement it uses--Tier 1 
Capital instead of shareholders' equity--to establish minimum 
capital requirements for banks approved to issue letters of credit 
that may be deposited by clearing members as a form of margin asset. 
See Securities Exchange Act Release No. 74894 (May 7, 2015), 80 FR 
27431 (May 13, 2015) (SR-OCC-2015-007). For the reasons set forth in 
SR-OCC-2015-007, OCC is proposing to adopt the same standard with 
respect to custodian bank escrow deposits.
    \11\ These provisions include, but are not limited to, Sections 
1.1 and 1.2 of the EDA.
    \12\ Sections 2.1, 2.2, 3.5, 3.6, 3.8, 4.7, and 5.6, 6 and 7 of 
the EDA would be removed entirely since they are no longer needed 
under OCC's revised escrow deposit program. These provisions concern 
a custodian bank's movement of securities escrow collateral; such 
collateral would be deposited at DTC under the revised escrow 
deposit program (as described below). Section 2.3 of the EDA would 
also be removed in its entirety because escrow deposits would not be 
permitted for equity calls in the revised escrow deposit program. 
Additionally, the concept of cash settlements concerning escrow 
deposits would not be included in the revised escrow deposit program 
and, as a result, Sections 15, 16, 17 and 18(b) to 18(d) would be 
removed in their entirety.
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    OCC, under Proposed Rule 610C(b), would also require customers 
wishing to deposit cash collateral and custodian banks holding escrow 
deposits comprised of cash to enter into a tri-party agreement 
involving OCC, the customer and the applicable custodian bank (``Tri-
Party Agreement,'' attached hereto as Exhibit 5B). The Tri-Party 
Agreement governs the customer's use of cash in the program, confirms 
the grant of a security interest in the customer's account to OCC and 
the relevant clearing member, as set forth in proposed Rule 610C(f), 
and causes customers of clearing members to be subject to all terms of 
the Rules governing the revised escrow deposit program.\13\ Each 
custodian bank entering into the Tri-Party Agreement (``Tri-Party 
Custodian Bank''), would agree to follow the directions of OCC

[[Page 60102]]

with respect to cash escrow deposits without further consent by the 
customer.\14\ As discussed in greater detail below, use of the Tri-
Party Agreement significantly enhances OCC's rights concerning cash 
escrow deposits, and provides OCC with greater certainty regarding its 
rights to cash escrow deposits in the event of a customer or clearing 
member default.
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    \13\ The Rules governing the revised escrow deposit program are 
proposed Rules 610, 610A, 610B and 610C.
    \14\ OCC has determined to use this cash account structure as a 
result of a series of discussions with certain custodian banks 
involved in the cash portion of the escrow deposit program, as 
described in Item 5 below. The intended structure would permit a 
greater number of customers to participate in the escrow deposit 
program than, for example, a commingled ``omnibus'' account 
structure at each custodian bank, which would preclude the 
participation of customers subject to restrictions under the 
Investment Company Act of 1940 requiring segregation of a registered 
investment company's funds.
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Section 2: Transparency and Controls, Taking Possession of Collateral, 
and Clearing Member Rights to Collateral
Transparency and Control Over Collateral Included in Escrow Deposits
    Currently, securities deposits in the escrow deposit program are 
held at either DTC or a custodian bank, and cash deposits in the escrow 
deposit program are held at a custodian bank. In the case of either 
cash or securities held at a custodian bank, OCC relies on the 
custodian bank to verify the value and control of collateral since OCC 
does not have any visibility into relevant accounts. OCC is proposing 
to require that all securities deposited within the escrow deposit 
program, regardless of the type of deposit, be held at DTC.\15\ 
Additionally, OCC is proposing to require Tri-Party Custodian Banks to 
provide OCC with view access into the account in which the deposit is 
held.
---------------------------------------------------------------------------

    \15\ OCC has discussed the proposed rule changes to the escrow 
deposit program with DTC and, based on feedback from DTC, no 
concerns were communicated to OCC by DTC regarding the proposed rule 
changes. DTC has also indicated that the proposed rule changes to 
the escrow deposit program are consistent with DTC's operations.
---------------------------------------------------------------------------

    Holding securities escrow deposit program collateral at DTC would 
provide OCC with increased visibility into the collateral within the 
escrow deposit program because OCC would be able to use its existing 
interfaces with DTC to view, validate and value collateral within the 
escrow deposit program in real time, allowing OCC to perform the 
controls for which it currently relies on the custodian banks. It would 
also provide OCC with the ability to obtain possession of deposited 
securities upon a clearing member default by issuing a demand of 
collateral instruction through DTC's systems, without the need for 
custodian bank involvement. Furthermore, a clearing member would have 
the ability to obtain possession of deposited securities upon a 
customer default in a similar manner by notifying OCC of such customer 
default and submitting a request for delivery of such deposited 
securities (OCC's and clearing members' ability to take possession of a 
deposit within the escrow deposit program is discussed in greater 
detail below). OCC does not believe that requiring use of DTC to 
deposit securities escrow collateral presents a material change for 
users of OCC's escrow deposit program because such users currently use 
DTC to effect certain types of deposits in lieu of margin under the 
current escrow deposit program.\16\
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    \16\ Specifically, users of OCC's escrow deposit program would 
use DTC's Collateral Loan Services, which is described at: http://www.dtcc.com/products/training/helpfiles/settlement/settlement_help/help/collateral_loans.htm.
---------------------------------------------------------------------------

    Cash collateral pledged to support an escrow deposit would continue 
to be facilitated through the existing program interfaces; however, for 
increased security, any pledges of cash would be required to be made in 
a customer's account at the Tri-Party Custodian Bank that is used 
solely for the purpose of making escrow deposits. As described above, 
under the proposed changes OCC would require Tri-Party Custodian Banks 
and customers to enter into a Tri-Party Agreement in order to provide 
legal certainty concerning this arrangement. Further, and as set forth 
in the Tri-Party Agreement, each Tri-Party Custodian Bank would agree 
to disburse funds from the pledged account only at OCC's direction. 
From an operational perspective, each Tri-Party Custodian Bank would 
provide OCC with online view access to each customer's cash account 
designated for the escrow deposit program, allowing visibility into 
transactional activity and account balances. OCC would not process a 
cash escrow deposit in its systems until it sees the appropriate amount 
of cash deposited in the designated bank account at the Tri-Party 
Custodian Bank. This process ensures that OCC does not rely on a third 
party to value, or warrant the existence of, collateral within the 
escrow deposit program. The Tri-Party Agreement, in connection with the 
new cash collateral structure, would provide OCC with additional 
transparency and control over cash collateral under the revised escrow 
deposit program.
    In order to effect the foregoing, OCC is proposing to adopt 
proposed Rules 610A(a), 610B(a), 610C(b) and 610C(c). Proposed Rules 
610A(a) and 610B(a), Effecting a Member Specific Deposit and Effecting 
a Third-Party Specific Deposit, respectively, require that member 
specific deposits and third-party specific deposits must be made 
through DTC, and are largely based upon existing Rule 610(e), which 
discusses effecting deposits in lieu or margin generally. Language has 
been added to each proposed rule to more accurately articulate that 
member specific deposits and third-party specific deposits must be made 
through DTC and the party that is required to effect each type of 
deposit (i.e., a clearing member or a third-party depository). In the 
case of member specific deposits and third-party specific deposits, 
which are already made through DTC, OCC believes that proposed Rules 
610A(a) and Rule 610B(a) are rules that clarify existing practices and 
provide additional operational detail to users of the escrow deposit 
program (i.e., member specific deposits and third-party specific 
deposits must be made through DTC's EDP Pledge System and clearing 
members are required to maintain records of such deposits). Proposed 
Rules 610C(b) and 610C(c), Manner of Holding and Method of Effecting 
Escrow Deposits, respectively, are largely based upon existing Rules 
610(d), 610(g), 1801(d) and 1801(g), as well as Section 8 of the EDA 
with language added to more accurately articulate that securities 
escrow deposits must be made through DTC and cash must be deposited 
through a Tri-Party Custodian Bank, and provide operational detail 
concerning effecting escrow deposits. Moreover, OCC is proposing to 
adopt new Rule 610(e) in order to specify that all types of deposits in 
the escrow deposit program may be made only during the time specified 
by OCC. The purpose of specifying the time frames in which participants 
are allowed to effect deposits in the escrow deposit program is to 
facilitate OCC daily margin processing and ensure that all of the 
positions it guarantees are timely collateralized.\17\
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    \17\ In the event a deposit in the escrow deposit program is not 
timely made, OCC would collect margin from the relevant clearing 
member.
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    In addition to the above, and with respect to escrow deposits only, 
OCC is proposing enhancements to its process of ensuring that customers 
meet initial and maintenance minimums.\18\ Specifically, under the 
revised escrow deposit program, in the event a customer falls below the 
maintenance minimum, the custodian bank, pursuant

[[Page 60103]]

to the Participating Escrow Bank Agreement, would be required to ensure 
that the customer deposits additional collateral or escalate the matter 
to OCC. In addition to such notification requirement, OCC would also 
implement automated processes to ensure that escrow deposits meet 
required initial and maintenance minimums. In the event the matter is 
escalated to OCC or OCC's systems identify a shortfall, OCC would: (1) 
Demand that the relevant clearing member post additional margin to 
cover the margin requirement on the applicable position, and (2) if the 
relevant clearing member fails to satisfy such a demand for additional 
margin, OCC would close-out the applicable position and demand the 
escrow deposit from DTC or the Tri-Party Custodian Bank, as applicable, 
under its existing authority pursuant to Rule 1106. This process is 
much more robust than the current process concerning maintenance 
minimums in that OCC currently relies entirely on custodian banks 
holding escrow deposits to ensure the customer deposits additional 
collateral, as necessary, to meet initial and maintenance minimums. OCC 
believes that the proposed new process is more streamlined and 
efficient because OCC would not have to rely entirely on a custodian 
bank to ensure customers comply with initial and maintenance minimums.
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    \18\ Initial and maintenance minimums do not apply to member 
specific deposits and third-party specific deposits since the 
clearing member or custodian bank, as applicable, is pledging the 
security that is deliverable upon exercise of the germane options 
position.
---------------------------------------------------------------------------

    In order to implement the foregoing within the new rules concerning 
the escrow deposit program, OCC is proposing to adopt Rules 610C(g) and 
610C(h) that concern the initial and maintenance minimum escrow deposit 
values required by OCC as well as actions OCC is permitted to take in 
the event an escrow deposit falls below a required amount. These 
proposed rules are based on existing Rules 1801(c) and 1801(e) as well 
as Sections 3.2, 4.2, 5.2, 3.7, 4.8 and 5.7 of the EDA.\19\ With 
respect to the computation of initial and maintenance minimums, 
proposed Rules 610C(g) and 610C(h) would explain the formula through 
which OCC computes the initial and maintenance minimum for a given 
options position, with the specific percentage applicable to such 
calculation provided to participants in the escrow deposit program in a 
schedule posted on OCC's Web site. With respect to the effects of a 
failure to meet maintenance minimums, proposed Rule 610C(h) sets forth 
the conditions under which OCC would close out a given escrow deposit 
should it fall below the requisite maintenance minimum. Proposed Rule 
610C(h) would also provide OCC with the authority to use the cash and 
securities included within the escrow deposit to reimburse itself for 
costs incurred in connection with the close-out. OCC believes that by 
virtue of their proposed new location in the rules, as well as the 
additional detail provided in the proposed rules, all participants, and 
potential participants, in OCC's escrow deposit program would better 
understand the rules concerning initial and maintenance minimums, as 
they relate to escrow deposits, under the enhanced escrow deposit 
program (versus under the current escrow deposit program).
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    \19\ OCC is proposing to eliminate the concept of 
``substitutions'' of escrow deposit collateral (located in Sections 
4.7 and 5.6 of the EDA)--instead a given escrow deposit must at all 
times must meet the minimum amount (as set forth in proposed Rules 
610(g)(1) and (2)) and OCC would permit any excess amount to be 
withdrawn.
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OCC's Rights to Collateral in the Escrow Deposit Program in the Event 
of a Clearing Member or Bank Default
    The proposed Rules would enhance OCC's default management regime as 
it relates to the escrow deposit program by more specifically 
delineating the conditions under, and the process through which, OCC 
would take possession of collateral within the escrow deposit program 
should a clearing member or custodian bank default. Specifically, 
proposed Rules 610A(b), 610B(f), 610C(q) and 610C(r) provide that in 
the event of a clearing member or custodian bank default OCC would have 
the right to direct DTC to deliver the securities included in a member 
specific deposit, third-party specific deposit or escrow deposit to 
OCC's DTC participant account for the purpose of satisfying the 
obligations of the clearing member or reimbursing itself for losses 
incurred as a result of the failure, as applicable. Similarly, pursuant 
to proposed Rules 610C(q) and 610C(r) OCC would have the right in the 
event of a Tri-Party Custodian Bank default to take possession of cash 
included within an escrow deposit for the same purposes. In the event 
of a custodian bank default, pursuant to proposed Rule 610C(r) OCC 
would have the right to remove the custodian bank from the escrow 
deposit program, prohibit the custodian bank from making new escrow 
deposits, disallow withdrawals with respect to existing deposits, close 
out short positions covered by escrow deposits at the defaulted 
custodian bank and use such escrow deposits to reimburse itself for the 
costs of the close-out, or disregard or require the withdrawal of 
existing escrow deposits.
    Proposed Rules 610A(b), 610B(f) and 610C(q) concern OCC's rights to 
member specific deposits, third-party specific deposits and escrow 
deposits, respectively, in the event of a clearing member default. They 
would provide a more specific description of OCC's rights to a third-
party specific deposit during a default than existing Rule 610(k) and 
Section 18 of the EDA. However, the additional specificity that would 
be provided in proposed Rules 610A(b), 610B(f) and 610C(q) would not 
change OCC's nor clearing members' rights or obligations regarding 
member specific, third-party specific or escrow deposits in the event 
of a clearing member default. Proposed Rule 610C(r) addresses OCC's 
rights in the event of a custodian bank default and is based on 
existing Rules 613(h) and 1801(k). Proposed Rule 610C(r) would clarify 
OCC's existing operational practices when a custodian defaults (i.e., 
demand monies, not allow new deposits, etc., as described immediately 
above), but does not change any of the rights of OCC, clearing members 
or custodian banks set forth in existing Rules 613(h) and 1801(k).
    In addition to the above-described proposed rule changes, OCC is 
proposing to amend Rule 1106 to set forth the treatment of deposits in 
the escrow deposit program in the event of a suspension of a clearing 
member. Rule 1106(b)(2) would be amended to provide that OCC may close 
out a short position of a suspended clearing member covered by a member 
specific, third-party specific or escrow deposit, subject to the 
ability of the suspended clearing member or its representative to 
transfer the short position to another clearing member under certain 
circumstances. Further, current Rule 1106(b)(3) would be combined with 
Rule 1106(b)(2) and amended to set forth OCC's right to take possession 
of the cash and/or securities included within an escrow, member 
specific or third-party specific deposit for the purpose of reimbursing 
itself for costs incurred in connection with the close-out of a short 
position covered by the deposit. These proposed amendments to Rule 1106 
are consistent with proposed Rules 610B(f), 610C(q) and 610C(r).
Clearing Members' Rights to Collateral in the Escrow Deposit Program
    Clearing members' rights to escrow deposits and third-party 
specific deposits would be clarified under the proposed rules. While 
clearing members have secondary lien rights to the escrow deposits of 
their customers under the current escrow deposit program, OCC is 
proposing to add several rules that

[[Page 60104]]

would clarify these rights and provide additional guidance to clearing 
members regarding operational steps that would need to be taken in 
order to exercise their secondary lien rights. Specifically, OCC is 
proposing to add Rules 610B(c) and 610C(f) to delineate the rights of a 
clearing member as they relate to third-party specific deposits and 
escrow deposits. Proposed Rules 610B(c) and 610C(f) would provide for 
the grant of a security interest by the customer to the clearing member 
with respect to any given third-party specific deposit and escrow 
deposit, as applicable. The Rules would further provide that any such 
security interest of a clearing member in an escrow deposit would be 
subordinated to OCC's interest. For purposes of perfecting a clearing 
member's security interest under the Uniform Commercial Code (``UCC''), 
OCC would obtain control over the security both on its own behalf and 
on behalf of the relevant clearing member, with clear subordination of 
the clearing member's interest to OCC's interest. In the event OCC had 
to direct delivery of the security to the clearing member, OCC would do 
so on the clearing member's behalf. Proposed Rules 610B(c) and 610C(f) 
would better codify clearing members' secondary lien rights to third-
party specific deposits and escrow deposit than they are currently 
codified in Section 21 of the EDA, without changing any clearing member 
rights or obligations. OCC believes that such a codification would 
provide more transparency regarding clearing members' secondary lien 
rights under the enhanced escrow deposit program because all users and 
potential users of OCC's escrow deposit program would be able to easily 
identify and understand the rules concerning clearing members' 
secondary lien rights in a single location within OCC's publicly 
available Rulebook.
    Additionally, OCC is proposing to add several procedural rules that 
would set forth the process by which clearing members could exercise 
their secondary lien rights in a given deposit in the escrow deposit 
program. Proposed Rules 610C(d), 610C(o), 610C(p) and 610C(s), relating 
to escrow deposits, and proposed Rules 610B(d) and 610B(e), relating to 
third-party specific deposits, would provide that, in the event of a 
customer default to a clearing member, the clearing member would have 
the right to request a ``hold'' on a deposit. The hold would prevent 
the withdrawal of deposited securities or cash by a custodian bank or 
the release of a deposit that would otherwise occur in the ordinary 
course. Subsequent to placing a hold instruction on a deposit, a 
clearing member would have the right to request that OCC direct 
delivery of the deposit to the clearing member through DTC's systems in 
the case of securities, or an instruction to the Tri-Party Custodian 
Bank in the case of cash. Providing clearing members with transparent 
instructions regarding how to place a hold instruction on, and direct 
delivery of a deposit within the escrow deposit program, would 
significantly enhance the current escrow deposit program.
    OCC is also proposing to adopt Rules 610B(e) and 610C(s), which 
would protect OCC in the event that it delivers a third-party specific 
deposit or escrow deposit to a clearing member. Under proposed Rules 
610B(e) and 610C(s), a clearing member making a request for delivery 
would be deemed to have made the appropriate representations to OCC 
that the clearing member has a right to take possession of the 
deposited securities or cash and would agree to indemnify OCC against 
losses resulting from a breach of these representations or the delivery 
of the deposit. A clearing member would also be required to provide 
documentation regarding its right to possession of the securities or 
cash as OCC may reasonably request.
Section 3: Techincal[sic] and Conforming Changes to OCC'S Rules
    OCC also proposes a number of technical, conforming and structural 
changes in order to move the majority of the terms governing the escrow 
deposit program into one section in its Rulebook. OCC believes that 
changes to proposed Rules 610, 610A, 610B and 610C, described in 
greater detail below, are either non-substantive or conforming changes 
that do not alter the current rights or obligations of OCC, clearing 
members or participants in the escrow deposit program.
Proposed Rule 610--Deposits in Lieu of Margin (General Provisions)
    Proposed Rule 610 contains general provisions applicable to the 
escrow deposit program. Specifically, proposed Rule 610(a) replaces 
existing Rule 610(a) and sets forth general provisions of the escrow 
deposit program including: (1) Who may participate in the escrow 
deposit program, (2) the types of positions included in the escrow 
deposit program, (3) the types of deposits in the escrow deposit 
program, and (4) the collateral that is eligible for the escrow deposit 
program. Proposed Rule 610(b) replaces existing Rule 610(b) and 
provides further specificity with respect to the types of options 
positions included within OCC's escrow deposit program.\20\ This 
additional specificity clarifies OCC's existing rules and provides more 
transparency to users and potential users of OCC's escrow deposit 
program. Proposed Rule 610(c), which is not derived from an existing 
rule, clarifies OCC's existing practice that OCC will disregard a 
member specific deposit or a third-party specific deposit if such 
deposit is no longer eligible to be delivered upon the exercise of the 
associated stock option contract. Proposed Rule 610(d), which replaces 
existing Rules 610(c) and 1801(l), requires that deposits within the 
escrow deposit program be made in accordance with applicable laws and 
regulations, and be appropriately authorized. Proposed Rule 610(f), 
which replaces existing Rule 610(l), would clarify OCC's right to use 
deposits within the escrow deposit program until such deposits are 
withdrawn. Proposed Rule 610(f) is supplemented by proposed Rules 610A, 
610B and 610C with respect to member specific, third-party specific and 
escrow deposits. Proposed Rule 610(g) codifies OCC's security interest 
in deposits within the escrow deposit program.
---------------------------------------------------------------------------

    \20\ As described in greater detail below, proposed Rules 610(a) 
and 610(b) are supplemented by proposed Rules 610A, 610B and 610C.
---------------------------------------------------------------------------

Proposed Rule 610A--Member Specific Deposits
    Proposed Rule 610A clarifies many of the current rules concerning 
the escrow deposit program as they relate to member specific deposits. 
For example, proposed 610A(c) describes the process by which a clearing 
member may withdraw a member specific deposit (i.e., effecting a 
withdrawal or release through DTC's EDP Pledge System and ensuring that 
its margin requirement at OCC is met). While this issue is addressed in 
existing Rule 610(j) in general terms, OCC believes that the additional 
operational details regarding its existing processes in proposed Rule 
610A(c), along with its inclusion in proposed Rule 610A, further 
clarify how those existing processes apply to member specific deposits 
as opposed to other types of deposits in lieu of margin in existing 
Rule 610.\21\ Proposed Rule 610A(d) also establishes that member 
specific deposits may be ``rolled-over,'' a concept that is not 
specifically set forth in existing Rule 610 but has historically 
applied in connection with member specific deposits (formerly specific 
deposits).
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    \21\ Proposed Rule 610A(c) supplements proposed Rule 610(f).

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[[Page 60105]]

Proposed Rule 610B--Third-Party Specific Deposits
    Proposed Rule 610B clarifies many of the current rules concerning 
third-party specific deposits. For example, Proposed Rule 610B(b) 
addresses rollovers of a third-party specific deposit and replaces 
existing Rules 613(a) and Section 9 of the EDA, and articulates how to 
rollover third-party specific deposits by its inclusion within Rule 
610B. Withdrawals and releases of third-party specific deposits are 
addressed in proposed Rule 610B(d), which is based on existing Rules 
613(b) and 613(f). Specifically, releases and withdrawals of third-
party specific deposits would be effected through DTC's EDP Pledge 
System, subject to the clearing member's margin requirement being met, 
the clearing member's approval of the release or withdrawal, and the 
absence of a ``hold'' instruction. In addition, proposed Rule 610B(g) 
seeks to provide a more detailed description of the effect of a release 
of a third-party specific deposit than the applicable portions of 
existing Rule 613(i).
Proposed Rule 610C--Escrow Deposits
    Proposed Rule 610C, which is based on existing Rule 1801(a), would 
clarify the current rules concerning escrow deposits. For example, the 
introductory paragraph of proposed Rule 610C would provide a more 
detailed overview of a custodian bank's role in the escrow deposit 
program, specifying such a bank's role in effecting escrow deposits, 
and would describe eligible positions as they relate to escrow 
deposits. Proposed Rules 610C(a) through 610C(e) and proposed Rule 
610C(t) concern eligible collateral, the manner in which escrow 
deposits are to be held, and withdrawing an escrow deposit and rolling 
over an escrow deposit. These operational rules are based on: (1) 
Existing Rules 610(g) and 1801(b) and Sections 3.1, 4.1 and 5.1 of the 
EDA with respect to eligible collateral (proposed Rule 610C(a)); (2) 
existing Rules 610(j) and 1801(i), and Sections 10 and 20 of the EDA 
with respect to withdrawing an escrow deposit (proposed Rule 610C(d)); 
(3) existing Rule 613(i) with respect to the effect of a release or 
withdrawal of an escrow deposit (proposed Rule 610C(t)); and (4) 
existing Rule 613(a) and Section 9 of the EDA with respect to rollovers 
of an escrow deposit (Proposed Rule 610C(e)).
    In order to provide additional transparency concerning 
representations that custodian banks are deemed to make when effecting 
an escrow deposit, OCC is proposing to move several contractual 
provisions of the EDA into proposed Rules 610C(i), 610C(j) and 610C(k). 
Specifically: (1) Proposed Rule 610C(i), which concerns agreements and 
representations a custodian bank is deemed to have made when effecting 
an escrow deposit, is based upon Sections 1.6 and 4.6 of the EDA; (2) 
proposed Rule 610C(j), which concerns representations and warranties a 
custodian bank is deemed to make when giving an instruction to OCC and 
is based upon Sections 1.3, 1.4, 1.5, 1.6, 1.7 and 1.8 of the EDA; and 
(3) proposed Rule 610C(k), which concerns agreements a custodian bank 
is deemed to make when giving an instruction to OCC and is based upon 
Sections 4, 5 and 21 of the EDA. Moreover, and in addition to locating 
deemed representations of custodian banks in the Rules, proposed Rules 
610C(i), 610C(j) and 610C(k) contain language that perfects OCC's 
security interest in escrow deposits under Section 9 of the UCC, and 
replace Sections 3.3, 3.4, 4.3, 4.4, 5.3 and 5.4 of the EDA.\22\ OCC 
believes that by locating the above-described provisions in the Rules, 
all users and potential users of OCC's escrow deposit program would 
better understand the relationship between OCC and custodian banks.
---------------------------------------------------------------------------

    \22\ The primary UCC-related provisions in the proposed Rules 
include Rules 610C(j)(1), 610C(j)(9) and 610C(k)(1), which provide 
for the perfection of OCC's security interest in deposits consisting 
of securities under UCC Sections 9-106 and 9-314; Rules 610C(j)(1), 
610C(j)(10), and 610C(k)(2), which provide for the perfection of 
OCC's security interest in deposits consisting of cash under UCC 
Sections 9-104, 9-312 and 9-314; and Rules 610C(i)(1), 610C(i)(2) 
and 610C(j)(3), which support the first priority of OCC's security 
interest by preventing competing liens or claims.
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    Proposed Rules 610C(m), 610C(n), 610C(o) and 610C(p) concern the 
exercise of options positions collateralized by escrow deposits and the 
release of escrow deposits upon expiration. As with other parts of 
proposed Rule 610C, OCC believes that the location of proposed Rules 
610C(m), 610C(n), 610C(o) and 610C(p) provides all users and potential 
users of OCC's escrow deposit program with a more transparent 
understanding of how exercises of options positions affect escrow 
deposits as well as the manner in which OCC would release an escrow 
deposit upon the expiration of an options position. Similar to other 
parts of Rule 610C, proposed Rules 610C(m), 610C(n), 610C(o) and 
610C(p) are based on existing Rules of OCC as well as the EDA.\23\ 
Proposed Rule 610C(m) concerns reports OCC provides regarding escrow 
deposits and is based upon existing Rules 613(d) and 613(e) as well as 
Sections 11, 12 and 13 of the EDA. Proposed Rules 610C(n), 610C(o) and 
610C(p), which concern assignments of exercises and releases of escrow 
deposits upon expiration is based upon existing Rules 613(f) and 
1801(j) and Section 14 of the EDA.
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    \23\ As discussed in Section 3 above, Rules 610C(n) and 610C(p) 
contain language that prevents the release of an escrow deposit in 
the event such deposit is subject to a hold instruction, which is a 
proposed enhancement to the escrow deposit program.
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Section 4: Transition Period
    For the administrative convenience of clearing members, custodian 
banks and customers, the existing Rules governing deposits in lieu of 
margin would remain in effect, in parallel with the proposed Rules, for 
a transition ending November 30, 2017. During this transition period, 
deposits in lieu of margin could be made under either the existing 
Rules or the proposed Rules. This will eliminate the need of all 
clearing members to provide new collateral on a single date in the 
absence of a transition period. After the transition period, proposed 
Rules 610, 610A, 610B and 610C would provide the sole means of making 
deposits in lieu of margin and existing Rules 613 and 1801 would be 
removed from the Rulebook. In connection with the transition, existing 
Rule 610 would be re-designated as 610T to indicate that it is a 
temporary rule, and would become ineffective and removed after the 
transition period. Furthermore, following the transition period, 
existing Rule 503, which addresses instructions that call for the 
payment of a premium by or to the clearing member for whose account the 
deposit is made, would be removed from the Rules because these 
instructions would no longer be permitted under the revised escrow 
deposit program since this aspect of the program has not been used for 
a number of years.\24\ In addition, Government securities would be 
given full market value under the revised escrow deposit program and 
therefore existing Rule 610(h) would be removed from the Rules after 
the transition period.
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    \24\ For the purposes of clarity, existing Rules 613(c), 613(g), 
613(h), 613(j) address the same topic and would be removed from 
OCC's Rulebook following the transition period without being 
migrated into a proposed Rule.
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2. Statutory Basis
    OCC believes that the proposed rule change is consistent with 
Section 17A(b)(3)(F) of the Act \25\ because it would ensure the 
safeguarding of securities and funds which are in the custody and 
control of OCC. As described above, the proposed rule

[[Page 60106]]

change would increase OCC's visibility into and control over cash and 
securities deposits made in OCC's escrow deposit program. Deposits in 
OCC's escrow deposit program collateralize open securities positions 
guaranteed by OCC and protect OCC and market participants from the risk 
associated with a default of a clearing member. The proposed rule 
change would better ensure that OCC could verify that deposits of both 
cash and securities within OCC's escrow deposit program sufficiently 
collateralize germane short options position(s). In addition, OCC 
would: (1) Be able to use its existing functionality with DTC to more 
quickly take possession of such deposits without involving custodian 
banks in the event of a clearing member default, and (2) obtain a 
contractual commitment from [sic] Tri-Party Custodian Bank that they 
would disperse cash within the escrow deposit program to OCC at OCC's 
direction. OCC believes that these features of the revised escrow 
deposit program would reduce potential losses that may occur as a 
result of a clearing member default. As a result of the foregoing, the 
proposed rule change would better ensure the safeguarding of securities 
and funds that are in the custody and control of OCC.
---------------------------------------------------------------------------

    \25\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    OCC also believes that the proposed rule change is consistent with 
Rule 17Ad-22(d)(3), which requires OCC to hold assets in a manner that 
minimizes risk of loss or delay or in access to them.\26\ Specifically, 
and with respect to non-cash collateral, all non-cash collateral in the 
escrow deposit program would be held at DTC thereby allowing OCC to 
validate and value collateral in real time and quickly obtain 
possession of deposited securities by issuing a transfer instruction 
through DTC's systems in an event of default without involving 
custodian banks. With respect to cash collateral, all such collateral 
would be held in an escrow deposit program specific account at a Tri-
Party Custodian Bank, OCC would have view access into such account, and 
OCC would obtain a contractual commitment from the Tri-Party Custodian 
Banks that they would disperse cash within the escrow deposit program 
to OCC at OCC's direction. By more widely utilizing its existing 
infrastructure for non-cash collateral in the escrow deposit program, 
as well as by obtaining specific agreements regarding its right to take 
possession of cash collateral, OCC will be able to more quickly take 
possession of collateral in the escrow deposit program in the event of 
a clearing member default that would, in turn, reduce potential losses 
to OCC, other clearing members and market participants. Moreover, OCC 
believes that the proposed rule change is consistent with the 
requirement in Rule 17Ad-22(d)(11) \27\ that clearing agencies 
establish, implement, maintain and enforce policies and procedures 
reasonably designed to make key aspects of their default procedures 
publicly available, because the substantive terms of the escrow deposit 
program, and specifically the rules concerning default management, 
would be incorporated into OCC's Rules, which are publicly available on 
OCC's Web site, rather than in private agreements.
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    \26\ 17 CFR 240.17Ad-22(d)(3)
    \27\ 17 CFR 240.17Ad-22(d)(11).
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(B) Clearing Agency's Statement on Burden on Competition

    The proposed rule change would reflect changes to the Rules 
governing OCC's escrow deposit program and, more generally, amend the 
Rules to more clearly identify the three forms of deposits in lieu of 
margin: (1) Escrow deposits, (2) third-party specific deposits and (3) 
member specific deposits. The proposed rule change would impose a 
burden on competition that is necessary and appropriate in furtherance 
of the Act.\28\ In particular, a burden would be imposed on Tri-Party 
Custodian Bank[sic] in light of the requirement that cash included 
within an escrow deposit be held in an account of the relevant customer 
at the Tri-Party Custodian Bank pursuant to a Tri-Party Agreement. This 
requirement may limit certain custodian banks' participation in the 
escrow deposit program because the escrow deposit program would now 
require a Tri-Party Custodian Bank to have the technological capability 
to allow both OCC and customers of clearing members to have view access 
into bank accounts within the escrow deposit program. However, OCC 
believes that the resulting burden on competition is both necessary and 
appropriate in furtherance of the Act because OCC's view access into 
bank accounts within the escrow deposit program provides OCC additional 
transparency over cash collateral. As described in Item 3 above, by 
obtaining view access into bank accounts within the escrow deposit 
program OCC would not have to rely on Tri-Party Custodian Bank[sic] to 
value, or warrant the existence of, cash collateral within the escrow 
deposit program. OCC believes that obtaining such additional 
transparency over cash collateral is necessary and appropriate in 
furtherance of the Act.
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    \28\ 15 U.S.C. 78q-1(b)(3)(I).
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(C) Clearing Agency's Statement on Comments on the Proposed Rule Change 
Received From Members, Participants or Others

Communications With Custodian Banks
    In light of the substantial changes proposed to the escrow deposit 
program, OCC has sought to keep custodian banks informed regarding the 
proposed rule changes. These communications began in January and 
February 2012, when OCC notified each custodian bank of the proposal to 
restructure the escrow deposit program. As part of this notification, 
OCC informed each custodian bank of (1) OCC's intention to require that 
security pledges be made through DTC, (2) the percentage of cash used 
in the escrow deposit program and (3) the potential elimination of cash 
deposits.\29\
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    \29\ While it was ultimately determined in April 2014 that cash 
collateral would remain in the escrow deposit program, prior 
discussions with participating escrow banks reflected the evolution 
of OCC's decision on this point. For example, the PowerPoint 
presentation given to banks during June-August 2012 indicated that 
cash collateral would not be permitted in the escrow deposit 
program, while the PowerPoint presentation given during April-May 
2013, as well as the draft rules distributed to participating escrow 
banks for comment in July-August 2013, indicated that it would be 
included. A number of current participants in the escrow deposit 
program use cash, some to a substantial degree, and OCC determined 
that the use of cash collateral should remain an essential aspect of 
the escrow deposit program.
---------------------------------------------------------------------------

    In June through August 2012, OCC provided a PowerPoint presentation 
to each custodian bank summarizing proposed rule changes to the escrow 
deposit program. This presentation included an explanation of the 
reasons for the proposed rule changes, including the desire to enhance 
and strengthen the escrow deposit program and increase collateral 
transparency. The presentation also included a discussion of changes to 
the validation and valuation of collateral, and the calculation of 
contract quantities based on the collateral that has been pledged.
    In April and May 2013, OCC provided each custodian bank with an 
operational overview of the restructured escrow deposit program in the 
form of a PowerPoint presentation. This presentation covered: Eligible 
option types, types of eligible supporting collateral, required 
collateral value calculations for option contact coverage, valuation of 
supporting collateral, asset management locations/processing of 
supporting collateral, and validation and valuation of supporting 
collateral

[[Page 60107]]

and calculation of option contract coverage.
    In July and August 2013, OCC distributed a draft Participating 
Escrow Bank Agreement (as described below) and the related proposed OCC 
Rules to custodian banks along with a request for feedback. Following 
the receipt of questions and comments, OCC distributed ``FAQ'' 
responses to custodian banks.
    During September 2013, OCC provided a walkthrough of the functions 
of its ENCORE \30\ system applicable to the enhanced escrow deposit 
program for custodian banks in order to provide an orientation of such 
functionality. In connection with the restructured escrow deposit 
program, clearing members will continue to use ENCORE to view member 
specific deposits, and custodian banks will use ENCORE to view third-
party specific deposits and make escrow deposits consisting of cash. 
Moreover, OCC sent requests to custodian banks for validation of the 
DTC pledgor accounts to be used for the restructured escrow deposit 
program. In October 2013, OCC distributed escrow deposit program 
eligible securities file details to custodian banks.
---------------------------------------------------------------------------

    \30\ ENCORE is OCC's real-time clearing and settlement system 
that allows clearing members to, among other things, post and view 
margin collateral as well as deposits in lieu of margin.
---------------------------------------------------------------------------

    In February and March 2014, OCC arranged a series of calls with 
custodian banks to solicit feedback on a term sheet detailing cash 
account structures. Following the receipt of questions and comments, 
OCC distributed ``FAQ'' responses to custodian banks.
Comments Received From Custodian Banks
    As described above, OCC discussed the proposed rule changes to its 
escrow deposit program with custodian banks several times since 2012. 
While these discussions were generally informational in nature, 
custodian banks provided OCC with comments and questions in two 
instances: The July/August 2013 discussions and the February/March 2014 
discussion. The primary focus of the comments in both sets of 
discussions was the manner in which custodian banks would be required 
to hold cash under the new escrow rules: In an omnibus structure or in 
a tri-party structure. The omnibus structure would provide OCC with an 
account in OCC's name and thereby perfect OCC's right under the UCC to 
take possession of cash escrow deposits in the event of a clearing 
member default. This would also eliminate the need for a separate tri-
party agreement. However, the omnibus structure was less desirable to 
custodian banks since all of a custodian bank's OCC escrow deposit 
program clients' assets would be comingled in a single account. From an 
operational perspective, a single omnibus account at a custodian bank 
is easier for OCC to manage since OCC would only need to have ``view 
access'' into one account at a custodian bank. On the other hand, 
custodian banks expressed privacy concerns with respect to several 
clients having view access into a single account.
    Eventually, OCC decided to use a tri-party account structure for 
cash escrow deposits, with certain controls to alleviate the concerns 
on both sides. Specifically, custodian banks agreed to facilitate the 
execution of a form tri-party agreement with each of its clients that 
participates in OCC's escrow deposit program, which perfects OCC's 
security interest in cash escrow deposits. Additionally, custodian 
banks agreed to establish an escrow specific cash account for each 
client so that OCC does not need to differentiate a client's OCC escrow 
cash from the client's non-escrow cash. OCC believes that the proposed 
structure for cash accounts strikes the appropriate balance between 
OCC's desire for legal certainty as to its right to take possession of 
cash escrow deposits in the event of a clearing member default, and the 
operational desire to only have view access to a client's OCC escrow 
deposit program cash account balance at a custodian bank.
    Additional comments OCC received from the July/August 2013 
discussions with custodian banks centered on administrative items such 
as the escrow deposit program documentation structure and the manner in 
which custodian banks would post escrow deposits in OCC's clearing 
system, ENCORE. As discussed above, OCC moved the substantial majority 
of its Amended and Restated On-Line Escrow Deposit Agreement into 
proposed Rule 610C in order to have the majority of escrow rules in one 
place. Custodian banks did not express any concerns regarding the 
operational steps necessary to post an escrow deposit in ENCORE once 
OCC provided custodian banks with a ``walkthrough'' of the operational 
process.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate 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 or disapprove 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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-OCC-2016-009 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-OCC-2016-009. 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 Web site (http://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 Web site 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 such filings also will be available 
for inspection and copying at the principal office of OCC and on OCC's 
Web site at http://www.theocc.com/components/docs/legal/rules_and_bylaws/sr_occ_16_009.pdf.
    All comments received will be posted without change; the Commission 
does not edit personal identifying information from submissions. You

[[Page 60108]]

should submit only information that you wish to make available 
publicly.
    All submissions should refer to File Number SR-OCC-2016-009 and 
should be submitted on or before September 21, 2016.
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    \31\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-20882 Filed 8-30-16; 8:45 am]
 BILLING CODE 8011-01-P