Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Amendments to the Clearing Rules (the “Rules”), 8769-8773 [2019-04286]
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Federal Register / Vol. 84, No. 47 / Monday, March 11, 2019 / Notices
MGU and DMC serves as investment
adviser to DDF and DEX.1
The application was filed
on December 21, 2018, and amended on
March 4, 2019.
FILING DATES:
HEARING OR NOTIFICATION OF HEARING:
An order granting the application will
be issued unless the Commission orders
a hearing. Interested persons may
request a hearing by writing to the
Commission’s Secretary and serving
applicants with a copy of the request,
personally or by mail. Hearing requests
should be received by the Commission
by 5:30 p.m. on March 29, 2019, and
should be accompanied by proof of
service on applicants, in the form of an
affidavit or, for lawyers, a certificate of
service. Pursuant to Rule 0–5 under the
Act, hearing requests should state the
nature of the writer’s interest, any facts
bearing upon the desirability of a
hearing on the matter, the reason for the
request, and the issues contested.
Persons who wish to be notified of a
hearing may request notification by
writing to the Commission’s Secretary.
The Commission:
Secretary, U.S. Securities and Exchange
Commission, 100 F Street NE,
Washington, DC 20549–1090.
Applicants: 2005 Market Street, 9th
Floor, Philadelphia, PA 19103–7098.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Bruce R. MacNeil, Senior Counsel at
(202) 551–6817, or Nadya Roytblat,
Assistant Chief Counsel, at (202) 551–
6825 (Division of Investment
Management, Chief Counsel’s Office).
The
following is a summary of the
application. The complete application
may be obtained via the Commission’s
website by searching for the file
number, or for an applicant using the
Company name box, at https://
www.sec.gov/search/search.htm, or by
calling (202) 551–8090.
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SUPPLEMENTARY INFORMATION:
1 Applicants request that the order also apply to
each other registered closed-end investment
company advised or to be advised in the future by
DMC or MCIM or by an entity controlling,
controlled by, or under common control (within the
meaning of section 2(a)(9) of the Act) with DCM or
MCIM (including any successor in interest) (each
such entity, including MCIM and DMC are the
‘‘Advisers’’ and individually an ‘‘Adviser’’) that in
the future seeks to rely on the order (such
investment companies, together with MGU, DDF
and DEX, are collectively the ‘‘Funds’’ and,
individually, a ‘‘Fund’’). A successor in interest is
limited to entities that result from a reorganization
into another jurisdiction or a change in the type of
business organization. The requested order would
supersede a previous order (Macquarie Global
Infrastructure Total Return Fund Inc., et al.,
Investment Company Act Rel. Nos. 28579 (Jan. 6,
2009) (notice) and 28611 (Feb. 3, 2009) (order)).
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Summary of the Application
1. Section 19(b) of the Act generally
makes it unlawful for any registered
investment company to make long-term
capital gains distributions more than
once every twelve months. Rule 19b–1
under the Act limits to one the number
of capital gain dividends, as defined in
section 852(b)(3)(C) of the Internal
Revenue Code of 1986 (‘‘Code,’’ and
such dividends, ‘‘distributions’’), that a
registered investment company may
make with respect to any one taxable
year, plus a supplemental distribution
made pursuant to section 855 of the
Code not exceeding 10% of the total
amount distributed for the year, plus
one additional capital gain dividend
made in whole or in part to avoid the
excise tax under section 4982 of the
Code.
2. Applicants believe that investors in
certain closed-end funds may prefer an
investment vehicle that provides regular
current income through a fixed
distribution policy (‘‘Distribution
Policy’’). Applicants propose that the
Fund be permitted to adopt a
Distribution Policy, pursuant to which
the Fund would distribute periodically
to its stockholders a fixed monthly
percentage of the market price of the
Fund’s common stock at a particular
point in time or a fixed monthly
percentage of net asset value (‘‘NAV’’) at
a particular time or a fixed monthly
amount per share of common stock, any
of which may be adjusted from time to
time.
3. Applicants request an order under
section 6(c) of the Act granting an
exemption from section 19(b) of the Act
and rule 19b–1 to permit a Fund to
distribute periodic capital gain
dividends (as defined in section
852(b)(3)(C) of the Code) as frequently
as twelve times in any one taxable year
in respect of its common stock and as
often as specified by, or determined in
accordance with the terms of, any
preferred stock issued by the Fund.
Section 6(c) of the Act provides, in
relevant part, that the Commission may
exempt any person or transaction from
any provision of the Act to the extent
that such exemption is necessary or
appropriate in the public interest and
consistent with the protection of
investors and the purposes fairly
intended by the policy and provisions of
the Act.
4. Applicants state that any order
granting the requested relief will be
subject to the terms and conditions
stated in the application, which
generally are designed to address the
concerns underlying section 19(b) and
rule 19b–1, including concerns about
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proper disclosures and shareholders’
understanding of the source(s) of a
Fund’s distributions and concerns about
improper sales practices. Among other
things, such terms and conditions
require that (1) the board of directors or
trustees of the Fund (the ‘‘Board’’)
review such information as is
reasonably necessary to make an
informed determination of whether to
adopt the proposed Distribution Policy
and that the Board periodically review
the amount of the distributions in light
of the investment experience of the
Fund, and (2) that the Fund’s
shareholders receive appropriate
disclosures concerning the
distributions.
For the Commission, by the Division of
Investment Management, under delegated
authority.
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019–04289 Filed 3–8–19; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–85247; File No. SR–ICEEU–
2019–004]
Self-Regulatory Organizations; ICE
Clear Europe Limited; Notice of Filing
and Immediate Effectiveness of
Proposed Rule Change Relating to
Amendments to the Clearing Rules
(the ‘‘Rules’’)
March 5, 2019.
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 February
22, 2019, ICE Clear Europe Limited
(‘‘ICE Clear Europe’’) filed with the
Securities and Exchange Commission
(‘‘Commission’’) the proposed rule
changes described in Items I and II
below, which Items have been prepared
by ICE Clear Europe. ICE Clear Europe
filed the proposed rule change pursuant
to Section 19(b)(3)(A) of the Act 3 and
Rule 19b–4(f)(6) thereunder,4 so that the
proposal was immediately effective
upon filing with the Commission. The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 15 U.S.C. 78s(b)(3)(A).
4 17 CFR 240.19b–4(f)(6).
2 17
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Federal Register / Vol. 84, No. 47 / Monday, March 11, 2019 / Notices
The purpose of the proposed changes
is to amend the Rules 6 to address
certain requirements under the GDPR
relating to personal data in the context
of Clearing House activity that will
apply upon the UK ceasing to be an EU
member state, in circumstances where:
(i) No withdrawal agreement has been
agreed between the UK and the EU27;
and (ii) the UK has not been the subject
of an adequacy decision, such that the
UK thereby becomes a third country
under the GDPR.
ICE Clear Europe Rules relating to
personal data protection were amended
in 2018 to reflect certain requirements
of the GDPR as it applied to ICE Clear
Europe.7 Rule 106 currently requires,
among other provisions, that Clearing
Members ensure that personal data
transfers to ICEU are lawful.
If the UK ceases to be an EU member
state without a withdrawal agreement
being agreed and in the absence of
adequacy decision, the UK would be a
‘third country’ for GDPR purposes. In
that case, in certain circumstances, it
may be necessary or advisable to take
certain additional steps to avoid a
greater risk that transfers of personal
data from EU27-based Clearing
Members to ICE Clear Europe violate the
GDPR. Specifically, if an EU27-based
Clearing Member has not already put in
place safeguards called for by the GDPR
with respect to transfer of personal data
from that member to ICE Clear Europe,
that Clearing Member could violate the
GDPR if it continued to transfer
personal data to ICE Clear Europe. Thus,
in the case of a UK exit without a
withdrawal agreement or adequacy
decision, without any change to the
Rules, Clearing Members could violate
the GDPR as well as Rule 106, which
requires, among other provisions, that
Clearing Members ensure that personal
data transfers to ICE Clear Europe are
lawful.
In light of this change in
circumstances, although the principles
of Rule 106 continue to be relevant, ICE
Clear Europe considers that it would be
prudent to put in place additional
safeguards with respect to transfers of
personal data from EU27-based Clearing
Members to ICE Clear Europe such that
it can be certain that such transfers are
subject to appropriate safeguards within
the meaning of the GDPR and therefore
comply with the GDPR and Rule 106. As
such, ICE Clear Europe proposes to
amend its Rules to incorporate standard
data protection clauses pursuant to
Article 46(2) of the GDPR in the form of
the Set II Standard Contractual Clauses
published by the European Commission
for the transfer of personal data from the
EU to third countries 8 (the ‘‘Standard
Contractual Clauses’’) into Rule 106 and
a new Exhibit 5.
The proposed amendments in new
Rule 106(f) would by their terms apply
only if ICE Clear Europe is established
in a jurisdiction which the European
5 Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the
processing of personal data and on the free
movement of such data.
6 Capitalized terms used but not defined herein
have the meanings specified in the Rules.
7 Exchange Act Release No. 34–83311 (SR–
ICEEU–2018–007) (May 23, 2018), 83 FR 24834
(May 30, 2018).
8 SET II Standard contractual clauses for the
transfer of personal data from the Community to
third countries (controller to controller transfers),
European Commission Decision C(2004)5721.
I. Clearing Agency’s Statement of the
Terms of Substance of the Proposed
Rule Change
ICE Clear Europe proposes to make
certain amendments to its Rules to
address certain requirements under the
European Union General Data
Protection Regulation (‘‘GDPR’’) 5 in the
event that the United Kingdom (‘‘UK’’)
ceases to be a European Union (‘‘EU’’)
member state, which is currently
scheduled to occur on March 29, 2019,
in circumstances where: (i) No
withdrawal agreement has been agreed
between the UK and the EU27 which
stipulates that EU data protection law,
among other laws, shall continue to
apply in the UK (a ‘‘withdrawal
agreement’’); and (ii) the UK’s data
protection laws have not been found to
provide for an adequate level of
protection for the personal data of
individuals in the EU pursuant to a
decision made by the European
Commission under Article 45 of the
GDPR (an ‘‘adequacy decision’’).
II. Clearing Agency’s Statement of the
Purpose of, and Statutory Basis for, the
Proposed Rule Change
In its filing with the Commission, ICE
Clear Europe 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. ICE
Clear Europe has prepared summaries,
set forth in sections (A), (B), and (C)
below, of the most significant aspects of
such statements.
(A) Clearing Agency’s Statement of the
Purpose of, and Statutory Basis for, the
Proposed Rule Change
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(a) Purpose
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Commission has not found to offer an
adequate level of protection for personal
data under the GDPR, in other words, in
a scenario where no withdrawal
agreement has been agreed and there
has been no adequacy decision by the
European Commission in respect of the
UK.9 It is noted that if no withdrawal
agreement is agreed at the time of the
UK’s departure from the EU, it cannot
be assumed that an adequacy decision
would automatically be granted.
The amendments would require that
the Clearing House and each Clearing
Member subject to Chapter V of the
GDPR which transfers Personal Data to
the Clearing House (an ‘‘Exporting
Member’’) agree to comply with the
Standard Contractual Clauses. Revised
Rule 106 specifically provides for the
positions of the Clearing Member and
the Clearing House under the Standard
Contractual Clauses (as data exporter
and data importer, respectively). The
amendments also provide for the
Standard Contractual Clauses to take
precedence over other Rules and the
Clearing Membership Agreement on
Personal Data processing matters. The
amendments would define the terms
‘‘Data Subject’’, ‘‘Process’’ (and
derivations thereof), ‘‘Personal Data’’,
‘‘Controller’’ and ‘‘Supervisory
Authority’’ to have the meaning given to
such terms in the GDPR for purposes of
Rule 106. Rule 106(d) (which defined
such terms, as well as certain other
terms that are not used in the Rule) has
been deleted and reserved as
unnecessary.
The proposed amendments would
add a new Exhibit 5 to the Rules, which
reproduces the Standard Contractual
Clauses. The Standard Contractual
Clauses are in the form prescribed by
the EU and have not been amended
(except for Annex B which is intended
to be tailored to the processing of
personal data carried out by that
specific data controller). The Standard
Contractual Clauses define the terms
‘‘personal data’’, ‘‘special categories of
data/sensitive data’’, ‘‘process/
processing’’, ‘‘controller’’, ‘‘processor’’,
‘‘data subject’’ and ‘‘supervisory
authority/authority’’, consistent with
regulatory requirements. The term ‘‘data
exporter’’ is defined as the controller
who transfers the personal data and the
term ‘‘data importer’’ is defined as the
controller who agrees to receive from
the data exporter personal data for
further processing in accordance with
the Standard Contractual Clauses and is
9 ICE Clear Europe believes that this scenario will,
if it occurs, be readily apparent to market
participants based on public actions of relevant
authorities.
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not subject to a third country’s system
ensuring adequate protection.
The Standard Contractual Clauses set
out the obligations of the data exporter
and data importer, which generally
relate to legal compliance, having in
place processes to protect personal data
and respond to enquiries, having
necessary legal authority to fulfill the
obligations, having sufficient financial
resources to fulfill responsibilities
relating to liability for damages, and
agreeing to limitations on personal data
transfer and processing. Each party
commits to being liable to the other for
damages caused by breach of the
Standard Contractual Clauses and to
giving a data subject the right to enforce
as a third party beneficiary many of the
Standard Contractual Clauses. The
Standard Contractual Clauses also set
out how disputes with data subjects or
authorities would be resolved.
The Standard Contractual Clauses
permit the data exporter to temporarily
suspend transfers of personal data to the
data importer if the importer has
breached its obligations, until the
breach is repaired, and further set out
the conditions under which either party
may terminate the Standard Contractual
Clauses and when the authority must be
informed.
Proposed Annex A to Exhibit 5 to the
Rules would set out certain data
processing principles which relate to
purpose limitation of personal data
processing; data quality and
proportionality; transparency; security
and confidentiality; rights of access,
rectification, deletion and objection;
imposition of additional measures for
sensitive data; permitting an opt-out
with respect to data use in marketing;
and limiting use of automated decisions
relating to data subjects based on
personal data.
Proposed Annex B to Exhibit 5 to the
Rules sets out the description of the
Data Subjects, recipients of Personal
Data, purpose of the transfer(s) and
categories of Personal Data transferred
by the Exporting Member, for purposes
of Rule 106.
(b) Statutory Basis
ICE Clear Europe believes that the
proposed amendments are consistent
with the requirements of Section 17A of
the Act 10 and the regulations
thereunder applicable to it, including
the standards under Rule 17Ad–22.11 In
particular, Section 17A(b)(3)(F) of the
Act 12 requires, among other things, that
the rules of a clearing agency be
10 15
U.S.C. 78q–1.
CFR 240.17Ad–22.
12 15 U.S.C. 78q–1(b)(3)(F).
designed to promote the prompt and
accurate clearance and settlement of
securities transactions and, to the extent
applicable, derivative agreements,
contracts, and transactions, the
safeguarding of securities and funds in
the custody or control of the clearing
agency or for which it is responsible,
and the protection of investors and the
public interest. The amendments clarify
certain rights and obligations of the
Clearing House and Clearing Members
with respect to personal data obtained
in connection with clearing activity in
light of legal considerations under the
GDPR that may apply to Clearing
Members and ICE Clear Europe upon
the UK departure from the EU if there
is no withdrawal agreement and the EU
has not issued an adequacy decision.
EU–27 based Clearing Members must in
practice export personal data to ICE
Clear Europe in order to clear
transactions at ICE Clear Europe. The
proposed Rule changes will facilitate
the continued transfer of personal data
for that purpose in the scenario
described above and avoid increased
risk of violations of GDPR requirements
in connection with such transfers. The
changes will thus facilitate continued
clearing by EU–27 Clearing Members in
compliance with applicable law and
promote the prompt and accurate
clearance and settlement of transactions
by such persons. As such, the
amendments are consistent with the
protection of investors and the public
interest. (ICE Clear Europe does not
believe the amendments will have any
effect on the safeguarding of securities
and funds in the custody or control of
the Clearing House or for which it is
responsible.)
Moreover, the amendments are
consistent with Rule 17Ad–22(e)(1),13
which requires that each covered
clearing agency establish, implement,
maintain and enforce written policies
and procedures reasonably designed to
provide for a well-founded, clear,
transparent, and enforceable legal basis
for each aspect of its activities in all
relevant jurisdictions. As discussed
herein, the amendments are designed to
facilitate continued compliance by ICE
Clear Europe and its Clearing Members
with requirements of GDPR that will
apply upon the UK ceasing to be an EU
member state if there is no withdrawal
agreement and the EU has not issued an
adequacy decision. EU based Clearing
Members must export personal data to
ICE Clear Europe in order to clear
transactions at ICE Clear Europe, and
this Rule change will facilitate those
Clearing Members’ continued ability to
export the data without violating GDPR
should UK depart the EU without a
withdrawal agreement and without an
adequacy decision. The amendments
thereby facilitate continued clearing for
EU-based persons in accordance with
EU regulations relating to data
protection. ICE Clear Europe does not
expect that the amendments will
adversely impact its ability to comply
with the Act or any standards under
Rule 17Ad–22.14
(B) Clearing Agency’s Statement on
Burden on Competition
ICE Clear Europe does not believe the
proposed rule changes would have any
impact, or impose any burden, on
competition not necessary or
appropriate in furtherance of the
purpose of the Act. The amendments are
considered prudent in order for ICE
Clear Europe to ensure that there will be
no interruption in the receipt of
personal data from its EU27-based
Clearing Members (or increased risk to
such Clearing Members in the provision
of such data). ICE Clear Europe does not
believe the amendments will in
themselves materially affect the cost of,
or access to, clearing as they are
generally consistent with GDPR
requirements with which entities based
in the EU must already comply. To the
extent the amendments impose certain
additional costs on Clearing Members
and Sponsored Principals through the
specific requirements of the Standard
Contractual Clauses that may differ from
current practices, these result from the
requirements imposed by the GDPR, and
are generally applicable to Clearing
Members and Sponsored Principals
throughout the European Union. (In
addition, Clearing Members and
Sponsored Principals are already
required under the Rules to ensure that
their transmission of data is lawful, and
the amendments are therefore not
expected to impose significant
additional burdens.) As a result, ICE
Clear Europe does not believe the
proposed rule changes impose any
burden on competition that is
inappropriate in furtherance of the
purposes of the Act.
(C) Clearing Agency’s Statement on
Comments on the Proposed Rule
Change Received From Members,
Participants or Others
Written comments relating to the
proposed amendments have not been
solicited or received by ICE Clear
Europe. ICE Clear Europe will notify the
Commission of any comments received
11 17
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with respect to the proposed rule
change.
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III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule
change does not (i) significantly affect
the protection of investors or the public
interest; (ii) impose any significant
burden on competition; and (iii) become
operative for 30 days from the date on
which it was filed, or such shorter time
as the Commission may designate if
consistent with the protection of
investors and the public interest,
provided that ICE Clear Europe has
given the Commission written notice of
its intent to file the proposed rule
change at least five business days prior
to the date of filing of the proposed rule
change or such shorter time as
designated by the Commission,15 the
proposed rule change has become
effective pursuant to Section 19(b)(3)(A)
of the Act 16 and Rule 19b–4(f)(6) 17
thereunder.
The Commission believes that the
proposed rule change would clarify
certain rights and obligations of the
Clearing House and EU27-based
Clearing Members under the GDPR
regarding personal data transferred in
connection with clearing activity where
the UK withdraws from the EU without
a withdrawal agreement and the EU has
not issued an adequacy decision for the
UK. As such, the Commission believes
that the proposed rule change would
have no effect on (i) the safeguarding of
funds or securities in the custody or
control of ICE Clear Europe or for which
it is responsible; (ii) the terms of cleared
contracts; (iii) or the financial resources
of ICE Clear Europe. Moreover, the
Commission notes that the proposed
rule change would be limited to adding
to the Rules the standard provisions
already applicable under the GDPR.
Thus, EU27-based Clearing Members
would already be subject to these
requirements, and, as such, the
Commission does not believe that the
proposed rule change would impose any
new requirements on EU27-based
Clearing Members. Accordingly, the
Commission does not believe that the
proposed rule change would
significantly affect the rights or
obligations of ICE Clear Europe,
Clearing Members, or other persons
using the clearing service. For these
reasons, the Commission believes that
the proposed rule change would not
Clear Europe has satisfied this requirement.
U.S.C. 78s(b)(3)(A).
17 17 CFR 240.19b–4(f)(6).
significantly affect the protection of
investors or the public interest.
Moreover, because the Commission
believes that the proposed rule change
would be limited to adding to the Rules
the standard provisions under the GDPR
already applicable to EU27-based
Clearing Members, the Commission
does not believe that the proposed rule
change would impose any significant
burdens on EU27-based Clearing
Members. The Commission
acknowledges that the proposed rule
change could impose additional costs
on EU27-based Clearing Members if the
Standard Contractual Clauses differ
from their current practices, but the
Commission believes these costs would
be the result of the requirements
imposed by the GDPR, not the proposed
rule change. Moreover, as noted, these
requirements are already applicable to
all EU27-based Clearing Members, and
thus, EU27-based Clearing Members
should already comply with these
requirements. For these reasons, the
Commission believes that the proposed
rule change would not impose any
significant burden on competition.
A proposed rule change filed under
Rule 19b–4(f)(6) 18 normally would not
become operative prior to 30 days after
the date of its filing. Pursuant to Rule
19b–4(f)(6)(iii),19 however, the
Commission may designate a shorter
time if such action is consistent with the
protection of investors and the public
interest. ICE Clear Europe has requested
that the Commission waive the five-day
pre-filing requirement and the 30-day
operative delay so that ICE Clear Europe
may implement the proposed rule
change prior to the UK’s departure from
the EU, which is currently scheduled to
occur on March 29, 2019. ICE Clear
Europe believes that doing so would
facilitate Clearing Members’ continued
compliance with the GDPR
requirements which would apply upon
the UK’s withdrawal from the EU.
Moreover, ICE Clear Europe represents
that because the proposed rule change
would only apply upon the UK’s
withdrawal without a withdrawal
agreement or adequacy decision, the
proposed rule change would not have
any effect sooner than the UK’s
departure from the EU (March 29, 2019),
regardless of the 30-day operative delay.
ICE Clear Europe does not believe that
a further operative delay would be
necessary in light of this fact, and
further represents that any operative
delay would be inconsistent with
market expectations in light of the date
upon which the UK is scheduled to
15 ICE
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withdraw from the EU and could impair
clearing by EU27-based clearing
members after the UK’s withdrawal. As
a result, in ICE Clear Europe’s view,
immediate effectiveness would be
consistent with the protection of
investors and the public interest.
The Commission believes that
delaying the operation of the proposed
rule change would serve no purpose in
light of the fact that the proposed rule
change, by its terms, would not be
effective prior to March 29, 2019.
Moreover, the Commission believes, as
represented by ICE Clear Europe, that
any delay in the operation of the
proposed rule change would be
inconsistent with market expectations
and could hinder preparations for the
UK’s withdrawal from the EU by
delaying the operation of the proposed
rule change until shortly before the
scheduled withdrawal date. Further, the
Commission believes, as discussed
above, the proposed rule change would
not (i) significantly affect the protection
of investors or the public interest; (ii)
impose any significant burden on
competition; or (iii) affect the
safeguarding of funds or securities in
the custody or control of ICE Clear
Europe or for which it is responsible.
Rather, the Commission believes the
proposed rule change would allow
EU27-based Clearing Members to
continue clearing at ICE Clear Europe
after the UK’s withdrawal from the EU.
Thus, the Commission believes that
waiving the 30-day operative delay
would not (i) significantly affect the
protection of investors or the public
interest or (ii) impose any significant
burden on competition. The
Commission further believes that
waiving the 30-day operative delay
would provide certainty to ICE Clear
Europe and EU27-based Clearing
Members regarding the application of
the GDPR after the UK’s withdrawal
from the EU. Therefore, the Commission
believes that waiving the 30-day
operative delay is consistent with the
protection of investors and the public
interest and designates the proposed
rule change as operative upon filing.20
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: (i) Necessary or appropriate in
the public interest; (ii) for the protection
20 For these same reasons, the Commission waives
the five-day pre-filing requirement. Moreover, for
purposes only of waiving the five-day pre-filing
requirement and the 30-day operative delay, the
Commission has considered the proposed rule
change’s impact on efficiency, competition, and
capital formation. See 15 U.S.C. 78c(f).
E:\FR\FM\11MRN1.SGM
11MRN1
Federal Register / Vol. 84, No. 47 / Monday, March 11, 2019 / Notices
of investors; or (iii) 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:
amozie on DSK9F9SC42PROD with NOTICES
Electronic Comments
• Use the Commission’s internet
comment form (https://www.sec.gov/
rules/sro.shtml) or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
ICEEU–2019–004 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–ICEEU–2019–004. This file
number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
internet website (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for website viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE,
Washington, DC 20549, on official
business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such
filings will also be available for
inspection and copying at the principal
office of ICE Clear Europe and on ICE
Clear Europe’s website at https://
www.theice.com/clear-europe/
regulation. All comments received will
be posted without change. Persons
submitting comments are cautioned that
we do not redact or edit personal
identifying information from comment
submissions. You should submit only
information that you wish to make
available publicly. All submissions
VerDate Sep<11>2014
18:41 Mar 08, 2019
Jkt 247001
should refer to File Number SR–ICEEU–
2019–004 and should be submitted on
or before April 1, 2019.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.21
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019–04286 Filed 3–8–19; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–85248; File No. SR–
NYSECHX–2019–01]
Self-Regulatory Organizations; NYSE
Chicago, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change To Amend the Fee
Schedule of the Exchange
March 5, 2019.
Pursuant to Section 19(b)(1) 1 of the
Securities Exchange Act of 1934
(‘‘Act’’) 2 and Rule 19b–4 thereunder,3
notice is hereby given that, on February
21, 2019, the NYSE Chicago, Inc.
(‘‘NYSE Chicago’’ or ‘‘Exchange’’) 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 the selfregulatory 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 the
fee schedule of the Exchange (‘‘Fee
Schedule’’) to eliminate fees and rebates
related to the Sub-second Nondisplayed Auction Process (‘‘SNAP’’)
and the outbound routing service. The
proposed rule change is available on the
Exchange’s website at www.nyse.com, at
the principal office of the Exchange, and
at the Commission’s Public Reference
Room.
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
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
21 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
PO 00000
Frm 00113
Fmt 4703
Sfmt 4703
8773
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 the
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The Exchange proposes to amend the
Fee Schedule to eliminate all fees and
rebates related to SNAP and the
outbound routing service, which were
both decommissioned on December 31,
2018.4 Specifically, the Exchange
proposes the following amendments:
• Section E.6 (Routing Services Fees).
Current Section E.6 provides fees for
away executions resulting from orders
routed away from the Exchange
pursuant to the outbound routing
service. Given that the outbound routing
service has been decommissioned, the
Exchange proposes to replace all text
under Section E.6 with the term
‘‘Reserved.’’
• Section E.8(c) (Order Cancellation
Fee Exemption). Section E.8 provides
the Order Cancellation Fee, which is
assessed to Participants 5 per trading
account symbol. Paragraph (c) provides
an exemption to the Order Cancellation
Fee if a trading account symbol meets a
minimum threshold of executions
resulting from single-sided orders
submitted to the Matching System 6
(‘‘eligible executions’’). When the
outbound routing service was
operational, eligible executions
included executions within the
Matching System and at away markets
(for orders that were routed away
pursuant to the outbound routing
service).7 However, given that the
outbound routing service has been
decommissioned, eligible executions
now only include executions within the
Matching System. Accordingly, the
Exchange proposes to amend the
definition of eligible executions to omit
references to the Routing Services and a
repetitive reference to executions within
the Matching System. Therefore,
amended paragraph (c) would provide
4 See Exchange Act Release No. 84852 (December
19, 2018), 83 FR 66808 (December 27, 2018) (SR–
CHX–2018–09).
5 See Article 1, Rule 1(z) of the rules of the
Exchange defining ‘‘Participant.’’
6 The Matching System is a ‘‘Trading Facility’’ of
the Exchange as defined under Article 1, Rule 1(z)
of the rules of the Exchange.
7 Only routable orders submitted to the Matching
System were eligible to be routed away pursuant to
the outbound routing service.
E:\FR\FM\11MRN1.SGM
11MRN1
]]>Agencies
[Federal Register Volume 84, Number 47 (Monday, March 11, 2019)]
[Notices]
[Pages 8769-8773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04286]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-85247; File No. SR-ICEEU-2019-004]
Self-Regulatory Organizations; ICE Clear Europe Limited; Notice
of Filing and Immediate Effectiveness of Proposed Rule Change Relating
to Amendments to the Clearing Rules (the ``Rules'')
March 5, 2019.
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 February 22, 2019, ICE Clear Europe Limited (``ICE Clear Europe'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule changes described in Items I and II below, which Items
have been prepared by ICE Clear Europe. ICE Clear Europe filed the
proposed rule change pursuant to Section 19(b)(3)(A) of the Act \3\ and
Rule 19b-4(f)(6) thereunder,\4\ so that the proposal was immediately
effective upon filing with the Commission. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
[[Page 8770]]
I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change
ICE Clear Europe proposes to make certain amendments to its Rules
to address certain requirements under the European Union General Data
Protection Regulation (``GDPR'') \5\ in the event that the United
Kingdom (``UK'') ceases to be a European Union (``EU'') member state,
which is currently scheduled to occur on March 29, 2019, in
circumstances where: (i) No withdrawal agreement has been agreed
between the UK and the EU27 which stipulates that EU data protection
law, among other laws, shall continue to apply in the UK (a
``withdrawal agreement''); and (ii) the UK's data protection laws have
not been found to provide for an adequate level of protection for the
personal data of individuals in the EU pursuant to a decision made by
the European Commission under Article 45 of the GDPR (an ``adequacy
decision'').
---------------------------------------------------------------------------
\5\ Regulation (EU) 2016/679 of the European Parliament and of
the Council of 27 April 2016 on the protection of natural persons
with regard to the processing of personal data and on the free
movement of such data.
---------------------------------------------------------------------------
II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries,
set forth in sections (A), (B), and (C) below, of the most significant
aspects of such statements.
(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
(a) Purpose
The purpose of the proposed changes is to amend the Rules \6\ to
address certain requirements under the GDPR relating to personal data
in the context of Clearing House activity that will apply upon the UK
ceasing to be an EU member state, in circumstances where: (i) No
withdrawal agreement has been agreed between the UK and the EU27; and
(ii) the UK has not been the subject of an adequacy decision, such that
the UK thereby becomes a third country under the GDPR.
---------------------------------------------------------------------------
\6\ Capitalized terms used but not defined herein have the
meanings specified in the Rules.
---------------------------------------------------------------------------
ICE Clear Europe Rules relating to personal data protection were
amended in 2018 to reflect certain requirements of the GDPR as it
applied to ICE Clear Europe.\7\ Rule 106 currently requires, among
other provisions, that Clearing Members ensure that personal data
transfers to ICEU are lawful.
---------------------------------------------------------------------------
\7\ Exchange Act Release No. 34-83311 (SR-ICEEU-2018-007) (May
23, 2018), 83 FR 24834 (May 30, 2018).
---------------------------------------------------------------------------
If the UK ceases to be an EU member state without a withdrawal
agreement being agreed and in the absence of adequacy decision, the UK
would be a `third country' for GDPR purposes. In that case, in certain
circumstances, it may be necessary or advisable to take certain
additional steps to avoid a greater risk that transfers of personal
data from EU27-based Clearing Members to ICE Clear Europe violate the
GDPR. Specifically, if an EU27-based Clearing Member has not already
put in place safeguards called for by the GDPR with respect to transfer
of personal data from that member to ICE Clear Europe, that Clearing
Member could violate the GDPR if it continued to transfer personal data
to ICE Clear Europe. Thus, in the case of a UK exit without a
withdrawal agreement or adequacy decision, without any change to the
Rules, Clearing Members could violate the GDPR as well as Rule 106,
which requires, among other provisions, that Clearing Members ensure
that personal data transfers to ICE Clear Europe are lawful.
In light of this change in circumstances, although the principles
of Rule 106 continue to be relevant, ICE Clear Europe considers that it
would be prudent to put in place additional safeguards with respect to
transfers of personal data from EU27-based Clearing Members to ICE
Clear Europe such that it can be certain that such transfers are
subject to appropriate safeguards within the meaning of the GDPR and
therefore comply with the GDPR and Rule 106. As such, ICE Clear Europe
proposes to amend its Rules to incorporate standard data protection
clauses pursuant to Article 46(2) of the GDPR in the form of the Set II
Standard Contractual Clauses published by the European Commission for
the transfer of personal data from the EU to third countries \8\ (the
``Standard Contractual Clauses'') into Rule 106 and a new Exhibit 5.
---------------------------------------------------------------------------
\8\ SET II Standard contractual clauses for the transfer of
personal data from the Community to third countries (controller to
controller transfers), European Commission Decision C(2004)5721.
---------------------------------------------------------------------------
The proposed amendments in new Rule 106(f) would by their terms
apply only if ICE Clear Europe is established in a jurisdiction which
the European Commission has not found to offer an adequate level of
protection for personal data under the GDPR, in other words, in a
scenario where no withdrawal agreement has been agreed and there has
been no adequacy decision by the European Commission in respect of the
UK.\9\ It is noted that if no withdrawal agreement is agreed at the
time of the UK's departure from the EU, it cannot be assumed that an
adequacy decision would automatically be granted.
---------------------------------------------------------------------------
\9\ ICE Clear Europe believes that this scenario will, if it
occurs, be readily apparent to market participants based on public
actions of relevant authorities.
---------------------------------------------------------------------------
The amendments would require that the Clearing House and each
Clearing Member subject to Chapter V of the GDPR which transfers
Personal Data to the Clearing House (an ``Exporting Member'') agree to
comply with the Standard Contractual Clauses. Revised Rule 106
specifically provides for the positions of the Clearing Member and the
Clearing House under the Standard Contractual Clauses (as data exporter
and data importer, respectively). The amendments also provide for the
Standard Contractual Clauses to take precedence over other Rules and
the Clearing Membership Agreement on Personal Data processing matters.
The amendments would define the terms ``Data Subject'', ``Process''
(and derivations thereof), ``Personal Data'', ``Controller'' and
``Supervisory Authority'' to have the meaning given to such terms in
the GDPR for purposes of Rule 106. Rule 106(d) (which defined such
terms, as well as certain other terms that are not used in the Rule)
has been deleted and reserved as unnecessary.
The proposed amendments would add a new Exhibit 5 to the Rules,
which reproduces the Standard Contractual Clauses. The Standard
Contractual Clauses are in the form prescribed by the EU and have not
been amended (except for Annex B which is intended to be tailored to
the processing of personal data carried out by that specific data
controller). The Standard Contractual Clauses define the terms
``personal data'', ``special categories of data/sensitive data'',
``process/processing'', ``controller'', ``processor'', ``data subject''
and ``supervisory authority/authority'', consistent with regulatory
requirements. The term ``data exporter'' is defined as the controller
who transfers the personal data and the term ``data importer'' is
defined as the controller who agrees to receive from the data exporter
personal data for further processing in accordance with the Standard
Contractual Clauses and is
[[Page 8771]]
not subject to a third country's system ensuring adequate protection.
The Standard Contractual Clauses set out the obligations of the
data exporter and data importer, which generally relate to legal
compliance, having in place processes to protect personal data and
respond to enquiries, having necessary legal authority to fulfill the
obligations, having sufficient financial resources to fulfill
responsibilities relating to liability for damages, and agreeing to
limitations on personal data transfer and processing. Each party
commits to being liable to the other for damages caused by breach of
the Standard Contractual Clauses and to giving a data subject the right
to enforce as a third party beneficiary many of the Standard
Contractual Clauses. The Standard Contractual Clauses also set out how
disputes with data subjects or authorities would be resolved.
The Standard Contractual Clauses permit the data exporter to
temporarily suspend transfers of personal data to the data importer if
the importer has breached its obligations, until the breach is
repaired, and further set out the conditions under which either party
may terminate the Standard Contractual Clauses and when the authority
must be informed.
Proposed Annex A to Exhibit 5 to the Rules would set out certain
data processing principles which relate to purpose limitation of
personal data processing; data quality and proportionality;
transparency; security and confidentiality; rights of access,
rectification, deletion and objection; imposition of additional
measures for sensitive data; permitting an opt-out with respect to data
use in marketing; and limiting use of automated decisions relating to
data subjects based on personal data.
Proposed Annex B to Exhibit 5 to the Rules sets out the description
of the Data Subjects, recipients of Personal Data, purpose of the
transfer(s) and categories of Personal Data transferred by the
Exporting Member, for purposes of Rule 106.
(b) Statutory Basis
ICE Clear Europe believes that the proposed amendments are
consistent with the requirements of Section 17A of the Act \10\ and the
regulations thereunder applicable to it, including the standards under
Rule 17Ad-22.\11\ In particular, Section 17A(b)(3)(F) of the Act \12\
requires, among other things, that the rules of a clearing agency be
designed to promote the prompt and accurate clearance and settlement of
securities transactions and, to the extent applicable, derivative
agreements, contracts, and transactions, the safeguarding of securities
and funds in the custody or control of the clearing agency or for which
it is responsible, and the protection of investors and the public
interest. The amendments clarify certain rights and obligations of the
Clearing House and Clearing Members with respect to personal data
obtained in connection with clearing activity in light of legal
considerations under the GDPR that may apply to Clearing Members and
ICE Clear Europe upon the UK departure from the EU if there is no
withdrawal agreement and the EU has not issued an adequacy decision.
EU-27 based Clearing Members must in practice export personal data to
ICE Clear Europe in order to clear transactions at ICE Clear Europe.
The proposed Rule changes will facilitate the continued transfer of
personal data for that purpose in the scenario described above and
avoid increased risk of violations of GDPR requirements in connection
with such transfers. The changes will thus facilitate continued
clearing by EU-27 Clearing Members in compliance with applicable law
and promote the prompt and accurate clearance and settlement of
transactions by such persons. As such, the amendments are consistent
with the protection of investors and the public interest. (ICE Clear
Europe does not believe the amendments will have any effect on the
safeguarding of securities and funds in the custody or control of the
Clearing House or for which it is responsible.)
---------------------------------------------------------------------------
\10\ 15 U.S.C. 78q-1.
\11\ 17 CFR 240.17Ad-22.
\12\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------
Moreover, the amendments are consistent with Rule 17Ad-
22(e)(1),\13\ which requires that each covered clearing agency
establish, implement, maintain and enforce written policies and
procedures reasonably designed to provide for a well-founded, clear,
transparent, and enforceable legal basis for each aspect of its
activities in all relevant jurisdictions. As discussed herein, the
amendments are designed to facilitate continued compliance by ICE Clear
Europe and its Clearing Members with requirements of GDPR that will
apply upon the UK ceasing to be an EU member state if there is no
withdrawal agreement and the EU has not issued an adequacy decision. EU
based Clearing Members must export personal data to ICE Clear Europe in
order to clear transactions at ICE Clear Europe, and this Rule change
will facilitate those Clearing Members' continued ability to export the
data without violating GDPR should UK depart the EU without a
withdrawal agreement and without an adequacy decision. The amendments
thereby facilitate continued clearing for EU-based persons in
accordance with EU regulations relating to data protection. ICE Clear
Europe does not expect that the amendments will adversely impact its
ability to comply with the Act or any standards under Rule 17Ad-22.\14\
---------------------------------------------------------------------------
\13\ 17 CFR 240.17Ad-22(e)(1).
\14\ 17 CFR 240.17Ad-22.
---------------------------------------------------------------------------
(B) Clearing Agency's Statement on Burden on Competition
ICE Clear Europe does not believe the proposed rule changes would
have any impact, or impose any burden, on competition not necessary or
appropriate in furtherance of the purpose of the Act. The amendments
are considered prudent in order for ICE Clear Europe to ensure that
there will be no interruption in the receipt of personal data from its
EU27-based Clearing Members (or increased risk to such Clearing Members
in the provision of such data). ICE Clear Europe does not believe the
amendments will in themselves materially affect the cost of, or access
to, clearing as they are generally consistent with GDPR requirements
with which entities based in the EU must already comply. To the extent
the amendments impose certain additional costs on Clearing Members and
Sponsored Principals through the specific requirements of the Standard
Contractual Clauses that may differ from current practices, these
result from the requirements imposed by the GDPR, and are generally
applicable to Clearing Members and Sponsored Principals throughout the
European Union. (In addition, Clearing Members and Sponsored Principals
are already required under the Rules to ensure that their transmission
of data is lawful, and the amendments are therefore not expected to
impose significant additional burdens.) As a result, ICE Clear Europe
does not believe the proposed rule changes impose any burden on
competition that is inappropriate in furtherance of the purposes of the
Act.
(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants or Others
Written comments relating to the proposed amendments have not been
solicited or received by ICE Clear Europe. ICE Clear Europe will notify
the Commission of any comments received
[[Page 8772]]
with respect to the proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Because the foregoing proposed rule change does not (i)
significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate if consistent with
the protection of investors and the public interest, provided that ICE
Clear Europe has given the Commission written notice of its intent to
file the proposed rule change at least five business days prior to the
date of filing of the proposed rule change or such shorter time as
designated by the Commission,\15\ the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \16\ and Rule 19b-
4(f)(6) \17\ thereunder.
---------------------------------------------------------------------------
\15\ ICE Clear Europe has satisfied this requirement.
\16\ 15 U.S.C. 78s(b)(3)(A).
\17\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------
The Commission believes that the proposed rule change would clarify
certain rights and obligations of the Clearing House and EU27-based
Clearing Members under the GDPR regarding personal data transferred in
connection with clearing activity where the UK withdraws from the EU
without a withdrawal agreement and the EU has not issued an adequacy
decision for the UK. As such, the Commission believes that the proposed
rule change would have no effect on (i) the safeguarding of funds or
securities in the custody or control of ICE Clear Europe or for which
it is responsible; (ii) the terms of cleared contracts; (iii) or the
financial resources of ICE Clear Europe. Moreover, the Commission notes
that the proposed rule change would be limited to adding to the Rules
the standard provisions already applicable under the GDPR. Thus, EU27-
based Clearing Members would already be subject to these requirements,
and, as such, the Commission does not believe that the proposed rule
change would impose any new requirements on EU27-based Clearing
Members. Accordingly, the Commission does not believe that the proposed
rule change would significantly affect the rights or obligations of ICE
Clear Europe, Clearing Members, or other persons using the clearing
service. For these reasons, the Commission believes that the proposed
rule change would not significantly affect the protection of investors
or the public interest.
Moreover, because the Commission believes that the proposed rule
change would be limited to adding to the Rules the standard provisions
under the GDPR already applicable to EU27-based Clearing Members, the
Commission does not believe that the proposed rule change would impose
any significant burdens on EU27-based Clearing Members. The Commission
acknowledges that the proposed rule change could impose additional
costs on EU27-based Clearing Members if the Standard Contractual
Clauses differ from their current practices, but the Commission
believes these costs would be the result of the requirements imposed by
the GDPR, not the proposed rule change. Moreover, as noted, these
requirements are already applicable to all EU27-based Clearing Members,
and thus, EU27-based Clearing Members should already comply with these
requirements. For these reasons, the Commission believes that the
proposed rule change would not impose any significant burden on
competition.
A proposed rule change filed under Rule 19b-4(f)(6) \18\ normally
would not become operative prior to 30 days after the date of its
filing. Pursuant to Rule 19b-4(f)(6)(iii),\19\ however, the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. ICE Clear Europe has
requested that the Commission waive the five-day pre-filing requirement
and the 30-day operative delay so that ICE Clear Europe may implement
the proposed rule change prior to the UK's departure from the EU, which
is currently scheduled to occur on March 29, 2019. ICE Clear Europe
believes that doing so would facilitate Clearing Members' continued
compliance with the GDPR requirements which would apply upon the UK's
withdrawal from the EU. Moreover, ICE Clear Europe represents that
because the proposed rule change would only apply upon the UK's
withdrawal without a withdrawal agreement or adequacy decision, the
proposed rule change would not have any effect sooner than the UK's
departure from the EU (March 29, 2019), regardless of the 30-day
operative delay. ICE Clear Europe does not believe that a further
operative delay would be necessary in light of this fact, and further
represents that any operative delay would be inconsistent with market
expectations in light of the date upon which the UK is scheduled to
withdraw from the EU and could impair clearing by EU27-based clearing
members after the UK's withdrawal. As a result, in ICE Clear Europe's
view, immediate effectiveness would be consistent with the protection
of investors and the public interest.
---------------------------------------------------------------------------
\18\ 17 CFR 240.19b-4(f)(6).
\19\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------
The Commission believes that delaying the operation of the proposed
rule change would serve no purpose in light of the fact that the
proposed rule change, by its terms, would not be effective prior to
March 29, 2019. Moreover, the Commission believes, as represented by
ICE Clear Europe, that any delay in the operation of the proposed rule
change would be inconsistent with market expectations and could hinder
preparations for the UK's withdrawal from the EU by delaying the
operation of the proposed rule change until shortly before the
scheduled withdrawal date. Further, the Commission believes, as
discussed above, the proposed rule change would not (i) significantly
affect the protection of investors or the public interest; (ii) impose
any significant burden on competition; or (iii) affect the safeguarding
of funds or securities in the custody or control of ICE Clear Europe or
for which it is responsible. Rather, the Commission believes the
proposed rule change would allow EU27-based Clearing Members to
continue clearing at ICE Clear Europe after the UK's withdrawal from
the EU. Thus, the Commission believes that waiving the 30-day operative
delay would not (i) significantly affect the protection of investors or
the public interest or (ii) impose any significant burden on
competition. The Commission further believes that waiving the 30-day
operative delay would provide certainty to ICE Clear Europe and EU27-
based Clearing Members regarding the application of the GDPR after the
UK's withdrawal from the EU. Therefore, the Commission believes that
waiving the 30-day operative delay is consistent with the protection of
investors and the public interest and designates the proposed rule
change as operative upon filing.\20\
---------------------------------------------------------------------------
\20\ For these same reasons, the Commission waives the five-day
pre-filing requirement. Moreover, for purposes only of waiving the
five-day pre-filing requirement and the 30-day operative delay, the
Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------
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: (i)
Necessary or appropriate in the public interest; (ii) for the
protection
[[Page 8773]]
of investors; or (iii) 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:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml) or
Send an email to rule-comments@sec.gov. Please include
File Number SR-ICEEU-2019-004 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-ICEEU-2019-004. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filings will also be available for inspection
and copying at the principal office of ICE Clear Europe and on ICE
Clear Europe's website at https://www.theice.com/clear-europe/regulation. All comments received will be posted without change.
Persons submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-ICEEU-2019-004 and should be
submitted on or before April 1, 2019.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
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\21\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-04286 Filed 3-8-19; 8:45 am]
BILLING CODE 8011-01-P
