Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning Modifications to the Amended and Restated Stock Options and Futures Settlement Agreement Between The Options Clearing Corporation and the National Securities Clearing Corporation, 59976-59988 [2023-18673]

Download as PDF 59976 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices 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 such proposed rule change, or (B) institute proceedings to determine whether the proposed rule change should be disapproved. IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission’s internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an email to rule-comments@ sec.gov. Please include File Number SR– NSCC–2023–007 on the subject line. lotter on DSK11XQN23PROD with NOTICES1 Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549. All submissions should refer to File Number SR–NSCC–2023–007. 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 the filing also will be available for VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 inspection and copying at the principal office of NSCC and on DTCC’s website (https://dtcc.com/legal/sec-rulefilings.aspx). Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR–NSCC–2023–007 and should be submitted on or before September 20, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.57 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–18670 Filed 8–29–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–98215; File No. SR–OCC– 2023–007] Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Filing of Proposed Rule Change Concerning Modifications to the Amended and Restated Stock Options and Futures Settlement Agreement Between The Options Clearing Corporation and the National Securities Clearing Corporation August 24, 2023. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Exchange Act’’ or ‘‘Act’’),1 and Rule 19b–4 thereunder,2 notice is hereby given that on August 10, 2023, the Options Clearing Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission (‘‘Commission’’ or ‘‘SEC’’) 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 This proposed rule change would (1) modify the Amended and Restated Stock Options and Futures Settlement Agreement dated August 5, 2017 between OCC and National Securities Clearing Corporation (‘‘NSCC,’’ and together with OCC, the ‘‘Clearing 57 17 CFR 200.30–3(a)(12). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 Agencies’’) (‘‘Existing Accord’’) 3 and (2) make certain revisions to OCC By-Laws, OCC Rules,4 OCC’s Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description and OCC’s Liquidity Risk Management Framework in connection with the proposed modifications to the Existing Accord, as described in greater detail below.5 The proposed changes would permit OCC to elect to make a cash payment to NSCC following the default of a common clearing participant that would cause NSCC’s central counterparty trade guaranty to attach to certain obligations of that participant, as described in greater detail below. The proposed changes are included in Exhibits 5A and 5B and confidential Exhibits 5C, 5D, and 5E to File No. SR– OCC–2023–007. Material proposed to be added is underlined and material proposed to be deleted is marked in strikethrough text. 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. (A) Clearing Agency’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change (1) Purpose Executive Summary NSCC is a clearing agency that provides clearing, settlement, risk management, and central counterparty services for trades involving equity securities. OCC is the sole clearing agency for standardized equity options listed on national securities exchanges registered with the Commission, including options that contemplate the 3 The Existing Accord was previously approved by the Commission. See Securities Exchange Act Release Nos. 81266, 81260 (July 31, 2017) (File Nos. SR–NSCC–2017–007; SR–OCC–2017–013), 82 FR 36484 (Aug. 4, 2017). 4 OCC By-Laws are available at https:// www.theocc.com/getmedia/3309eceb-56cf-48fcb3b3-498669a24572/occ_bylaws.pdf and OCC Rules are available at https://www.theocc.com/getmedia/ 9d3854cd-b782-450f-bcf7-33169b0576ce/occ_ rules.pdf. 5 NSCC also has filed a proposed rule change with the Commission in connection with this proposal. See SR–NSCC–2023–007. E:\FR\FM\30AUN1.SGM 30AUN1 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 physical delivery of equities cleared by NSCC in exchange for cash (‘‘physically settled’’ options).6 OCC also clears certain futures contracts that, at maturity, require the delivery of equity securities cleared by NSCC in exchange for cash. As a result, the exercise/ assignment of certain options or maturation of certain futures cleared by OCC effectively results in stock settlement obligations. NSCC and OCC maintain a legal agreement, generally referred to by the parties as the ‘‘Accord’’ agreement, that governs the processing of such physically settled options and futures cleared by OCC that result in transactions in underlying equity securities to be cleared by NSCC (i.e., the Existing Accord). The Existing Accord establishes terms under which NSCC accepts for clearing certain securities transactions that result from the exercise and assignment of relevant options contracts and the maturity of futures contracts that are cleared and settled by OCC.7 It also establishes the time when OCC’s settlement guaranty in respect of those transactions ends and NSCC’s settlement guaranty begins. The Existing Accord allows for a scenario in which NSCC could choose not to guarantee the settlement of such securities arising out of transactions. Specifically, NSCC is not obligated to guarantee settlement until its member has met its collateral requirements at NSCC. If NSCC chooses not to guarantee settlement, OCC would engage in an alternate method of settlement outside of NSCC. This scenario presents two primary problems. First, the cash required for OCC and its Clearing Members in certain market conditions to facilitate settlement outside of NSCC could be significantly more than the amount required if NSCC were to guarantee the relevant transactions. This is because settlement of the transactions in the underlying equity securities outside of NSCC would mean that they would no longer receive the benefit of netting through the facilities of NSCC. In such a scenario, the additional collateral required from Clearing Members to support OCC’s continuing 6 The term ‘‘physically-settled’’ as used throughout the OCC Rulebook refers to cleared contracts that settle into their underlying interest (i.e., options or futures contracts that are not cashsettled). When a contract settles into its underlying interest, shares of stock are sent, i.e., delivered, to contract holders who have the right to receive the shares from contract holders who are obligated to deliver the shares at the time of exercise/assignment in the case of an option and maturity in the case of a future. 7 Under the Existing Accord, such options and futures are defined as ‘‘E&A/Delivery Transactions’’, which refers to ‘‘Exercise & Assignment Delivery Transactions.’’ VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 settlement guarantee would also have to be sufficiently liquid to properly manage the risks associated with those transactions being due on the second business day following the option exercise or the relevant futures contract maturity date. Based on an analysis of scenarios using historical data where it was assumed that OCC could not settle transactions through the facilities of NSCC, the worst-case outcome resulted in extreme liquidity demands of over $300 billion for OCC to effect settlement via an alternative method, e.g., by way of gross broker-to-broker settlement, as discussed in more detail below. OCC Clearing Members, by way of their contributions to the OCC Clearing Fund, would bear the brunt of this demand. Furthermore, there is no guarantee that OCC Clearing Members could fund the entire amount of any similar real-life scenarios. By contrast, projected GSPs, defined below, identified during the study ranged from approximately $419 million to over $6 billion, also as discussed in more detail below. The second primary problem relates to the significant operational complexities if settlement occurs outside of NSCC. More specifically, netting through NSCC reduces the volume and value of settlement obligations. For example, in 2022 it is estimated that netting through NSCC’s continuous net settlement (‘‘CNS’’) accounting system 8 reduced the value of CNS settlement obligations by approximately 98% or $510 trillion from $519 trillion to $9 trillion. If settlement occurred outside of NSCC, on a broker-to-broker basis between OCC Clearing Members, for example, shares would not be netted and Clearing Members would have to coordinate directly with each other to settle the relevant transactions. The operational complexities and uncertainty associated with alternate means of settlement would impact every market participant involved in a settlement of OCC-related transactions. To address these problems, the Clearing Agencies are proposing to amend and restate the Existing Accord and make related changes to their respective rules that would allow OCC to elect to make a cash payment to NSCC following the default of a Common Member 9 that would cause 8 See Rule 11 (CNS System) and Procedure VII (CNS Accounting Operation) of the NSCC Rules. See NSCC’s Rules, available at https:// www.dtcc.com/-/media/Files/Downloads/legal/ rules/nscc_rules.pdf. 9 A firm that is both an OCC Clearing Member and an NSCC Member or is an OCC Clearing Member that has designated an NSCC Member to act on its behalf is referred to herein as a ‘‘Common PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 59977 NSCC to guarantee settlement of that Common Member’s transactions and, therefore, cause those transactions to be settled through processing by NSCC. As part of this proposal, OCC also will enhance its daily liquidity stress testing processes and procedures to account for the possibility of OCC making such a payment to NSCC in the event of a Common Member default. By making these enhancements to its stress testing, OCC could include the liquid resources necessary to make the payment in its resource planning. The Clearing Agencies believe that by NSCC accepting such a payment from OCC, the operational efficiencies and reduced costs related to the settlement of transactions through NSCC would limit market disruption following a Common Member default because settlement through NSCC following such a default would be less operationally complex and would be expected to require less liquidity and other collateral from market participants than the processes available to OCC for closing out positions. Additionally, proposed enhancements by OCC to its liquidity stress testing would add assurances that OCC could make such a payment in the event of a Common Member default. The Clearing Agencies believe that their respective clearing members and all other participants in the markets for which OCC provides clearance and settlement will benefit from OCC’s ability to choose to make a cash payment to effect settlement through the facilities of NSCC. This change will provide more certainty around certain default scenarios and would blunt the financial and operational burdens market participants could experience in the case of most clearing member defaults.10 Background OCC acts as a central counterparty clearing agency for U.S.-listed options and futures on a number of underlying financial assets including common stocks, currencies, and stock indices. In connection with these services, OCC provides the OCC Guaranty pursuant to its By-Laws and Rules. NSCC acts as a central counterparty clearing agency for certain equity securities, corporate and municipal debt, exchange traded funds and unit investment trusts that are eligible for its services. Eligible trading Member.’’ The term ‘‘Clearing Member’’ as used herein has the meaning provided in OCC’s By-Laws. See OCC’s By-Laws, supra, note 4. The term ‘‘Member’’ as used herein has the meaning provided in NSCC’s Rules. See NSCC’s Rules, supra note 8. 10 OCC provided its analysis of the financial impact of alternate means of settlement as Exhibit 3A to File No. SR–OCC–2023–007. E:\FR\FM\30AUN1.SGM 30AUN1 59978 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices activity may be processed through NSCC’s CNS system 11 or through its Balance Order Account system,12 where all eligible compared and recorded transactions for a particular settlement date are netted by issue into one net long (buy), net short (sell) or flat position. As a result, for each day with activity, each Member has a single deliver or receive obligation for each issue in which it has activity. In connection with these services, NSCC also provides the NSCC Guaranty pursuant to Addendum K of the NSCC Rules. OCC’s Rules provide that delivery of, and payment for, securities underlying certain exercised stock options and matured single stock futures that are physically settled are generally effected through the facilities of NSCC and are not settled through OCC’s facilities.13 OCC and NSCC executed the Existing Accord to facilitate, via NSCC’s systems, the physical settlement of securities arising out of options and futures cleared by OCC. OCC Clearing Members that clear and settle physically settled options and futures transactions through OCC also are required under OCC’s Rules 14 to be Members of NSCC or to have appointed or nominated a Member of NSCC to act on its behalf. As noted above, these firms are referred to as ‘‘Common Members’’ in the Existing Accord. lotter on DSK11XQN23PROD with NOTICES1 Summary of the Existing Accord The Existing Accord governs the transfer between OCC and NSCC of responsibility for settlement obligations that involve a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC (‘‘E&A/Delivery Transactions’’). It also establishes the time when OCC’s settlement guarantee (the ‘‘OCC Guaranty’’) ends and NSCC’s settlement guarantee (the ‘‘NSCC Guaranty’’) 15 begins with respect to E&A/Delivery Transactions. However, in the case of a Common Member default 16 11 See Rule 11 (CNS System) and Procedure VII (CNS Accounting Operation) of the NSCC Rules, supra note 8. 12 See Rule 8 (Balance Order and Foreign Security Systems) and Procedure V (Balance Order Accounting Operation) of the NSCC Rules, supra note 8. 13 See Chapter IX of OCC’s Rules (Delivery of Underlying Securities and Payment), supra note 4. 14 See OCC Rule 901, supra note 4. 15 See Addendum K and Procedure III of the NSCC Rules, supra note 8. 16 A Common Member that has been suspended by OCC or for which NSCC has ceased to act is referred to as a ‘‘Mutually Suspended Member’’. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 NSCC can reject these settlement obligations, in which case the settlement guaranty will not transfer from OCC to NSCC and OCC would not have a right to settle the transactions through the facilities of NSCC. Instead, OCC would have to engage in alternative methods of settlement that have the potential to create significant liquidity and collateral requirements for both OCC and its non-defaulting Clearing Members.17 More specifically, this could involve broker-to-broker settlement between OCC Clearing Members.18 This settlement method is operationally complex because it requires bilateral coordination directly between numerous Clearing Members rather than relying on NSCC to facilitate multilateral netting to settle the relevant settlement obligations. As described above, it also potentially could result in significant liquidity and collateral requirements for both OCC and its nondefaulting Clearing Members because the transactions will not be netted through the facilities of NSCC. Alternatively, where NSCC accepts the E&A/Delivery Transactions from OCC, the OCC Guaranty ends and the NSCC Guaranty takes effect. The transactions are then netted through NSCC’s systems, which allows settlement obligations for the same settlement date to be netted into a single deliver or receive obligation. This netting reduces the costs associated with securities transfers by reducing the number of securities movements required for settlement and further reduces operational and market risk. The benefits of such netting by NSCC may be significant with respect to the large volumes of E&A/Delivery 17 For example, OCC evaluated certain Clearing Member default scenarios in which OCC assumed that NSCC would not accept the settlement obligations under the Existing Accord, including the default of a large Clearing Member coinciding with a monthly options expiration. OCC has estimated that in such a Clearing Member default scenario, the aggregate liquidity burden on OCC in connection with obligations having to be settled on a gross broker-to-broker basis could reach a significantly high level. For example, in January 2022, the largest gross broker-to-broker settlement amount in the case of a larger Clearing Member default would have resulted in liquidity needs of approximately $384,635,833,942. OCC provided the data and analysis as Exhibit 3A to File No. SR– OCC–2023–007. 18 In broker-to-broker settlement, Clearing Member parties are responsible for coordinating settlement—delivery and payment—among themselves on a transaction-by-transaction basis. Once transactions settle, the parties also have an obligation to affirmatively notify OCC so that OCC can close out the transactions. If either one of or both of the parties do not notify OCC, the transaction will remain open on OCC’s books indefinitely until the time both parties have provided notice of settlement to OCC. PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 Transactions processed during monthly options expiry periods. Pursuant to the Existing Accord, on each trading day NSCC delivers to OCC a file that identifies the securities, including stocks, exchange-traded funds and exchange-traded notes, that are eligible (1) to settle through NSCC and (2) to be delivered in settlement of (i) exercises and assignments of stock options cleared and settled by OCC or (ii) delivery obligations from maturing stock futures cleared and settled by OCC. OCC, in turn, delivers to NSCC a file identifying securities to be delivered, or received, for physical settlement in connection with OCC transactions.19 After NSCC receives the list of eligible transactions from OCC and NSCC has received all required deposits to the NSCC Clearing Fund from all Common Members taking into consideration amounts required to physically settle the OCC transactions, the OCC Guaranty would end and the NSCC Guaranty would begin with respect to physical settlement of the eligible OCC-related transactions.20 At this point, NSCC is solely responsible for settling the transactions.21 Each day, NSCC is required to promptly notify OCC at the time the NSCC Guaranty takes effect. If NSCC rejects OCC’s transactions due to an improper submission 22 or if NSCC ‘‘ceases to act’’ for a Common Member,23 NSCC’s Guaranty will not 19 Each day that both OCC and NSCC are open for accepting trades for clearing is referred to as an ‘‘Activity Date’’ in the Existing Accord. Securities eligible for settlement at NSCC are referred to collectively as ‘‘Eligible Securities’’ in the Existing Accord. Eligible securities are settled at NSCC through NSCC’s CNS Accounting Operation or NSCC’s Balance Order Accounting Operation. 20 The term ‘‘NSCC Clearing Fund’’ as used herein has the same meaning as the term ‘‘Clearing Fund’’ as provided in the NSCC Rules. Procedure XV of the NSCC Rules provides that all NSCC Clearing Fund requirements and other deposits must be made within one hour of demand, unless NSCC determines otherwise, supra note 8. 21 This is referred to in the Existing Accord as the ‘‘Guaranty Substitution Time,’’ and the process of the substitution of the NSCC Guaranty for the OCC Guaranty in respect of E&A/Delivery Transactions is referred to as ‘‘Guaranty Substitution’’. 22 Guaranty Substitution by NSCC (discussed further below) does not occur with respect to an E&A/Delivery Transaction that is not submitted to NSCC in the proper format or that involves a security that is not identified as an Eligible Security on the then-current NSCC Eligibility Master File. 23 Under NSCC’s Rules, a default would generally be referred to as a ‘‘cease to act’’ and could encompass a number of circumstances, such as an NSCC Member’s failure to make a Required Fund Deposit in a timely fashion. See NSCC Rule 46 (Restrictions on Access to Services), supra note 8. An NSCC Member for which it has ceased to act is referred to in the Existing Accord as a ‘‘Defaulting NSCC Member’’. Transactions associated with a Defaulting NSCC Member are referred to as E:\FR\FM\30AUN1.SGM 30AUN1 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 take effect for the affected transactions pursuant to the NSCC Rules. NSCC is required to promptly notify OCC if it ceases to act for a Common Member. Upon receiving such a notice, OCC would not continue to submit to NSCC any further unsettled transactions that involve such Common Member, unless authorized representatives of both OCC and NSCC otherwise consent. OCC would, however, deliver to NSCC a list of all transactions that have already been submitted to NSCC and that involve such Common Member. The NSCC Guaranty ordinarily would not take effect with respect to transactions for a Common Member for which NSCC has ceased to act, unless both Clearing Agencies agree otherwise. As such, NSCC does not have any existing contractual obligation to guarantee such Common Member’s transactions. To the extent the NSCC Guaranty does not take effect, OCC’s Guaranty would continue to apply, and, as described above, OCC would remain responsible for effecting the settlement of such Common Member’s transactions pursuant to OCC’s By-Laws and Rules. As noted above, the Existing Accord does provide that the Clearing Agencies may agree to permit additional transactions for a Common Member default (‘‘Defaulted NSCC Member Transactions’’) to be processed by NSCC while subject to the NSCC Guaranty. This optional feature, however, creates uncertainty for the Clearing Agencies and market participants about how Defaulted NSCC Member Transactions may be processed following a Common Member default, and also does not provide NSCC with the ability to collect collateral from OCC that it may need to close out these additional transactions. While the optional feature would remain in the agreement as part of this proposal, the proposed changes to the Existing Accord, as described below, could significantly reduce the likelihood that it would be utilized. Proposed Changes to the Existing Accord The proposed changes to the Existing Accord would permit OCC to make a cash payment, referred to as the ‘‘Guaranty Substitution Payment’’ or ‘‘GSP,’’ to NSCC. This cash payment could occur on either or both of the day that the Common Clearing Member becomes a Mutually Suspended Member and on the next business day. Upon NSCC’s receipt of the Guaranty Substitution Payment from OCC, the NSCC Guaranty would take effect for the ‘‘Defaulted NSCC Member Transactions’’ in the Existing Accord. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 Common Member’s transactions, and they would be accepted by NSCC for clearance and settlement.24 OCC could use all Clearing Member contributions to the OCC Clearing Fund 25 and certain Margin Assets 26 of a defaulted Clearing Member to pay the GSP, as described in more detail below. NSCC would calculate the Guaranty Substitution Payment as the sum of the Mutually Suspended Member’s unpaid required deposit to the NSCC Clearing Fund (‘‘Required Fund Deposit’’) 27 and the unpaid Supplemental Liquidity Deposit 28 obligation that is attributable to E&A/Delivery Transactions. The proposed changes to the Existing Accord define how NSCC would calculate the Guaranty Substitution Payment. More specifically, NSCC would first determine how much of the member’s unpaid Clearing Fund requirement would be included in the GSP. NSCC would look at the day-over-day change in gross market value of the Mutually Suspended Member’s positions as well as day-over-day change in the member’s NSCC Clearing Fund requirements. Based on such changes, NSCC would identify how much of the change in the Clearing Fund requirement was attributable to E&A/Delivery Transactions coming from OCC. If 100 percent of the day-over-day change in the NSCC Clearing Fund requirement is attributable to activity coming from OCC, then the GSP would include 100 percent of the member’s NSCC Clearing Fund requirement. If less than 100 percent of the change is attributable to activity coming from OCC, then the GSP would include that percent of the member’s unpaid NSCC Clearing Fund requirement attributable to activity coming from OCC. NSCC would then determine the portion of the member’s unpaid SLD obligation that is attributable to E&A/Delivery Transactions. As noted above, the GSP would be the sum of these two amounts. 24 Acceptance of such transactions by NSCC would be subject to NSCC’s standard validation criteria for incoming trades. See NSCC Rule 7, supra note 8. 25 The term ‘‘OCC Clearing Fund’’ as used herein has the same meaning as the term ‘‘Clearing Fund’’ in OCC’s By-Laws, supra note 4. 26 The term ‘‘Margin Assets’’ as used herein has the same meaning as provided in OCC’s By-Laws, supra note 4. 27 The Required Fund Deposit is calculated pursuant to Rule 4 (Clearing Fund) and Procedure XV (Clearing Fund Formula and Other Matters) of the NSCC Rules, see supra note 8. 28 Under the NSCC Rules, NSCC collects additional cash deposits from those Members who would generate the largest settlement debits in stressed market conditions, referred to as ‘‘Supplemental Liquidity Deposits’’ or ‘‘SLD’’. See Rule 4A of the NSCC Rules, supra note 8. PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 59979 A member’s NSCC Clearing Fund requirement and SLD obligation at NSCC are designed to address the credit and liquidity risks that a member poses to NSCC. The GSP calculation is intended to assess how much of a member’s obligations arise out of activity coming from OCC so that the amount paid by OCC is commensurate with the risk to NSCC of guarantying such activity. To permit OCC to anticipate the potential resources it would need to pay the GSP for a Mutually Suspended Member, each business day, NSCC would provide OCC with (1) Required Fund Deposit and Supplemental Liquidity Deposit obligations, as calculated pursuant to the NSCC Rules, and (2) the gross market value of the E&A/Delivery Transactions and the gross market value of total Net Unsettled Positions (as such term is defined in the NSCC Rules). On options expiry days that fall on a Friday, NSCC would also provide OCC with information regarding liquidity needs and resources, and any intraday SLD requirements of Common Members. Such information would be delivered pursuant to the ongoing information sharing obligations under the Existing Accord (as proposed to be amended) and the Service Level Agreement (‘‘SLA’’) to which both NSCC and OCC are a party pursuant to Section 2 of the Existing Accord.29 The SLA addresses specifics regarding the time, form, and manner of various required notifications and actions described in the Accord and also includes information applicable under the Accord. NSCC and OCC believe the proposed calculation of the Required Fund Deposit portion of the GSP is appropriate because it is designed to provide a reasonable proxy for the impact of the Mutually Suspended Member’s E&A/Delivery Transactions on its Required Fund Deposit. While impact study data did show that the proposed calculation could result in a GSP that overestimates or underestimates the Required Fund Deposit attributable to the Mutually Suspended Member’s E&A/Delivery Transactions,30 current technology 29 OCC provided the revised SLA to the Commission as Exhibit 3C to File No. SR–OCC– 2023–007. 30 The impact study was conducted at the Commission’s request to cover a three-day period and reviewed the ten Common Members with the largest Required Fund Deposits attributable to the Mutually Suspended Member’s E&A/Delivery Transactions. Over the 30 instances in the study, approximately 15 instances resulted in an underestimate of the Required Fund Deposit by an average of approximately $112,900,926, four E:\FR\FM\30AUN1.SGM Continued 30AUN1 59980 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 constraints prohibit NSCC from performing a precise calculation of the GSP on a daily basis for every Common Member.31 Implementing the ability for OCC to make the GSP and cause the E&A/ Delivery Transactions to be cleared and settled through NSCC would promote the ability of OCC and NSCC to be efficient and effective in meeting the requirements of the markets they serve. This is because data demonstrates that the expected size of the GSP would be smaller than the amount of cash that would otherwise be needed by OCC and its Clearing Members to facilitate settlement outside of NSCC. More specifically, based on a historical study of alternate means of settlement available to OCC from September 2021 through September 2022, in the event that NSCC did not accept E&A/Delivery Transactions, the worst-case scenario peak liquidity need OCC identified was $384,635,833,942 for settlement to occur on a gross broker-to-broker basis. OCC estimates that the corresponding GSP in this scenario would have been $863,619,056. OCC also analyzed several other large liquidity demand amounts that were identified during the study if OCC effected settlement on a gross broker-to-broker basis.32 These liquidity demand amounts and the largest liquidity demand amount OCC observed of $384,635,833,942 substantially exceed the amount of liquid resources currently available to OCC.33 By contrast, projected GSPs identified during the study ranged from $419,297,734 to $6,281,228,428. For each of these projected GSP amounts, OCC observed that the Margin Assets and OCC Clearing Fund contributions that would have been required of Clearing Members in these scenarios would have been sufficient to satisfy the amount of the projected GSPs. To help address the current technology constraint that prohibits instances where the proxy calculation was the same as the Required Fund Deposit, and eleven instances of an overestimate of the Required Fund Deposit by an average of approximately $59,654,583. See Exhibit 3D to File No. SR–OCC–2023–007 for additional detail related to the referenced study. 31 OCC and NSCC have agreed that performing the necessary technology build at this time would delay the implementation of this proposal. Therefore, NSCC would consider incorporating those technology updates into future revisions to the Accord, for example in connection with a move to a shorter settlement cycle in the U.S. equities markets. 32 See Exhibit 3A to File No. SR–OCC–2023–007 for additional detail related to the referenced study. 33 As of March 31, 2023, OCC held approximately $10.37 billion in qualifying liquid resources. See OCC Quantitative Disclosure, January–March 2023, available at https://www.theocc.com/riskmanagement/pfmi-disclosures. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 NSCC from performing a precise calculation of the GSP on a daily basis for every Common Member, proposed Section 6(b)(i) of the Existing Accord and related Section 7(d) of the SLA would provide that with respect to a Mutually Suspended Member, either NSCC or OCC may require that the Required Fund Deposit portion of the GSP be re-calculated by calculating the Required Fund Deposit for the Mutually Suspended Member both before and after the delivery of the E&A/Delivery Transactions and utilize the precise amount that is attributable to that activity in the final GSP. If such a recalculation is required, the result would replace the Required Fund Deposit component of the GSP that was initially calculated. The SLD component of the GSP would be unchanged by such recalculation. As the above demonstrates, the GSP is intended to address the significant collateral and liquidity requirements that could be required of OCC Clearing Members in the event of a Common Member default. Allowing OCC to make a GSP payment also is intended to allow for settlement processing to take place through the facilities of NSCC to retain operational efficiencies associated with the settlement process. Alternative settlement means such as broker-tobroker settlement add operational burdens because transactions would need to be settled individually on oneoff bases. In contrast, NSCC’s netting reduces the volume and value of settlement obligations that would need to be closed out in the market.34 Because the clearance and settlement of obligations through NSCC’s facilities following a Common Member default, including netting of E&A/Delivery Transactions with a Common Member’s positions at NSCC, would avoid these potentially significant operational burdens for OCC and its Clearing Members, OCC and NSCC believe that the proposed changes would limit market disruption relating to a Common Member default. NSCC netting significantly reduces the total number of obligations that require the exchange of money for settlement. Allowing more activity to be processed through NSCC’s netting systems would minimize risk associated with the close out of those transactions following the default of a Common Member. Amending the Existing Accord to define the terms and conditions under 34 CNS reduces the value of obligations that require financial settlement by approximately 98%, where, for example $519 trillion in trades could be netted down to approximately $9 trillion in net settlements. PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 which Guaranty Substitution may occur, at OCC’s election, with respect to Defaulted NSCC Member Transactions after a Common Member becomes a Mutually Suspended Member will also provide more certainty to both the Clearing Agencies and market participants generally about how a Mutually Suspended Member’s Defaulted NSCC Member Transactions may be processed. NSCC and OCC have agreed it is appropriate to limit the availability of the proposed provision to the day of the Common Member default and the next business day because, based on historical simulations of cease to act events involving Common Members, most activity of a Mutually Suspended Member is closed out on those days.35 Furthermore, the benefits of netting through NSCC’s systems would be reduced for any activity submitted to NSCC after that time. To implement these proposed changes to the Existing Accord, OCC and NSCC propose to make the following changes. Section 1—Definitions First, new definitions would be added, and existing definitions would be amended in Section 1, which is the Definitions section. The new defined terms would be as follows. • The term ‘‘Close Out Transaction’’ would be defined to mean ‘‘the liquidation, termination or acceleration of one or more exercised or matured Stock Options 36 or Stock Futures 37 contracts, securities contracts, commodity contracts, forward contracts, repurchase agreements, swap agreements, master netting agreements or similar agreements of a Mutually Suspended Member pursuant to OCC Rules 901, 1006 and 1101 through 1111 (including but not limited to Rules 1104 and 1107) and/or NSCC Rule 18.’’ This proposed definition would make it clear that the payment of the Guaranty Substitution Payment and NSCC’s subsequent acceptance of Defaulted NSCC Member Transactions for clearance and settlement are intended to fall within the ‘‘safe harbors’’ provided 35 OCC provided data regarding such events in Exhibit 3B to File No. SR–OCC–2023–007. The information contained therein includes the assumptions and timelines leading up to the declaration of a default for a Common Member and the anticipated timing of OCC’s payment of the GSP. 36 The term ‘‘Stock Options’’ is defined in the Existing Accord within the definition of ‘‘Eligible Securities’’ and refers to options issued by OCC. 37 The term ‘‘Stock Futures’’ is defined in the Existing Accord within the definition of ‘‘Eligible Securities’’ and refers to stock futures contracts cleared by OCC. E:\FR\FM\30AUN1.SGM 30AUN1 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 in the Bankruptcy Code,38 the Securities Investor Protection Act,39 and other similar laws. • The term ‘‘Guaranty Substitution Payment’’ would be defined to mean ‘‘an amount calculated by NSCC in accordance with the calculations set forth in Appendix A [to the Existing Accord (as proposed to be amended)], to include two components: (i) a portion of the Mutually Suspended Member’s Required Fund Deposit deficit to NSCC at the time of the cease to act; and (ii) a portion of the Mutually Suspended Member’s unpaid Supplemental Liquidity Deposit obligation at the time of the cease to act.’’ • The term ‘‘Mutually Suspended Member’’ would mean ‘‘any OCC Participating Member 40 that has been suspended by OCC that is also an NSCC Participating Member 41 for which NSCC has ceased to act.’’ • The term ‘‘Required Fund Deposit’’ would have the meaning ‘‘provided in Rule 4 of NSCC’s Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.’’ • The term ‘‘Supplemental Liquidity Deposit’’ would have the meaning ‘‘provided in Rule 4A of NSCC’s Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.’’ 38 11 U.S.C. 101 et seq., including §§ 362(b)(6), (7), (17), (25) and (27) (exceptions to the automatic stay), §§ 546(e)–(g) and (j) (limitations on avoiding powers), and §§ 555–556 and 559–562 (contractual right to liquidate, terminate or accelerate certain contracts). 39 15 U.S.C. 78aaa–lll, including § 78eee(b)(2)(C) (exceptions to the stay). 40 The term ‘‘OCC Participating Member’’ is defined in the Existing Accord to mean ‘‘(i) a Common Member; (ii) an OCC Clearing Member that is an ‘Appointing Clearing Member’ (as defined in Article I of OCC’s By-Laws) and has appointed an Appointed Clearing Member that is an NSCC Member to effect settlement of E&A/Delivery Transactions through NSCC on the Appointing Clearing Member’s behalf; (iii) an OCC Clearing Member that is an Appointed Clearing Member; or (iv) a Canadian Clearing Member.’’ No changes are proposed to this definition. 41 The term ‘‘NSCC Participating Member’’ is defined in the Existing Accord to mean ‘‘(i) a Common Member; (ii) an NSCC Member that is an ‘Appointed Clearing Member’ (as defined in Article I of OCC’s By-Laws); or (iii) [or Canadian Depository for Securities, or ‘‘CDS’’]. For the avoidance of doubt, the Clearing Agencies agree that CDS is an NSCC Member for purposes of this Agreement.’’ No changes are proposed to this definition. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 The defined terms that would be amended in Section 1 of the Existing Accord are as follows. • The definition for the term ‘‘E&A/ Delivery Transaction’’ generally contemplates a transaction that involves a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC. The definition would be amended to make clear that it would apply in respect of a ‘‘Close Out Transaction’’ of a ‘‘Mutually Suspended Member’’ as those terms are proposed to be defined (described above). • The definition for the term ‘‘Eligible Securities’’ generally contemplates the securities that are eligible to be used for physical settlement under the Existing Accord. The term would be modified to clarify that this may include, for example, equities, exchange-traded funds and exchange-traded notes that are underlying securities for options issued by OCC. Section 6—Default by an NSCC Participating Member or OCC Participating Member Section 6 of the Existing Accord provides that NSCC is required to provide certain notice to OCC in circumstances in which NSCC has ceased to act for a Common Member. Currently, Section 6(A)(ii) of the Existing Accord also requires NSCC to notify OCC if a Common Member has failed to satisfy its Clearing Fund obligations to NSCC, but for which NSCC has not yet ceased to act. In practice, this provision would trigger a number of obligations (described below) when a Common Member fails to satisfy its NSCC Clearing Fund obligations for any reason, including those due to an operational delay. Therefore, OCC and NSCC are proposing to remove the notification requirement under Section 6(A)(ii) from the Existing Accord. Under Section 7(d) of the Existing Accord, NSCC and OCC are required to provide each other with general surveillance information regarding Common Members, which includes information regarding any Common Member that is considered by the other party to be in distress. Therefore, if a Common Member has failed to satisfy its NSCC Clearing Fund obligations and NSCC believes this failure is due to, for example, financial distress and not, for example, due to a known operational delay, and NSCC has not yet ceased to act for that Common Member, such notification to OCC would still occur but would be done pursuant to Section PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 59981 7(d) of the Existing Accord (as proposed to be amended), and not Section 6(A)(ii). Notifications under Section 6 of the Existing Accord (as proposed to be amended) would be limited to instances when NSCC has actually ceased to act for a Common Member pursuant to the NSCC Rules.42 Following notice by NSCC that it has ceased to act for a Common Member, OCC is obligated in turn to deliver to NSCC a list of all E&A/Delivery Transactions (excluding certain transactions for which Guaranty Substitution does not occur) involving the Common Member.43 This provision would be amended to clarify that it applies in respect of such E&A/Delivery Transactions for the Common Member for which the NSCC Guaranty has not yet attached—meaning that Guaranty Substitution has not yet occurred. As described above in the summary of the Existing Accord, where NSCC has ceased to act for a Common Member, the Existing Accord refers to the Common Member as the Defaulting NSCC Member and also refers to the relevant E&A/Delivery Transactions in connection with that Defaulting NSCC Member for which a Guaranty Substitution has not yet occurred as Defaulted NSCC Member Transactions. If the Defaulting NSCC Member is also suspended by OCC, it would be covered by the proposed definition that is described above for a Mutually Suspended Member. For such a Mutually Suspended Member, the proposed changes in Section 6(b) would provide that NSCC, by a time agreed upon by the parties, would provide OCC with the amount of the Guaranty Substitution Payment as calculated by NSCC and related documentation regarding the calculation. The Guaranty Substitution Payment would be calculated pursuant to NSCC’s Rules as that portion of the unmet Required Fund Deposit 44 and Supplemental Liquidity Deposit 45 obligations of the Mutually Suspended Member attributable to the Defaulted NSCC Member Transactions. By a time agreed 42 See Rule 46 (Restrictions on Access to Services) of the NSCC Rules, supra note 8. 43 The section of the Existing Accord that addresses circumstances in which NSCC ceases to act and/or an NSCC Member defaults is currently part of Section 6(a). It would be re-designated as Section 6(b) for organizational purposes. 44 The Required Fund Deposit is calculated pursuant to Rule 4 (Clearing Fund) and Procedure XV (Clearing Fund Formula and Other Matters) of the NSCC Rules, see supra note 8. 45 The Supplemental Liquidity Deposit is calculated pursuant to Rule 4A (Supplemental Liquidity Deposits) of the NSCC Rules, see supra note 8. E:\FR\FM\30AUN1.SGM 30AUN1 59982 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 upon by the parties,46 OCC would then be required to either notify NSCC of its intent to make the full amount of the Guaranty Substitution Payment to NSCC or notify NSCC that it will not make the Guaranty Substitution Payment. If OCC makes the full amount of the Guaranty Substitution Payment, NSCC’s guaranty would take effect at the time of NSCC’s receipt of that payment and the OCC Guaranty would end. The proposed changes would further provide that if OCC does not suspend the Common Member (such that the Common Member would therefore not meet the proposed definition of a Mutually Suspended Member) or if OCC elects to not make the full amount of the Guaranty Substitution Payment to NSCC, then all of the Defaulted NSCC Member Transactions would be exited from NSCC’s CNS Accounting Operation and/or NSCC’s Balance Order Accounting Operation, as applicable, and Guaranty Substitution would not occur in respect thereof. Therefore, NSCC would continue to have no obligation to guarantee or settle the Defaulted NSCC Member Transactions, and the OCC Guaranty would continue to apply to them pursuant to OCC’s ByLaws and Rules.47 Proposed changes to the Existing Accord would also address the application of any Guaranty Substitution Payment by NSCC. Specifically, new Section 6(d) would provide that any Guaranty Substitution Payment made by OCC may be used by NSCC to satisfy any liability or obligation of the Mutually Suspended Clearing Member to NSCC on account of transactions involving the Mutually Suspended Clearing Member for which the NSCC Guaranty applies and to the extent that any amount of assets otherwise held by NSCC for the account of the Mutually Suspended Member (including any Required Fund Deposit or Supplemental Liquidity Deposit) are insufficient to satisfy its obligations related to transactions for which the NSCC Guaranty applies. Proposed changes to Section 6(d) would further provide for the return to OCC of any unused portion of the GSP. With regard to the portion of the Guaranty Substitution Payment that corresponds to a member’s Supplemental Liquidity 46 The time by which OCC would be required notify NSCC of its intent would be defined in the Service Level Agreement. As of the time of this filing, the parties intend to set that time as one hour after OCC’s receipt of the calculated Guaranty Substitution Payment from NSCC. 47 Under the current and proposed terms of the Existing Accord, NSCC would be permitted to voluntarily guaranty and settle the Defaulted NSCC Member Transactions. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 Deposit obligation, NSCC must return any unused amount to OCC within fourteen (14) days following the conclusion of NSCC’s settlement, closeout and/or liquidation. With regard to the portion of the Guaranty Substitution Payment that corresponds to a Required Fund Deposit, NSCC must return any unused amount to OCC under terms agreed to by the parties.48 Other Proposed Changes Certain other technical changes are also proposed to the Existing Accord to conform it to the proposed changes described above. For example, the preamble and the ‘‘whereas’’ clauses in the Preliminary Statement would be amended to clarify that the agreement is an amended and restated agreement and to summarize that the agreement would be modified to contemplate the Guaranty Substitution Payment structure. Section 1(c), which addresses the terms in the Existing Accord that are defined by reference to NSCC’s Rules and Procedures and OCC’s By-Laws and Rules would be modified to state that such terms would have the meaning then in effect at the time of any transaction or obligation that is covered by the agreement rather than stating that such terms have the meaning given to them as of the effective date of the agreement. This change is proposed to help ensure that the meaning of such terms in the agreement will not become inconsistent with the meaning in the NSCC Rules and/or OCC By-Laws and Rules, as they may be modified through proposed rule changes with the Commission. Technical changes would be made to Sections 3(d) and (e) of the Existing Accord to provide that those provisions would not apply in the event new Section 6(b) described above, is triggered. Section 3(d) generally provides that OCC will no longer submit E&A/Delivery Transactions to NSCC involving a suspended OCC Participating Member.49 Similarly, Section 3(e) generally provides that OCC will no longer submit E&A/Delivery Transactions to NSCC involving an NSCC Participating Member 50 for which NSCC has ceased to act. A proposed change would also be made to Section 5 of the Existing Accord to 48 Such amounts would be returned to OCC as appropriate and in accordance with a Netting Contract and Limited Cross-Guaranty, by and among the Depository Trust Company, Fixed Income Clearing Corporation, NSCC and OCC, dated as of January 1, 2003, as amended. 49 See supra note 40 defining OCC Participating Member. 50 See supra note 41 defining NSCC Participating Member. PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 modify a reference to Section 5 of Article VI of OCC’s By-Laws to instead provide that the updated cross-reference should be to Chapter IV of OCC’s Rules. Section 5 would also be amended to clarify that Guaranty Substitution occurs when NSCC has received both the Required Fund Deposit and Supplemental Liquidity Deposit, as calculated by NSCC in its sole discretion, from Common Members. The addition of the collection of the Supplemental Liquidity Deposit to the definition of the Guaranty Substitution Time in this Section 5 would reflect OCC and NSCC’s agreement that both amounts are components of the Guaranty Substitution Payment (as described above) and would make this definition consistent with that agreement. In Section 7 of the Existing Accord, proposed changes would be made to provide that NSCC would provide to OCC information regarding a Common Member’s Required Fund Deposit and Supplemental Liquidity Deposit obligations, to include the Supplemental Liquidity Deposit obligation in this notice requirement, and additionally that NSCC would provide OCC with information regarding the potential Guaranty Substitution Payment for the Common Member. On an options expiration date that is a Friday, NSCC would, by close of business on that day, also provide to OCC information regarding the intra-day liquidity requirement, intra-day liquidity resources and intra-day calls for a Common Member that is subject to a Supplemental Liquidity Deposit at NSCC. Finally, Section 14 of the Existing Accord would be modernized to provide that notices between the parties would be provided by email rather than by hand, overnight delivery service or firstclass mail. Proposed Changes to OCC By-Laws and Rules General Description OCC is also proposing certain changes to its By-Laws and Rules that are designed to complement the proposed changes described above regarding the Existing Accord. These proposed changes to the By-Laws and Rules are described below, and they generally cover the following four areas. First, the proposed changes would define Guaranty Substitution Payment. Second, the proposed changes would describe the circumstances under which OCC could make a Guaranty Substitution Payment to NSCC. Third, the proposed changes would specify what financial E:\FR\FM\30AUN1.SGM 30AUN1 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices resources could be used by OCC to make the Guaranty Substitution Payment.51 Fourth, the proposed changes to OCC’s Comprehensive Stress Testing and Clearing Fund Methodology, and Liquidity Risk Management Description would outline enhanced stress testing incorporating the GSP and OCC’s ability to call for additional resources from Clearing Members. OCC also is proposing changes to OCC’s Liquidity Risk Management Framework to account for OCC’s ability to make the GSP. Article I—Definitions OCC proposes to add ‘‘Guaranty Substitution Payment’’ as a new defined term under Article I of OCC’s By-Laws, which is the Definitions section. The term ‘‘Guaranty Substitution Payment’’ would be defined to mean: ‘‘a payment that may be made by [OCC] to [NSCC] under the terms of an agreement between them, as described in Rule 901, so that [NSCC] will not reject settlement obligations for CCC-eligible 52 securities that are directed by [OCC] for settlement through the facilities of [NSCC] on account of a Clearing Member that has been suspended, as described in Rule 1102, and for which [NSCC] has ceased to act.’’ lotter on DSK11XQN23PROD with NOTICES1 Chapter IX—Delivery of Underlying Securities and Payment Certain changes are also proposed to Chapter IX of OCC’s Rules. OCC proposes to add parenthetical language to the Introduction section of Chapter IX of OCC’s Rules. It would specify that a Guaranty Substitution Payment could be made by OCC to NSCC in connection with OCC’s general policy that to the extent a security to be delivered and received is CCC-eligible, OCC will direct the delivery and payment obligations to be settled through the facilities of NSCC where the obligations are physicallysettled and arise out of the exercise of stock option contracts or the maturity of stock futures contracts. Next, OCC proposes to delete certain provisions from Rule 901(b) regarding when a Guaranty Substitution occurs. 51 OCC would be permitted to borrow from the Clearing Fund and margin of a suspended Clearing Member, over which OCC has a general lien, where that Clearing Member is a Mutually Suspended Member. The change would merely expand the circumstances under which OCC’s current By-Laws and Rules permit OCC to borrow Clearing Fund and margin. The change would not affect the treatment of such borrowing under OCC’s default waterfall that determines how OCC allocates losses against available financial resources. The Mutually Suspended Member’s margin and Clearing Fund collateral would remain first in line to absorb losses. 52 The term ‘‘CCC-Eligible’’ as used herein has the meaning provided in OCC’s By-Laws, supra note 4. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 Specifically, Rule 901(b) currently provides that unless otherwise agreed between OCC and NSCC, a Guaranty Substitution with respect to settlement obligations for CCC-eligible securities that settle ‘‘regular way’’ under NSCC’s Rules and Procedures will occur if: (i) the applicable settlement obligations are reported to and are not rejected by NSCC; (ii) NSCC has not notified OCC that it has ceased to act for the relevant Clearing Member or Appointed Clearing Member; and (iii) the NSCC Clearing Fund requirements of the relevant Clearing Member or Appointed Clearing Member owing to NSCC, as determined in accordance with NSCC’s Rules and Procedures, are received by NSCC. These considerations regarding when a Guaranty Substitution occurs are addressed under the terms of the Existing Accord, and they would continue to be relevant considerations regarding when a Guaranty Substitution occurs under the changes that OCC and NSCC are proposing to the Existing Accord. However, because additional considerations would be added to the Guaranty Substitution process in connection with the proposed ability for OCC in certain circumstances to make a Guaranty Substitution Payment to NSCC and also to eliminate the potential for a description of the Guaranty Substitution process in OCC’s Rules to become inconsistent with the process that OCC and NSCC have agreed to in the Existing Accord, as it would be amended, OCC is proposing to delete the discussion of these considerations in Rule 901(b) in favor of instead simply cross referencing the terms of the agreement.53 In addition, OCC proposes to add a new paragraph to the end of Rule 901(b) to provide that pursuant to the proposed changes to the Existing Accord, OCC would be permitted to make a Guaranty Substitution Payment to NSCC. The proposed changes would also describe the circumstances in which OCC may make a Guaranty Substitution Payment in connection with settlement obligations of a suspended Clearing Member, and that the amount of the Guaranty Substitution Payment under the terms of the Existing Accord, as amended, would be the amount required by NSCC to satisfy its deficit(s) regarding such Clearing Member’s 53 For purposes of the proposed rule change process under Exchange Act Section 19(b), the agreement is treated as a rule of a clearing agency under Exchange Act Section 3(a)(27) and therefore any proposed changes to it by OCC are subject to the related rule change process and public notice and comment. OCC therefore believes that addressing the terms in the agreement and crossreferencing the agreement in OCC Rule 901 would not deprive the Commission or the public of notice regarding any future proposed changes. PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 59983 ‘‘Required Fund Deposit’’ and ‘‘Supplemental Liquidity Deposit’’ as those terms are defined in NSCC’s Rules and Procedures.54 The changes would provide that any amount of a Guaranty Substitution Payment that NSCC does not use pursuant to its Rules and Procedures would subsequently be returned to OCC under such terms and within such times as are agreed by OCC and NSCC. OCC believes that it is useful to include this description of the proposed process for the Guaranty Substitution Payment and the circumstances in which it may be made so that a user of OCC’s publicly available By-Laws and Rules would have sufficient information to understand the existence of the Guaranty Substitution Payment mechanism, the general circumstances in which it may be made and the role that a Guaranty Substitution Payment would play in causing NSCC to accept obligations for CCC-eligible securities for clearance and settlement. Chapters X and XI—Clearing Fund Contributions and Suspension of a Clearing Member As generally described above, the proposed changes would also provide that OCC would be permitted to borrow from the OCC Clearing Fund, and also against certain Margin Assets, of a Clearing Member that has been suspended by OCC where that Clearing Member is a Mutually Suspended Member. To implement these changes, OCC is proposing the following amendments to OCC Rule 1006 and Rule 1104. OCC Rule 1006 addresses the purpose and permitted uses of the OCC Clearing Fund. OCC proposes to make amendments to paragraphs (a) and (f) to permit OCC to utilize assets in the Clearing Fund as a liquidity resource in connection with making a Guaranty Substitution Payment. Currently, OCC Rule 1006(a) states the conditions for use of the OCC Clearing Fund. These provide that the OCC Clearing Fund may be used for borrowings pursuant to OCC Rule 1006(f) or to make good losses or expenses suffered by OCC including: (i) as a result of the failure of any Clearing Member to discharge duly any obligation on or arising from any confirmed trade accepted by OCC, (ii) as a result of the failure of any Clearing Member (including any Appointed Clearing Member) or of CDS (Canada’s national securities depository) to perform its obligations under any 54 See NSCC Rules 4 (defining ‘‘Required Fund Deposit’’) and 4A (defining ‘‘Supplemental Liquidity Deposit’’), supra note 8. E:\FR\FM\30AUN1.SGM 30AUN1 59984 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 contract or obligation issued, undertaken, or guaranteed by OCC or in respect of which OCC is otherwise liable, (iii) as a result of the failure of any Clearing Member to perform any of its obligations to OCC in respect of the stock loan and borrow positions of such Clearing Member, (iv) in connection with any liquidation of a Clearing Member’s open positions, (v) in connection with protective transactions effected for the account of OCC pursuant to Chapter XI of OCC’s Rules (delivery of underlying securities and payment), (vi) as a result of the failure of any Clearing Member to make any other required payment or render any other required performance or (vii) as a result of the failure of any bank, securities or commodities clearing organization, or investment counterparty, to perform its obligations to OCC for certain specified reasons. 55 OCC proposes to renumber clauses (iii) through (vii) in paragraph (a) as (iv) through (viii), and to insert as new clause (iii) a provision that the OCC Clearing Fund may be used ‘‘regarding any Guaranty Substitution Payment that [OCC] may make to [NSCC] under an agreement between them, as described in [OCC] Rule 901, so that [NSCC] will not reject settlement obligations for CCC-eligible securities involving a Clearing Member for which [NSCC] has ceased to act and that [OCC] directs to [NSCC] for settlement through its facilities.’’ 56 OCC also proposes to add parenthetical language to paragraphs (f)(1)(A) and f(2)(A)(ii) to further clarify that contributions to the OCC Clearing Fund may be borrowed by OCC for use in connection with making a Guaranty Substitution Payment to NSCC. Any borrowing from the OCC Clearing Fund by OCC to make a Guaranty Substitution Payment to NSCC would be subject to the existing terms of OCC Rule 1006(f)(3) that provide that irrespective of how any such borrowings from the OCC Clearing Fund are applied by OCC, the borrowing for a period not to exceed thirty (30) days will not be deemed to result in charges against the OCC Clearing Fund under OCC’s default waterfall for allocating actual losses. For purposes of determining whether a loss resulting from a Guaranty Substitution Payment has occurred, OCC Rule 1006(f)(3) would be amended to provide that the Guaranty Substitution Payment 55 The terms ‘‘Clearing Member’’ and ‘‘Appointed Clearing Member’’ as used herein have the meanings provided in OCC’s By-Laws, supra note 4. 56 In connection with these amendments, the reference in Rule 1006(b) to ‘‘clauses (i) through (vi) of paragraph (a)’’ would be changed to ‘‘clauses (i) through (vii) of paragraph (a)’’. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 is deemed to be repaid by OCC at such time as under the Accord that it is NSCC’s obligation to return any portion of the Guaranty Substitution Payment that NSCC does not use pursuant to its rules. If, subsequent to the borrowing, OCC determines that the borrowing represents an actual loss or all or any part of the borrowing remains outstanding after thirty (30) days (or on the first Business Day thereafter if the thirtieth calendar day is not a Business Day) then the amount of OCC Clearing Fund assets used in the outstanding borrowing would be an actual loss that OCC would be required to immediately allocate under its By-Laws and Rules.57 As noted above, losses resulting from the borrowing of Clearing Fund or Margin Assets as a liquidity resource to facilitate OCC making a Guaranty Substitution Payment would be allocated in the same sequence as any other losses charged to the default waterfall. Consistent with these changes to permit OCC to use the OCC Clearing Fund as a borrowing resource to make a Guaranty Substitution Payment to NSCC, OCC is also proposing similar changes to OCC Rule 1104 that would permit OCC to borrow certain Margin Assets of a Clearing Member that has been suspended by OCC where that Clearing Member is a Mutually Suspended Member and OCC has a general lien 58 over the Margin Assets. Specifically, OCC proposes to add a new paragraph (g) to OCC Rule 1104 that would provide that OCC may use specified Margin Assets of a suspended Clearing Member as a borrowing in order to use such borrowed Margin Assets to make a Guaranty Substitution Payment to NSCC. OCC would be permitted to use Margin Assets from the following accounts of a suspended Common Member: firm lien account and firm non-lien account; separate MarketMaker’s account; combined MarketMaker’s account; and JBO Participants’ account.59 OCC is not proposing at this 57 If the defaulting OCC Clearing Member’s Margin Assets and OCC Clearing Fund contribution were insufficient to cover the associated losses, OCC would next look to certain OCC financial resources that are available for that purpose (e.g., OCC’s corporate contribution and Clearing Fund contributions of non-defaulting OCC Clearing Members). 58 Article I, Section 1.G.(1) of OCC’s By-Laws states that the ‘‘term ‘general lien’ means a security interest of [OCC] in all or specified assets in a Clearing Member account as security for all of the Clearing Member’s obligations to [OCC] regardless of the source or nature of such obligations.’’ See OCC By-Laws, supra note 4. 59 The Clearing Member accounts referenced herein are described in subparagraphs (a), (b), (c) and (h) of Article VI, Section 3 of OCC’s By-Laws. See OCC’s By-Laws, supra note 4. PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 time to have authority to borrow Margin Assets from other types of accounts over which OCC has a restricted lien 60 and for which the Margin Assets are security for the particular restricted lien accounts because of additional complexity that OCC believes would be associated with tracking NSCC’s use of Margin Assets associated with those accounts and also due to certain regulatory requirements under Commission Rule 15c3–3 that apply to broker-dealer Clearing Members and prohibit the use of customer property of the broker-dealer to support noncustomer activities.61 As with the terms that currently apply to any borrowing from the OCC Clearing Fund pursuant to OCC Rule 1006(f), new paragraph (g) in OCC Rule 1104 would further provide that Margin Assets borrowed by OCC to make a Guaranty Substitution Payment to NSCC would not be deemed to be charges against the margin assets for the relevant account(s) for up to thirty (30) days; however, if all or a part of such borrowing were to be determined by OCC, in its discretion, to represent an actual loss, or if all or a part of the borrowing were to remain outstanding after such thirty (30)-day period, OCC would consider the amount of margin assets used to support OCC’s obligations under the outstanding borrowing or transaction as an actual loss and immediately allocate the loss in accordance with OCC’s By-Laws and Rules. OCC anticipates that in a scenario in which it would be permitted make a Guaranty Substitution Payment to NSCC under the proposed changes to the Existing Accord and OCC’s By-Laws and Rules, OCC would generally expect to borrow from the Clearing Fund as a primary liquidity resource. OCC could also borrow Margin Assets of the suspended Clearing Member that is a 60 Article I, Section 1.R.(8) of OCC’s By-Laws states that the ‘‘term ‘restricted lien’ means a security interest of [OCC] in specified assets (including any proceeds thereof) in an account of a Clearing Member with [OCC] as security for the Clearing Member’s obligations to [OCC] arising from such account or, to the extent so provided in the By-Laws or Rules, a specified group of accounts that includes such account including, without limitation, obligations in respect of all confirmed trades effected through such account or group of accounts, and exercise notices assigned to such account or group of accounts.’’ See OCC’s By-Laws, supra note 4. 61 For example, under the broker-dealer customer reserve account formula to SEC Rule 15c3–3 the broker-dealer takes a debit in the formula under Item 13 for margin that is ‘‘required and on deposit with OCC for all option contracts written or purchased in customer accounts.’’ This means that such margin in turn can be used by the brokerdealer Clearing Member as Margin Assets to support the securities customers’ account at OCC. E:\FR\FM\30AUN1.SGM 30AUN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices Common Member under the proposed terms described above. OCC is not proposing changes that would require a specific borrowing sequence because OCC believes that it is more appropriate to preserve flexibility to borrow from the available OCC Clearing Fund or Margin Assets as OCC determines appropriate under the circumstances. In addition, OCC proposes to specify in OCC Rule 1107(a)(1) that exercised option contracts and matured, physically-settled stock futures to which the suspended Clearing Member is a party may be settled in accordance with the terms of any agreement between OCC and NSCC governing the settlement of exercised option contracts and matured, physically-settled stock futures of a suspended Clearing Member. In such an event, settlement will be governed by and subject to the agreement between OCC and NSCC and the rules of NSCC. The purpose of the proposed changes to create the Guaranty Substitution Payment mechanism is to provide OCC and NSCC with an additional default management tool to help manage liquidity and settlement risks that OCC believes would be presented to each covered clearing agency in connection with a Mutually Suspended Member. OCC believes that having the ability to make a Guaranty Substitution Payment to NSCC in regard to any unmet Required Fund Deposit or Supplemental Liquidity Deposit obligations of a Mutually Suspended Member would promote prompt and accurate clearance and settlement in the national system for the settlement of securities transactions by causing NSCC to guarantee certain securities settlement obligations that result from exercised options and matured futures contracts that are cleared and settled by OCC. In the following ways, OCC believes that this would be beneficial to and protective of OCC, NSCC, their participants, and the markets they serve. First, OCC’s ability to make the Guaranty Substitution Payment would ensure that the relevant securities settlement obligations would be accepted by NSCC for clearance and settlement and therefore the size of the related settlement obligations could be decreased from netting through NSCC’s CNS Accounting Operation and/or NSCC’s Balance Order Accounting Operation. Second, this outcome would avoid a scenario in which OCC’s Guaranty would continue to apply and the settlement obligations would be settled on a broker-to-broker basis between OCC Clearing Members pursuant to the applicable provisions in Chapter IX of OCC’s Rules. As noted VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 above, OCC believes that such a brokerto-broker settlement scenario could result in substantial collateral and liquidity requirements for OCC Clearing Members. OCC believes that these potential collateral and liquidity consequences would be due to the lost benefit of netting of the settlement obligations through NSCC’s facilities and also due to the short time (i.e., the T+2 standard settlement cycle) between a rejection by NSCC of the settlement obligations for clearing and the associated settlement date on which settlement would be otherwise required to be made bilaterally by OCC Clearing Members. This scenario also raises the potential for procyclical liquidity demands on OCC Clearing Members and participants during stressed market conditions. Third, OCC will plan to size its liquidity resource requirements to reasonable expectations with a high probability of making a Guaranty Substitution Payment in order to facilitate the settlement of a Mutually Suspended Member’s obligations through NSCC. Accounting for net liquidity demands from a Mutually Suspended Member’s settlement obligations at the central counterpartylevel enhances liquidity in the financial system and promotes the efficient use of capital by reducing the demand for liquidity associated with gross settlement of obligations and enabling the application of resources at both clearing agencies to satisfy the Member’s obligation. Fourth, OCC believes that the potential for the size of the settlement obligations to be comparatively larger than the Guaranty Substitution Payment coupled with the short time remaining to settlement could also increase the risk of default by the affected OCC Clearing Members at a time when a Common Member has already been suspended. Therefore, OCC believes that the proposed changes to implement the ability for OCC to make a Guaranty Substitution Payment to NSCC would allow OCC to avoid these risks by causing NSCC to accept the relevant obligations arising from exercised options and matured futures cleared and settled by OCC, as it ordinarily would, and guarantee their settlement, upon OCC making a Guaranty Substitution Payment to NSCC in accordance with the revised Accord. Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description OCC proposes to revise the OCC Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description to include the GSP in its liquidity risk PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 59985 management practices. Overall, the proposed changes would reflect that the GSP functions as an additional liquidity demand type at the Clearing Member Organization (‘‘CMO’’) Group level.62 OCC would include additional specifics to address the potential increased demand that the inclusion of the GSP may cause in its liquidity risk management practices in the Liquidity Risk Management section of the Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description. Specifically, OCC proposes to amend the Liquidity Demand for Positions Rejected by NSCC subsection, which describes the Existing Accord, including the scenario in which NSCC could choose not to guaranty certain securities settlement obligations arising out of transactions cleared by OCC. This subsection would be retitled as the Liquidity Demand Associated with NSCC Performance of Physical Settlement Activities subsection to more clearly describe its content and incorporate the GSP, as further detailed below. Consistent with the changes to the Existing Accord described above, OCC proposes to clarify that the Accord allows NSCC to reject such obligations if OCC elects to not make a GSP. OCC proposes a new subsection, titled the Liquidity Demand GSP, to describe the GSP, which NSCC would calculate as defined in the proposed amendments to the Existing Accord. OCC would describe a GSP as a firm specific liquidity demand (i.e., the amount of cash OCC needs to pay NSCC on behalf of the defaulting Common Member). OCC would describe the components of the GSP under the Accord. OCC would explain how it accounts for the liquidity demand associated with a potential GSP. Specifically, OCC would apply an amount to account for a potential GSP obligation for every day on which option expirations occur. This amount would be based on peak GSP amounts from the prior 12 months in a given expiration category for the specific CMO Group for each forecasted liquidity demand calculation. OCC will use a one-year lookback time period to determine the appropriate GSP amount to apply. The one-year lookback allows for the best like-to-like application of a historical GSP as there is a cyclical nature to option standard expirations with quarterly (i.e., March, June, September, and December) and January generally being more impactful than non-quarterly expirations. The one-year lookback also allows behavior changes 62 A Clearing Member Group is composed of a set of affiliated OCC Clearing Members. E:\FR\FM\30AUN1.SGM 30AUN1 59986 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 of a Clearing Member to be recognized within an annual cycle. OCC proposes to utilize a historical GSP based on current system capabilities and data that will be supplied by NSCC. OCC would use the total amount of Clearing Fund and SLD deficits at NSCC in its calculation to account for its obligation. However, in the event of a default, OCC would be responsible for a proportionate share of both NSCC Clearing Fund deficits (which are analogous to OCC margin deficits) and SLDs that are attributable to OCC E&A activity transmitted to NSCC for settlement, whereas NSCC will be responsible for the portion of the Clearing Fund and SLD deficits associated with activity that NSCC clears that is not transmitted by OCC. The amount of notional activity sent by OCC to NSCC informs the likelihood of a GSP. Namely, the potential amount of NSCC Clearing Fund and SLD deficits that are allocable to OCC increases as the amount of activity OCC sends to NSCC increases. Since not all types of expirations are the same with respect to the notional amount of activity sent by OCC to NSCC, OCC proposes to use five separate categories of expirations with potentially different GSP amounts to apply. Each day on which expirations occur would fall into one of five categories as follows: • Standard Monthly Expiration: typically the third Friday of each month from the previous twelve months; • Non-Standard Monthly Expiration Fridays (‘‘End of Week Expirations’’): the last business day of every week, typically a Friday, excluding the third Friday of each month from the previous twelve months; • End of Month Expirations: the last trading day of every month from the previous twelve months; • Expirations falling on Bank Holidays where Markets Are Open (‘‘Bank Holiday Expirations’’): days where banks are closed but the markets are open from the previous twelve months; 63 63 The Bank Holiday category recognizes that for Veterans Day and Columbus Day, the equity and equity derivative markets are open for trading, but the banking system is closed for the day. Since the banking system is closed while the aforementioned markets are open, settlement at NSCC encompasses two days of equity trading and equity derivative E&A activity. As OCC is using NSCC deficit numbers without regard for allocation, there is a possibility of a significant outlying GSP requirement due to the settlement of two days of activity simultaneously. Prudence dictates retaining the capability to risk manage a day with such disparate characteristics differently. Additional supporting data in support of the creation of the Bank Holiday Expiration category is included as Exhibit 3E to File No. SR–OCC–2023–007. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 • Remaining Expiration Days (‘‘Daily Expirations’’): All other days with an expiration from the previous twelve months that do not fall into any of the categories above (typically most Mondays through Thursdays) from the previous twelve months. OCC believes these five categories are appropriate after an analysis of notional activity sent to NSCC by OCC.64 More specifically, the standard Friday monthly expiration far exceeds the needs associated with any other category.65 The remaining categories are intended to capture like time periods that will appropriately account for the GSP. OCC would apply the peak GSP amounts from the prior twelve months in a given expiration category for the specific CMO Group for each forecasted liquidity demand calculation by adding the GSP amounts to the CMO Group’s other forecasted liquidity demands for the relevant expiration day.66 If a Clearing Member defaults, OCC may have to pay a GSP to NSCC on two successive days to facilitate the closeout of the defaulted Clearing Member’s positions. To account for this possibility in its liquidity risk management process, OCC contemplates the payment of a GSP on expirations that result in settlements on the first and second days of the default management process. As described above, this GSP amount may serve to only increase liquidity demands.67 Furthermore, as stated in the new Liquidity Demand GSP subsection, OCC would apply a floor to certain expirations. At a minimum, the GSPs applied to the End of Week, End of Month, and Bank Holiday Expirations will be no lower than the peak of the Daily Expirations category. If a GSP pertaining to the End of Week, End of Month, and Bank Holiday Expiration category is higher than the peak of the Daily Expirations category, then OCC 64 OCC provided its analysis of notional activity sent to NSCC by OCC in support of the creation of the five categories as Exhibit 3E to File No. SR– OCC–2023–007. This Exhibit 3E sets forth data related to OCC’s liquidity stress testing, including Available Liquidity Resources, Minimum Cash Requirement thresholds, and/or liquidity breaches, for Sufficiency and Adequacy scenarios with and without the inclusion of the GSP. 65 For example, the average notional transfer for Remaining Expiration Days is approximately 10% the size of Standard Expiration. 66 As an example, if the applicable GSP is $100 and the (current) stressed liquidity demand is $150 for a Clearing Member Group, the result after the application of the GSP for that Clearing Member Group would be a combined liquidity requirement of $250 versus $150 currently. 67 OCC provided its analysis of the impact of the GSP, including with respect to calls for collateral and liquidity demands as Exhibit 3E to File No. SR– OCC–2023–007. PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 will apply that higher GSP. Standard Monthly Expirations will be floored by End of Week, End of Month, and Daily Expirations. If a GSP pertaining to any of these categories is higher than the Standard Monthly Expiration category, then OCC will apply that higher GSP. OCC would set out formulas representing the floors for the Standard Monthly, End of Week, End of Month, and Bank Holiday Expirations. Finally, OCC also proposes a minor change to clarify that it would attempt to effect alternative settlement if OCC elected not to make a GSP.68 Liquidity Risk Management Framework OCC proposes changes to the Liquidity Risk Management Framework to incorporate the GSP. In the Liquidity Risk Identification section, OCC would specify that, in the situation where a member defaults immediately preceding, or during the expiration, of physically-settled E&A activity, OCC may elect to make a GSP to NSCC to compel NSCC to accept and process the E&A activity. If OCC elects to not make a GSP, OCC would complete settlement of the defaulted Clearing Member’s E&A transactions through its current process. Relatedly, OCC would include a minor clarification to a footnote in this section to note that NSCC is not acting on behalf of a defaulting Clearing Member ‘‘in this situation.’’ (2) Statutory Basis OCC believes the proposed changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, OCC believes the proposed changes are consistent with Section 17A(b)(3)(F) of the Act.69 Section 17A(b)(3)(F) 70 of the Act 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, in general, to protect investors and the public interest. As described above, OCC believes that modifying its stress testing procedures to enhance its ability to call for additional liquidity resources and having the ability to make a Guaranty Substitution Payment to NSCC with respect to any unmet obligations of a Mutually Suspended Member would promote prompt and accurate clearance and settlement because it would ensure 68 This clarification would maintain OCC’s current process for settling transactions not processed through NSCC, and does not represent the adoption of a new process or settlement method. 69 15 U.S.C. 78q–1(b)(3)(F). 70 15 U.S.C. 78q–1(b)(3)(F). E:\FR\FM\30AUN1.SGM 30AUN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices that NSCC accepts the relevant securities settlement obligations for clearance and settlement and therefore the size of the related settlement obligations for both the Mutually Suspended Member and its assigned delivery counterparties could be decreased from netting through NSCC’s CNS Accounting Operation and/or NSCC’s Balance Order Accounting Operation. This would also avoid a scenario in which OCC’s Guaranty would continue to apply and the settlement obligations would be settled on a broker-to-broker basis between OCC Clearing Members, which OCC believes could result in substantial collateral and liquidity requirements for OCC Clearing Members and that, in turn, could also increase a risk of default by the affected OCC Clearing Members at a time when a Common Member has already been suspended. For these reasons, OCC believes that the proposed changes would be beneficial to and protective of OCC, NSCC, their participants, and the markets that they serve and that the proposed changes are therefore designed, in general, to protect investors and the public interest. OCC believes that the proposed changes are also consistent with the SEC rules that apply to OCC as a covered clearing agency.71 In particular, SEC Rule 17Ad–22(e)(20) requires OCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to identify, monitor and manage risks related to any link that OCC establishes with one or more other clearing agencies, financial market utilities, or trading markets.72 As described in OCC’s publicly available disclosure framework for financial market infrastructures,73 the Existing Accord between OCC and NSCC is one such link. As described above, OCC believes (i) the proposed modifications to OCC’s stress testing procedures that are designed to enhance its ability to call for additional liquidity resources, and (ii) that implementation of the ability for OCC to make a Guaranty Substitution Payment to NSCC in the relevant circumstances involving a Mutually Suspended Member would help manage the risks presented to OCC and its Clearing Members by the settlement link with NSCC because the Guaranty Substitution Payment would ensure that the relevant securities settlement obligations would be 71 17 CFR 240.17Ad–22(a)(5). CFR 240.17Ad–22(e)(20). 73 See The Options Clearing Corporation Disclosure Framework for Financial Market Infrastructures, pg. 108, (2022), available at https:// www.theocc.com/risk-management/pfmidisclosures. 72 17 VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 accepted by NSCC for clearance and settlement and therefore the size of the related settlement obligations could be decreased from netting through NSCC’s CNS Accounting Operation and/or NSCC’s Balance Order Accounting Operation. For this same reason, OCC also believes that the proposed changes are consistent with the requirements of SEC Rules 17Ad–22(e)(3) and (7).74 SEC Rule 17Ad–22(e)(3) requires OCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to maintain a sound risk management framework for comprehensively managing, among other things, liquidity, credit and other risks that arise in or are borne by OCC.75 SEC Rule 17Ad–22(e)(7) requires OCC, in relevant part, to establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively measure, monitor and manage the liquidity risk that arises in or is borne by OCC and to, among other things, address foreseeable liquidity shortfalls that would not be covered by OCC’s liquid resources.76 As noted, OCC believes the proposed stress testing enhancements and the ability to make a Guaranty Substitution Payment to NSCC would allow OCC to better manage liquidity and credit risks related to the settlement link with NSCC by ensuring that the relevant securities settlement obligations would be accepted by NSCC for clearance and settlement. It would avoid a scenario in which OCC’s Guaranty would continue to apply and the settlement obligations would be settled on a broker-to-broker basis between OCC Clearing Members, which OCC believes could result in substantial collateral and liquidity requirements for OCC Clearing Members that, in turn, could also increase a risk of default by the affected OCC Clearing Members, particularly in circumstances where the prior suspension of a Mutually Suspended Member relates to broader stress in the financial system. Moreover, the incorporation of the Guarantee Substitution Payment into OCC’s liquidity risk management practices would enhance OCC’s ability to maintain additional liquidity resources to effect the settlement of exercise and assignment activity in the event of a Common Member default, and therefore, potentially increasing the promotion of market stability. 74 17 CFR 240.17Ad–22(e)(3), (7). CFR 240.17Ad–22(e)(3). 76 17 CFR 240.17Ad–22(e)(7). 75 17 PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 59987 (B) Clearing Agency’s Statement on Burden on Competition Section 17A(b)(3)(I) of the Act 77 requires that the rules of a clearing agency not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. OCC does not believe that the proposal would impose any burden on competition. The proposed changes would implement changes that would permit OCC in certain circumstances to make a Guaranty Substitution Payment to NSCC so that the NSCC Guaranty would take effect for the Defaulted NSCC Member Transactions and the OCC Guaranty would end. The proposed changes would not inhibit access to OCC’s services in any way, applies to all Clearing Members and does not disadvantage or favor any particular user in relationship to another user. Accordingly, OCC does not believe that the proposed rule change would have any impact or impose a burden on competition. (C) Clearing Agency’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received. 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 such proposed rule change, or (B) institute proceedings to determine whether the proposed rule change should be disapproved. The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed. The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.78 77 15 U.S.C. 78q–1(b)(3)(I). its immediate effectiveness, implementation of this rule change will be delayed until this change is deemed certified under CFTC Regulation 40.6. 78 Notwithstanding E:\FR\FM\30AUN1.SGM 30AUN1 59988 Federal Register / Vol. 88, No. 167 / Wednesday, August 30, 2023 / Notices IV. Solicitation of Comments Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: 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– OCC–2023–007 on the subject line. Paper Comments lotter on DSK11XQN23PROD with NOTICES1 • 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–2023–007. 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 filing also will be available for inspection and copying at the principal office of OCC and on OCC’s website at https://www.theocc.com/CompanyInformation/Documents-and-Archives/ By-Laws-and-Rules. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR–OCC–2023–007 and should be submitted on or before September 20, 2023. VerDate Sep<11>2014 17:31 Aug 29, 2023 Jkt 259001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.79 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–18673 Filed 8–29–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION [Release No. 34–98214; File No. SR–OCC– 2023–801] Self-Regulatory Organizations; the Options Clearing Corporation; Notice of Filing and Extension of Review Period of Advance Notice Concerning Modifications to the Amended and Restated Stock Options and Futures Settlement Agreement Between the Options Clearing Corporation and the National Securities Clearing Corporation August 24, 2023. Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled Payment, Clearing and Settlement Supervision Act of 2010 (‘‘Clearing Supervision Act’’) 1 and Rule 19b–4(n)(1)(i) 2 under the Securities Exchange Act of 1934 (‘‘Exchange Act’’),3 notice is hereby given that on August 10, 2023, the Options Clearing Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) an advance notice as described in Items I, II and III below, which Items have been prepared by OCC. The Commission is publishing this notice to solicit comments on the advance notice from interested persons and to extend the review period of the advance notice. I. Clearing Agency’s Statement of the Terms of Substance of the Advance Notice This advance notice is submitted by OCC in connection with a prosed change to its operations to (1) modify the Amended and Restated Stock Options and Futures Settlement Agreement dated August 5, 2017 between OCC and National Securities Clearing Corporation (‘‘NSCC,’’ and together with OCC, the ‘‘Clearing Agencies’’) (‘‘Existing Accord’’) 4 and (2) 79 17 CFR 200.30–3(a)(12). U.S.C. 5465(e)(1). 2 17 CFR 240.19b–4(n)(1)(i). 3 15 U.S.C. 78a et seq. 4 The Existing Accord was previously approved by the Commission. See Securities Exchange Act Release Nos. 81266, 81260 (July 31, 2017) (File Nos. SR–NSCC–2017–007; SR–OCC–2017–013), 82 FR 36484 (Aug. 4, 2017). 1 12 PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 make certain revisions to OCC By-Laws, OCC Rules,5 OCC’s Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description and OCC’s Liquidity Risk Management Framework in connection with the proposed modifications to the Existing Accord, as described in greater detail below.6 The proposed changes would permit OCC to elect to make a cash payment to NSCC following the default of a common clearing participant that would cause NSCC’s central counterparty trade guaranty to attach to certain obligations of that participant, as described in greater detail below. The proposed changes are included in Exhibits 5A and 5B and confidential Exhibits 5C, 5D, and 5E to File No. SR– OCC–2023–801. Material proposed to be added is underlined and material proposed to be deleted is marked in strikethrough text. II. Clearing Agency’s Statement of the Purpose of, and Statutory Basis for, the Advance Notice In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A) and (B) below, of the most significant aspects of these statements. (A) Clearing Agency’s Statement on Comments on the Advance Notice Received From Members, Participants or Others Written comments were not and are not intended to be solicited with respect to the proposed changes, and none have been received. (B) Advance Notices Filed Pursuant to Section 806(e) of the Payment, Clearing, and Settlement Supervision Act Description of Proposed Change Background OCC is filing this advance notice to (1) modify the Existing Accord between OCC and NSCC and (2) make certain revisions to OCC By-Laws, OCC Rules, OCC’s Comprehensive Stress Testing & Clearing Fund Methodology, and 5 OCC By-Laws are available at https:// www.theocc.com/getmedia/3309eceb-56cf-48fcb3b3-498669a24572/occ_bylaws.pdf and OCC Rules are available at https://www.theocc.com/getmedia/ 9d3854cd-b782-450f-bcf7-33169b0576ce/occ_ rules.pdf. 6 NSCC also has filed a proposed rule change with the Commission in connection with this proposal. See SR–NSCC–2023–007. E:\FR\FM\30AUN1.SGM 30AUN1

Agencies

SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 88, Number 167 (Wednesday, August 30, 2023)]
[Notices]
[Pages 59976-59988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18673]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98215; File No. SR-OCC-2023-007]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing of Proposed Rule Change Concerning Modifications to 
the Amended and Restated Stock Options and Futures Settlement Agreement 
Between The Options Clearing Corporation and the National Securities 
Clearing Corporation

August 24, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'' or ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice 
is hereby given that on August 10, 2023, the Options Clearing 
Corporation (``OCC'') filed with the Securities and Exchange Commission 
(``Commission'' or ``SEC'') 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

    This proposed rule change would (1) modify the Amended and Restated 
Stock Options and Futures Settlement Agreement dated August 5, 2017 
between OCC and National Securities Clearing Corporation (``NSCC,'' and 
together with OCC, the ``Clearing Agencies'') (``Existing Accord'') \3\ 
and (2) make certain revisions to OCC By-Laws, OCC Rules,\4\ OCC's 
Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity 
Risk Management Description and OCC's Liquidity Risk Management 
Framework in connection with the proposed modifications to the Existing 
Accord, as described in greater detail below.\5\
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    \3\ The Existing Accord was previously approved by the 
Commission. See Securities Exchange Act Release Nos. 81266, 81260 
(July 31, 2017) (File Nos. SR-NSCC-2017-007; SR-OCC-2017-013), 82 FR 
36484 (Aug. 4, 2017).
    \4\ OCC By-Laws are available at https://www.theocc.com/getmedia/3309eceb-56cf-48fc-b3b3-498669a24572/occ_bylaws.pdf and OCC 
Rules are available at https://www.theocc.com/getmedia/9d3854cd-b782-450f-bcf7-33169b0576ce/occ_rules.pdf.
    \5\ NSCC also has filed a proposed rule change with the 
Commission in connection with this proposal. See SR-NSCC-2023-007.
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    The proposed changes would permit OCC to elect to make a cash 
payment to NSCC following the default of a common clearing participant 
that would cause NSCC's central counterparty trade guaranty to attach 
to certain obligations of that participant, as described in greater 
detail below.
    The proposed changes are included in Exhibits 5A and 5B and 
confidential Exhibits 5C, 5D, and 5E to File No. SR-OCC-2023-007. 
Material proposed to be added is underlined and material proposed to be 
deleted is marked in strikethrough text.

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.

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

(1) Purpose
Executive Summary
    NSCC is a clearing agency that provides clearing, settlement, risk 
management, and central counterparty services for trades involving 
equity securities. OCC is the sole clearing agency for standardized 
equity options listed on national securities exchanges registered with 
the Commission, including options that contemplate the

[[Page 59977]]

physical delivery of equities cleared by NSCC in exchange for cash 
(``physically settled'' options).\6\ OCC also clears certain futures 
contracts that, at maturity, require the delivery of equity securities 
cleared by NSCC in exchange for cash. As a result, the exercise/
assignment of certain options or maturation of certain futures cleared 
by OCC effectively results in stock settlement obligations. NSCC and 
OCC maintain a legal agreement, generally referred to by the parties as 
the ``Accord'' agreement, that governs the processing of such 
physically settled options and futures cleared by OCC that result in 
transactions in underlying equity securities to be cleared by NSCC 
(i.e., the Existing Accord). The Existing Accord establishes terms 
under which NSCC accepts for clearing certain securities transactions 
that result from the exercise and assignment of relevant options 
contracts and the maturity of futures contracts that are cleared and 
settled by OCC.\7\ It also establishes the time when OCC's settlement 
guaranty in respect of those transactions ends and NSCC's settlement 
guaranty begins.
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    \6\ The term ``physically-settled'' as used throughout the OCC 
Rulebook refers to cleared contracts that settle into their 
underlying interest (i.e., options or futures contracts that are not 
cash-settled). When a contract settles into its underlying interest, 
shares of stock are sent, i.e., delivered, to contract holders who 
have the right to receive the shares from contract holders who are 
obligated to deliver the shares at the time of exercise/assignment 
in the case of an option and maturity in the case of a future.
    \7\ Under the Existing Accord, such options and futures are 
defined as ``E&A/Delivery Transactions'', which refers to ``Exercise 
& Assignment Delivery Transactions.''
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    The Existing Accord allows for a scenario in which NSCC could 
choose not to guarantee the settlement of such securities arising out 
of transactions. Specifically, NSCC is not obligated to guarantee 
settlement until its member has met its collateral requirements at 
NSCC. If NSCC chooses not to guarantee settlement, OCC would engage in 
an alternate method of settlement outside of NSCC. This scenario 
presents two primary problems. First, the cash required for OCC and its 
Clearing Members in certain market conditions to facilitate settlement 
outside of NSCC could be significantly more than the amount required if 
NSCC were to guarantee the relevant transactions. This is because 
settlement of the transactions in the underlying equity securities 
outside of NSCC would mean that they would no longer receive the 
benefit of netting through the facilities of NSCC. In such a scenario, 
the additional collateral required from Clearing Members to support 
OCC's continuing settlement guarantee would also have to be 
sufficiently liquid to properly manage the risks associated with those 
transactions being due on the second business day following the option 
exercise or the relevant futures contract maturity date. Based on an 
analysis of scenarios using historical data where it was assumed that 
OCC could not settle transactions through the facilities of NSCC, the 
worst-case outcome resulted in extreme liquidity demands of over $300 
billion for OCC to effect settlement via an alternative method, e.g., 
by way of gross broker-to-broker settlement, as discussed in more 
detail below. OCC Clearing Members, by way of their contributions to 
the OCC Clearing Fund, would bear the brunt of this demand. 
Furthermore, there is no guarantee that OCC Clearing Members could fund 
the entire amount of any similar real-life scenarios. By contrast, 
projected GSPs, defined below, identified during the study ranged from 
approximately $419 million to over $6 billion, also as discussed in 
more detail below.
    The second primary problem relates to the significant operational 
complexities if settlement occurs outside of NSCC. More specifically, 
netting through NSCC reduces the volume and value of settlement 
obligations. For example, in 2022 it is estimated that netting through 
NSCC's continuous net settlement (``CNS'') accounting system \8\ 
reduced the value of CNS settlement obligations by approximately 98% or 
$510 trillion from $519 trillion to $9 trillion. If settlement occurred 
outside of NSCC, on a broker-to-broker basis between OCC Clearing 
Members, for example, shares would not be netted and Clearing Members 
would have to coordinate directly with each other to settle the 
relevant transactions. The operational complexities and uncertainty 
associated with alternate means of settlement would impact every market 
participant involved in a settlement of OCC-related transactions.
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    \8\ See Rule 11 (CNS System) and Procedure VII (CNS Accounting 
Operation) of the NSCC Rules. See NSCC's Rules, available at https://www.dtcc.com/-/media/Files/Downloads/legal/rules/nscc_rules.pdf.
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    To address these problems, the Clearing Agencies are proposing to 
amend and restate the Existing Accord and make related changes to their 
respective rules that would allow OCC to elect to make a cash payment 
to NSCC following the default of a Common Member \9\ that would cause 
NSCC to guarantee settlement of that Common Member's transactions and, 
therefore, cause those transactions to be settled through processing by 
NSCC. As part of this proposal, OCC also will enhance its daily 
liquidity stress testing processes and procedures to account for the 
possibility of OCC making such a payment to NSCC in the event of a 
Common Member default. By making these enhancements to its stress 
testing, OCC could include the liquid resources necessary to make the 
payment in its resource planning. The Clearing Agencies believe that by 
NSCC accepting such a payment from OCC, the operational efficiencies 
and reduced costs related to the settlement of transactions through 
NSCC would limit market disruption following a Common Member default 
because settlement through NSCC following such a default would be less 
operationally complex and would be expected to require less liquidity 
and other collateral from market participants than the processes 
available to OCC for closing out positions. Additionally, proposed 
enhancements by OCC to its liquidity stress testing would add 
assurances that OCC could make such a payment in the event of a Common 
Member default. The Clearing Agencies believe that their respective 
clearing members and all other participants in the markets for which 
OCC provides clearance and settlement will benefit from OCC's ability 
to choose to make a cash payment to effect settlement through the 
facilities of NSCC. This change will provide more certainty around 
certain default scenarios and would blunt the financial and operational 
burdens market participants could experience in the case of most 
clearing member defaults.\10\
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    \9\ A firm that is both an OCC Clearing Member and an NSCC 
Member or is an OCC Clearing Member that has designated an NSCC 
Member to act on its behalf is referred to herein as a ``Common 
Member.'' The term ``Clearing Member'' as used herein has the 
meaning provided in OCC's By-Laws. See OCC's By-Laws, supra, note 4. 
The term ``Member'' as used herein has the meaning provided in 
NSCC's Rules. See NSCC's Rules, supra note 8.
    \10\ OCC provided its analysis of the financial impact of 
alternate means of settlement as Exhibit 3A to File No. SR-OCC-2023-
007.
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Background
    OCC acts as a central counterparty clearing agency for U.S.-listed 
options and futures on a number of underlying financial assets 
including common stocks, currencies, and stock indices. In connection 
with these services, OCC provides the OCC Guaranty pursuant to its By-
Laws and Rules. NSCC acts as a central counterparty clearing agency for 
certain equity securities, corporate and municipal debt, exchange 
traded funds and unit investment trusts that are eligible for its 
services. Eligible trading

[[Page 59978]]

activity may be processed through NSCC's CNS system \11\ or through its 
Balance Order Account system,\12\ where all eligible compared and 
recorded transactions for a particular settlement date are netted by 
issue into one net long (buy), net short (sell) or flat position. As a 
result, for each day with activity, each Member has a single deliver or 
receive obligation for each issue in which it has activity. In 
connection with these services, NSCC also provides the NSCC Guaranty 
pursuant to Addendum K of the NSCC Rules.
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    \11\ See Rule 11 (CNS System) and Procedure VII (CNS Accounting 
Operation) of the NSCC Rules, supra note 8.
    \12\ See Rule 8 (Balance Order and Foreign Security Systems) and 
Procedure V (Balance Order Accounting Operation) of the NSCC Rules, 
supra note 8.
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    OCC's Rules provide that delivery of, and payment for, securities 
underlying certain exercised stock options and matured single stock 
futures that are physically settled are generally effected through the 
facilities of NSCC and are not settled through OCC's facilities.\13\ 
OCC and NSCC executed the Existing Accord to facilitate, via NSCC's 
systems, the physical settlement of securities arising out of options 
and futures cleared by OCC. OCC Clearing Members that clear and settle 
physically settled options and futures transactions through OCC also 
are required under OCC's Rules \14\ to be Members of NSCC or to have 
appointed or nominated a Member of NSCC to act on its behalf. As noted 
above, these firms are referred to as ``Common Members'' in the 
Existing Accord.
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    \13\ See Chapter IX of OCC's Rules (Delivery of Underlying 
Securities and Payment), supra note 4.
    \14\ See OCC Rule 901, supra note 4.
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Summary of the Existing Accord
    The Existing Accord governs the transfer between OCC and NSCC of 
responsibility for settlement obligations that involve a delivery and 
receipt of stock in the settlement of physically settled options and 
futures that are cleared and settled by OCC and for which the 
underlying securities are eligible for clearing through the facilities 
of NSCC (``E&A/Delivery Transactions''). It also establishes the time 
when OCC's settlement guarantee (the ``OCC Guaranty'') ends and NSCC's 
settlement guarantee (the ``NSCC Guaranty'') \15\ begins with respect 
to E&A/Delivery Transactions. However, in the case of a Common Member 
default \16\ NSCC can reject these settlement obligations, in which 
case the settlement guaranty will not transfer from OCC to NSCC and OCC 
would not have a right to settle the transactions through the 
facilities of NSCC. Instead, OCC would have to engage in alternative 
methods of settlement that have the potential to create significant 
liquidity and collateral requirements for both OCC and its non-
defaulting Clearing Members.\17\ More specifically, this could involve 
broker-to-broker settlement between OCC Clearing Members.\18\ This 
settlement method is operationally complex because it requires 
bilateral coordination directly between numerous Clearing Members 
rather than relying on NSCC to facilitate multilateral netting to 
settle the relevant settlement obligations. As described above, it also 
potentially could result in significant liquidity and collateral 
requirements for both OCC and its non-defaulting Clearing Members 
because the transactions will not be netted through the facilities of 
NSCC. Alternatively, where NSCC accepts the E&A/Delivery Transactions 
from OCC, the OCC Guaranty ends and the NSCC Guaranty takes effect. The 
transactions are then netted through NSCC's systems, which allows 
settlement obligations for the same settlement date to be netted into a 
single deliver or receive obligation. This netting reduces the costs 
associated with securities transfers by reducing the number of 
securities movements required for settlement and further reduces 
operational and market risk. The benefits of such netting by NSCC may 
be significant with respect to the large volumes of E&A/Delivery 
Transactions processed during monthly options expiry periods.
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    \15\ See Addendum K and Procedure III of the NSCC Rules, supra 
note 8.
    \16\ A Common Member that has been suspended by OCC or for which 
NSCC has ceased to act is referred to as a ``Mutually Suspended 
Member''.
    \17\ For example, OCC evaluated certain Clearing Member default 
scenarios in which OCC assumed that NSCC would not accept the 
settlement obligations under the Existing Accord, including the 
default of a large Clearing Member coinciding with a monthly options 
expiration. OCC has estimated that in such a Clearing Member default 
scenario, the aggregate liquidity burden on OCC in connection with 
obligations having to be settled on a gross broker-to-broker basis 
could reach a significantly high level. For example, in January 
2022, the largest gross broker-to-broker settlement amount in the 
case of a larger Clearing Member default would have resulted in 
liquidity needs of approximately $384,635,833,942. OCC provided the 
data and analysis as Exhibit 3A to File No. SR-OCC-2023-007.
    \18\ In broker-to-broker settlement, Clearing Member parties are 
responsible for coordinating settlement--delivery and payment--among 
themselves on a transaction-by-transaction basis. Once transactions 
settle, the parties also have an obligation to affirmatively notify 
OCC so that OCC can close out the transactions. If either one of or 
both of the parties do not notify OCC, the transaction will remain 
open on OCC's books indefinitely until the time both parties have 
provided notice of settlement to OCC.
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    Pursuant to the Existing Accord, on each trading day NSCC delivers 
to OCC a file that identifies the securities, including stocks, 
exchange-traded funds and exchange-traded notes, that are eligible (1) 
to settle through NSCC and (2) to be delivered in settlement of (i) 
exercises and assignments of stock options cleared and settled by OCC 
or (ii) delivery obligations from maturing stock futures cleared and 
settled by OCC. OCC, in turn, delivers to NSCC a file identifying 
securities to be delivered, or received, for physical settlement in 
connection with OCC transactions.\19\
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    \19\ Each day that both OCC and NSCC are open for accepting 
trades for clearing is referred to as an ``Activity Date'' in the 
Existing Accord. Securities eligible for settlement at NSCC are 
referred to collectively as ``Eligible Securities'' in the Existing 
Accord. Eligible securities are settled at NSCC through NSCC's CNS 
Accounting Operation or NSCC's Balance Order Accounting Operation.
---------------------------------------------------------------------------

    After NSCC receives the list of eligible transactions from OCC and 
NSCC has received all required deposits to the NSCC Clearing Fund from 
all Common Members taking into consideration amounts required to 
physically settle the OCC transactions, the OCC Guaranty would end and 
the NSCC Guaranty would begin with respect to physical settlement of 
the eligible OCC-related transactions.\20\ At this point, NSCC is 
solely responsible for settling the transactions.\21\
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    \20\ The term ``NSCC Clearing Fund'' as used herein has the same 
meaning as the term ``Clearing Fund'' as provided in the NSCC Rules. 
Procedure XV of the NSCC Rules provides that all NSCC Clearing Fund 
requirements and other deposits must be made within one hour of 
demand, unless NSCC determines otherwise, supra note 8.
    \21\ This is referred to in the Existing Accord as the 
``Guaranty Substitution Time,'' and the process of the substitution 
of the NSCC Guaranty for the OCC Guaranty in respect of E&A/Delivery 
Transactions is referred to as ``Guaranty Substitution''.
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    Each day, NSCC is required to promptly notify OCC at the time the 
NSCC Guaranty takes effect. If NSCC rejects OCC's transactions due to 
an improper submission \22\ or if NSCC ``ceases to act'' for a Common 
Member,\23\ NSCC's Guaranty will not

[[Page 59979]]

take effect for the affected transactions pursuant to the NSCC Rules.
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    \22\ Guaranty Substitution by NSCC (discussed further below) 
does not occur with respect to an E&A/Delivery Transaction that is 
not submitted to NSCC in the proper format or that involves a 
security that is not identified as an Eligible Security on the then-
current NSCC Eligibility Master File.
    \23\ Under NSCC's Rules, a default would generally be referred 
to as a ``cease to act'' and could encompass a number of 
circumstances, such as an NSCC Member's failure to make a Required 
Fund Deposit in a timely fashion. See NSCC Rule 46 (Restrictions on 
Access to Services), supra note 8. An NSCC Member for which it has 
ceased to act is referred to in the Existing Accord as a 
``Defaulting NSCC Member''. Transactions associated with a 
Defaulting NSCC Member are referred to as ``Defaulted NSCC Member 
Transactions'' in the Existing Accord.
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    NSCC is required to promptly notify OCC if it ceases to act for a 
Common Member. Upon receiving such a notice, OCC would not continue to 
submit to NSCC any further unsettled transactions that involve such 
Common Member, unless authorized representatives of both OCC and NSCC 
otherwise consent. OCC would, however, deliver to NSCC a list of all 
transactions that have already been submitted to NSCC and that involve 
such Common Member. The NSCC Guaranty ordinarily would not take effect 
with respect to transactions for a Common Member for which NSCC has 
ceased to act, unless both Clearing Agencies agree otherwise. As such, 
NSCC does not have any existing contractual obligation to guarantee 
such Common Member's transactions. To the extent the NSCC Guaranty does 
not take effect, OCC's Guaranty would continue to apply, and, as 
described above, OCC would remain responsible for effecting the 
settlement of such Common Member's transactions pursuant to OCC's By-
Laws and Rules.
    As noted above, the Existing Accord does provide that the Clearing 
Agencies may agree to permit additional transactions for a Common 
Member default (``Defaulted NSCC Member Transactions'') to be processed 
by NSCC while subject to the NSCC Guaranty. This optional feature, 
however, creates uncertainty for the Clearing Agencies and market 
participants about how Defaulted NSCC Member Transactions may be 
processed following a Common Member default, and also does not provide 
NSCC with the ability to collect collateral from OCC that it may need 
to close out these additional transactions. While the optional feature 
would remain in the agreement as part of this proposal, the proposed 
changes to the Existing Accord, as described below, could significantly 
reduce the likelihood that it would be utilized.
Proposed Changes to the Existing Accord
    The proposed changes to the Existing Accord would permit OCC to 
make a cash payment, referred to as the ``Guaranty Substitution 
Payment'' or ``GSP,'' to NSCC. This cash payment could occur on either 
or both of the day that the Common Clearing Member becomes a Mutually 
Suspended Member and on the next business day. Upon NSCC's receipt of 
the Guaranty Substitution Payment from OCC, the NSCC Guaranty would 
take effect for the Common Member's transactions, and they would be 
accepted by NSCC for clearance and settlement.\24\ OCC could use all 
Clearing Member contributions to the OCC Clearing Fund \25\ and certain 
Margin Assets \26\ of a defaulted Clearing Member to pay the GSP, as 
described in more detail below.
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    \24\ Acceptance of such transactions by NSCC would be subject to 
NSCC's standard validation criteria for incoming trades. See NSCC 
Rule 7, supra note 8.
    \25\ The term ``OCC Clearing Fund'' as used herein has the same 
meaning as the term ``Clearing Fund'' in OCC's By-Laws, supra note 
4.
    \26\ The term ``Margin Assets'' as used herein has the same 
meaning as provided in OCC's By-Laws, supra note 4.
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    NSCC would calculate the Guaranty Substitution Payment as the sum 
of the Mutually Suspended Member's unpaid required deposit to the NSCC 
Clearing Fund (``Required Fund Deposit'') \27\ and the unpaid 
Supplemental Liquidity Deposit \28\ obligation that is attributable to 
E&A/Delivery Transactions. The proposed changes to the Existing Accord 
define how NSCC would calculate the Guaranty Substitution Payment.
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    \27\ The Required Fund Deposit is calculated pursuant to Rule 4 
(Clearing Fund) and Procedure XV (Clearing Fund Formula and Other 
Matters) of the NSCC Rules, see supra note 8.
    \28\ Under the NSCC Rules, NSCC collects additional cash 
deposits from those Members who would generate the largest 
settlement debits in stressed market conditions, referred to as 
``Supplemental Liquidity Deposits'' or ``SLD''. See Rule 4A of the 
NSCC Rules, supra note 8.
---------------------------------------------------------------------------

    More specifically, NSCC would first determine how much of the 
member's unpaid Clearing Fund requirement would be included in the GSP. 
NSCC would look at the day-over-day change in gross market value of the 
Mutually Suspended Member's positions as well as day-over-day change in 
the member's NSCC Clearing Fund requirements. Based on such changes, 
NSCC would identify how much of the change in the Clearing Fund 
requirement was attributable to E&A/Delivery Transactions coming from 
OCC. If 100 percent of the day-over-day change in the NSCC Clearing 
Fund requirement is attributable to activity coming from OCC, then the 
GSP would include 100 percent of the member's NSCC Clearing Fund 
requirement. If less than 100 percent of the change is attributable to 
activity coming from OCC, then the GSP would include that percent of 
the member's unpaid NSCC Clearing Fund requirement attributable to 
activity coming from OCC. NSCC would then determine the portion of the 
member's unpaid SLD obligation that is attributable to E&A/Delivery 
Transactions. As noted above, the GSP would be the sum of these two 
amounts. A member's NSCC Clearing Fund requirement and SLD obligation 
at NSCC are designed to address the credit and liquidity risks that a 
member poses to NSCC. The GSP calculation is intended to assess how 
much of a member's obligations arise out of activity coming from OCC so 
that the amount paid by OCC is commensurate with the risk to NSCC of 
guarantying such activity.
    To permit OCC to anticipate the potential resources it would need 
to pay the GSP for a Mutually Suspended Member, each business day, NSCC 
would provide OCC with (1) Required Fund Deposit and Supplemental 
Liquidity Deposit obligations, as calculated pursuant to the NSCC 
Rules, and (2) the gross market value of the E&A/Delivery Transactions 
and the gross market value of total Net Unsettled Positions (as such 
term is defined in the NSCC Rules). On options expiry days that fall on 
a Friday, NSCC would also provide OCC with information regarding 
liquidity needs and resources, and any intraday SLD requirements of 
Common Members. Such information would be delivered pursuant to the 
ongoing information sharing obligations under the Existing Accord (as 
proposed to be amended) and the Service Level Agreement (``SLA'') to 
which both NSCC and OCC are a party pursuant to Section 2 of the 
Existing Accord.\29\ The SLA addresses specifics regarding the time, 
form, and manner of various required notifications and actions 
described in the Accord and also includes information applicable under 
the Accord.
---------------------------------------------------------------------------

    \29\ OCC provided the revised SLA to the Commission as Exhibit 
3C to File No. SR-OCC-2023-007.
---------------------------------------------------------------------------

    NSCC and OCC believe the proposed calculation of the Required Fund 
Deposit portion of the GSP is appropriate because it is designed to 
provide a reasonable proxy for the impact of the Mutually Suspended 
Member's E&A/Delivery Transactions on its Required Fund Deposit. While 
impact study data did show that the proposed calculation could result 
in a GSP that overestimates or underestimates the Required Fund Deposit 
attributable to the Mutually Suspended Member's E&A/Delivery 
Transactions,\30\ current technology

[[Page 59980]]

constraints prohibit NSCC from performing a precise calculation of the 
GSP on a daily basis for every Common Member.\31\
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    \30\ The impact study was conducted at the Commission's request 
to cover a three-day period and reviewed the ten Common Members with 
the largest Required Fund Deposits attributable to the Mutually 
Suspended Member's E&A/Delivery Transactions. Over the 30 instances 
in the study, approximately 15 instances resulted in an 
underestimate of the Required Fund Deposit by an average of 
approximately $112,900,926, four instances where the proxy 
calculation was the same as the Required Fund Deposit, and eleven 
instances of an overestimate of the Required Fund Deposit by an 
average of approximately $59,654,583. See Exhibit 3D to File No. SR-
OCC-2023-007 for additional detail related to the referenced study.
    \31\ OCC and NSCC have agreed that performing the necessary 
technology build at this time would delay the implementation of this 
proposal. Therefore, NSCC would consider incorporating those 
technology updates into future revisions to the Accord, for example 
in connection with a move to a shorter settlement cycle in the U.S. 
equities markets.
---------------------------------------------------------------------------

    Implementing the ability for OCC to make the GSP and cause the E&A/
Delivery Transactions to be cleared and settled through NSCC would 
promote the ability of OCC and NSCC to be efficient and effective in 
meeting the requirements of the markets they serve. This is because 
data demonstrates that the expected size of the GSP would be smaller 
than the amount of cash that would otherwise be needed by OCC and its 
Clearing Members to facilitate settlement outside of NSCC. More 
specifically, based on a historical study of alternate means of 
settlement available to OCC from September 2021 through September 2022, 
in the event that NSCC did not accept E&A/Delivery Transactions, the 
worst-case scenario peak liquidity need OCC identified was 
$384,635,833,942 for settlement to occur on a gross broker-to-broker 
basis. OCC estimates that the corresponding GSP in this scenario would 
have been $863,619,056. OCC also analyzed several other large liquidity 
demand amounts that were identified during the study if OCC effected 
settlement on a gross broker-to-broker basis.\32\ These liquidity 
demand amounts and the largest liquidity demand amount OCC observed of 
$384,635,833,942 substantially exceed the amount of liquid resources 
currently available to OCC.\33\ By contrast, projected GSPs identified 
during the study ranged from $419,297,734 to $6,281,228,428. For each 
of these projected GSP amounts, OCC observed that the Margin Assets and 
OCC Clearing Fund contributions that would have been required of 
Clearing Members in these scenarios would have been sufficient to 
satisfy the amount of the projected GSPs.
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    \32\ See Exhibit 3A to File No. SR-OCC-2023-007 for additional 
detail related to the referenced study.
    \33\ As of March 31, 2023, OCC held approximately $10.37 billion 
in qualifying liquid resources. See OCC Quantitative Disclosure, 
January-March 2023, available at https://www.theocc.com/risk-management/pfmi-disclosures.
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    To help address the current technology constraint that prohibits 
NSCC from performing a precise calculation of the GSP on a daily basis 
for every Common Member, proposed Section 6(b)(i) of the Existing 
Accord and related Section 7(d) of the SLA would provide that with 
respect to a Mutually Suspended Member, either NSCC or OCC may require 
that the Required Fund Deposit portion of the GSP be re-calculated by 
calculating the Required Fund Deposit for the Mutually Suspended Member 
both before and after the delivery of the E&A/Delivery Transactions and 
utilize the precise amount that is attributable to that activity in the 
final GSP. If such a recalculation is required, the result would 
replace the Required Fund Deposit component of the GSP that was 
initially calculated. The SLD component of the GSP would be unchanged 
by such recalculation.
    As the above demonstrates, the GSP is intended to address the 
significant collateral and liquidity requirements that could be 
required of OCC Clearing Members in the event of a Common Member 
default.
    Allowing OCC to make a GSP payment also is intended to allow for 
settlement processing to take place through the facilities of NSCC to 
retain operational efficiencies associated with the settlement process. 
Alternative settlement means such as broker-to-broker settlement add 
operational burdens because transactions would need to be settled 
individually on one-off bases. In contrast, NSCC's netting reduces the 
volume and value of settlement obligations that would need to be closed 
out in the market.\34\ Because the clearance and settlement of 
obligations through NSCC's facilities following a Common Member 
default, including netting of E&A/Delivery Transactions with a Common 
Member's positions at NSCC, would avoid these potentially significant 
operational burdens for OCC and its Clearing Members, OCC and NSCC 
believe that the proposed changes would limit market disruption 
relating to a Common Member default. NSCC netting significantly reduces 
the total number of obligations that require the exchange of money for 
settlement. Allowing more activity to be processed through NSCC's 
netting systems would minimize risk associated with the close out of 
those transactions following the default of a Common Member.
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    \34\ CNS reduces the value of obligations that require financial 
settlement by approximately 98%, where, for example $519 trillion in 
trades could be netted down to approximately $9 trillion in net 
settlements.
---------------------------------------------------------------------------

    Amending the Existing Accord to define the terms and conditions 
under which Guaranty Substitution may occur, at OCC's election, with 
respect to Defaulted NSCC Member Transactions after a Common Member 
becomes a Mutually Suspended Member will also provide more certainty to 
both the Clearing Agencies and market participants generally about how 
a Mutually Suspended Member's Defaulted NSCC Member Transactions may be 
processed.
    NSCC and OCC have agreed it is appropriate to limit the 
availability of the proposed provision to the day of the Common Member 
default and the next business day because, based on historical 
simulations of cease to act events involving Common Members, most 
activity of a Mutually Suspended Member is closed out on those 
days.\35\ Furthermore, the benefits of netting through NSCC's systems 
would be reduced for any activity submitted to NSCC after that time.
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    \35\ OCC provided data regarding such events in Exhibit 3B to 
File No. SR-OCC-2023-007. The information contained therein includes 
the assumptions and timelines leading up to the declaration of a 
default for a Common Member and the anticipated timing of OCC's 
payment of the GSP.
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    To implement these proposed changes to the Existing Accord, OCC and 
NSCC propose to make the following changes.
Section 1--Definitions
    First, new definitions would be added, and existing definitions 
would be amended in Section 1, which is the Definitions section.
    The new defined terms would be as follows.
     The term ``Close Out Transaction'' would be defined to 
mean ``the liquidation, termination or acceleration of one or more 
exercised or matured Stock Options \36\ or Stock Futures \37\ 
contracts, securities contracts, commodity contracts, forward 
contracts, repurchase agreements, swap agreements, master netting 
agreements or similar agreements of a Mutually Suspended Member 
pursuant to OCC Rules 901, 1006 and 1101 through 1111 (including but 
not limited to Rules 1104 and 1107) and/or NSCC Rule 18.'' This 
proposed definition would make it clear that the payment of the 
Guaranty Substitution Payment and NSCC's subsequent acceptance of 
Defaulted NSCC Member Transactions for clearance and settlement are 
intended to fall within the ``safe harbors'' provided

[[Page 59981]]

in the Bankruptcy Code,\38\ the Securities Investor Protection Act,\39\ 
and other similar laws.
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    \36\ The term ``Stock Options'' is defined in the Existing 
Accord within the definition of ``Eligible Securities'' and refers 
to options issued by OCC.
    \37\ The term ``Stock Futures'' is defined in the Existing 
Accord within the definition of ``Eligible Securities'' and refers 
to stock futures contracts cleared by OCC.
    \38\ 11 U.S.C. 101 et seq., including Sec. Sec.  362(b)(6), (7), 
(17), (25) and (27) (exceptions to the automatic stay), Sec. Sec.  
546(e)-(g) and (j) (limitations on avoiding powers), and Sec. Sec.  
555-556 and 559-562 (contractual right to liquidate, terminate or 
accelerate certain contracts).
    \39\ 15 U.S.C. 78aaa-lll, including Sec.  78eee(b)(2)(C) 
(exceptions to the stay).
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     The term ``Guaranty Substitution Payment'' would be 
defined to mean ``an amount calculated by NSCC in accordance with the 
calculations set forth in Appendix A [to the Existing Accord (as 
proposed to be amended)], to include two components: (i) a portion of 
the Mutually Suspended Member's Required Fund Deposit deficit to NSCC 
at the time of the cease to act; and (ii) a portion of the Mutually 
Suspended Member's unpaid Supplemental Liquidity Deposit obligation at 
the time of the cease to act.''
     The term ``Mutually Suspended Member'' would mean ``any 
OCC Participating Member \40\ that has been suspended by OCC that is 
also an NSCC Participating Member \41\ for which NSCC has ceased to 
act.''
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    \40\ The term ``OCC Participating Member'' is defined in the 
Existing Accord to mean ``(i) a Common Member; (ii) an OCC Clearing 
Member that is an `Appointing Clearing Member' (as defined in 
Article I of OCC's By-Laws) and has appointed an Appointed Clearing 
Member that is an NSCC Member to effect settlement of E&A/Delivery 
Transactions through NSCC on the Appointing Clearing Member's 
behalf; (iii) an OCC Clearing Member that is an Appointed Clearing 
Member; or (iv) a Canadian Clearing Member.'' No changes are 
proposed to this definition.
    \41\ The term ``NSCC Participating Member'' is defined in the 
Existing Accord to mean ``(i) a Common Member; (ii) an NSCC Member 
that is an `Appointed Clearing Member' (as defined in Article I of 
OCC's By-Laws); or (iii) [or Canadian Depository for Securities, or 
``CDS'']. For the avoidance of doubt, the Clearing Agencies agree 
that CDS is an NSCC Member for purposes of this Agreement.'' No 
changes are proposed to this definition.
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     The term ``Required Fund Deposit'' would have the meaning 
``provided in Rule 4 of NSCC's Rules and Procedures (or any replacement 
or substitute rule), the version of which, with respect to any 
transaction or obligation incurred that is the subject of this 
Agreement, is in effect at the time of such transaction or incurrence 
of obligation.''
     The term ``Supplemental Liquidity Deposit'' would have the 
meaning ``provided in Rule 4A of NSCC's Rules and Procedures (or any 
replacement or substitute rule), the version of which, with respect to 
any transaction or obligation incurred that is the subject of this 
Agreement, is in effect at the time of such transaction or incurrence 
of obligation.''
    The defined terms that would be amended in Section 1 of the 
Existing Accord are as follows.
     The definition for the term ``E&A/Delivery Transaction'' 
generally contemplates a transaction that involves a delivery and 
receipt of stock in the settlement of physically settled options and 
futures that are cleared and settled by OCC and for which the 
underlying securities are eligible for clearing through the facilities 
of NSCC. The definition would be amended to make clear that it would 
apply in respect of a ``Close Out Transaction'' of a ``Mutually 
Suspended Member'' as those terms are proposed to be defined (described 
above).
     The definition for the term ``Eligible Securities'' 
generally contemplates the securities that are eligible to be used for 
physical settlement under the Existing Accord. The term would be 
modified to clarify that this may include, for example, equities, 
exchange-traded funds and exchange-traded notes that are underlying 
securities for options issued by OCC.
Section 6--Default by an NSCC Participating Member or OCC Participating 
Member
    Section 6 of the Existing Accord provides that NSCC is required to 
provide certain notice to OCC in circumstances in which NSCC has ceased 
to act for a Common Member. Currently, Section 6(A)(ii) of the Existing 
Accord also requires NSCC to notify OCC if a Common Member has failed 
to satisfy its Clearing Fund obligations to NSCC, but for which NSCC 
has not yet ceased to act. In practice, this provision would trigger a 
number of obligations (described below) when a Common Member fails to 
satisfy its NSCC Clearing Fund obligations for any reason, including 
those due to an operational delay. Therefore, OCC and NSCC are 
proposing to remove the notification requirement under Section 6(A)(ii) 
from the Existing Accord. Under Section 7(d) of the Existing Accord, 
NSCC and OCC are required to provide each other with general 
surveillance information regarding Common Members, which includes 
information regarding any Common Member that is considered by the other 
party to be in distress. Therefore, if a Common Member has failed to 
satisfy its NSCC Clearing Fund obligations and NSCC believes this 
failure is due to, for example, financial distress and not, for 
example, due to a known operational delay, and NSCC has not yet ceased 
to act for that Common Member, such notification to OCC would still 
occur but would be done pursuant to Section 7(d) of the Existing Accord 
(as proposed to be amended), and not Section 6(A)(ii). Notifications 
under Section 6 of the Existing Accord (as proposed to be amended) 
would be limited to instances when NSCC has actually ceased to act for 
a Common Member pursuant to the NSCC Rules.\42\
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    \42\ See Rule 46 (Restrictions on Access to Services) of the 
NSCC Rules, supra note 8.
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    Following notice by NSCC that it has ceased to act for a Common 
Member, OCC is obligated in turn to deliver to NSCC a list of all E&A/
Delivery Transactions (excluding certain transactions for which 
Guaranty Substitution does not occur) involving the Common Member.\43\ 
This provision would be amended to clarify that it applies in respect 
of such E&A/Delivery Transactions for the Common Member for which the 
NSCC Guaranty has not yet attached--meaning that Guaranty Substitution 
has not yet occurred.
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    \43\ The section of the Existing Accord that addresses 
circumstances in which NSCC ceases to act and/or an NSCC Member 
defaults is currently part of Section 6(a). It would be re-
designated as Section 6(b) for organizational purposes.
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    As described above in the summary of the Existing Accord, where 
NSCC has ceased to act for a Common Member, the Existing Accord refers 
to the Common Member as the Defaulting NSCC Member and also refers to 
the relevant E&A/Delivery Transactions in connection with that 
Defaulting NSCC Member for which a Guaranty Substitution has not yet 
occurred as Defaulted NSCC Member Transactions.
    If the Defaulting NSCC Member is also suspended by OCC, it would be 
covered by the proposed definition that is described above for a 
Mutually Suspended Member. For such a Mutually Suspended Member, the 
proposed changes in Section 6(b) would provide that NSCC, by a time 
agreed upon by the parties, would provide OCC with the amount of the 
Guaranty Substitution Payment as calculated by NSCC and related 
documentation regarding the calculation. The Guaranty Substitution 
Payment would be calculated pursuant to NSCC's Rules as that portion of 
the unmet Required Fund Deposit \44\ and Supplemental Liquidity Deposit 
\45\ obligations of the Mutually Suspended Member attributable to the 
Defaulted NSCC Member Transactions. By a time agreed

[[Page 59982]]

upon by the parties,\46\ OCC would then be required to either notify 
NSCC of its intent to make the full amount of the Guaranty Substitution 
Payment to NSCC or notify NSCC that it will not make the Guaranty 
Substitution Payment. If OCC makes the full amount of the Guaranty 
Substitution Payment, NSCC's guaranty would take effect at the time of 
NSCC's receipt of that payment and the OCC Guaranty would end.
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    \44\ The Required Fund Deposit is calculated pursuant to Rule 4 
(Clearing Fund) and Procedure XV (Clearing Fund Formula and Other 
Matters) of the NSCC Rules, see supra note 8.
    \45\ The Supplemental Liquidity Deposit is calculated pursuant 
to Rule 4A (Supplemental Liquidity Deposits) of the NSCC Rules, see 
supra note 8.
    \46\ The time by which OCC would be required notify NSCC of its 
intent would be defined in the Service Level Agreement. As of the 
time of this filing, the parties intend to set that time as one hour 
after OCC's receipt of the calculated Guaranty Substitution Payment 
from NSCC.
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    The proposed changes would further provide that if OCC does not 
suspend the Common Member (such that the Common Member would therefore 
not meet the proposed definition of a Mutually Suspended Member) or if 
OCC elects to not make the full amount of the Guaranty Substitution 
Payment to NSCC, then all of the Defaulted NSCC Member Transactions 
would be exited from NSCC's CNS Accounting Operation and/or NSCC's 
Balance Order Accounting Operation, as applicable, and Guaranty 
Substitution would not occur in respect thereof. Therefore, NSCC would 
continue to have no obligation to guarantee or settle the Defaulted 
NSCC Member Transactions, and the OCC Guaranty would continue to apply 
to them pursuant to OCC's By-Laws and Rules.\47\
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    \47\ Under the current and proposed terms of the Existing 
Accord, NSCC would be permitted to voluntarily guaranty and settle 
the Defaulted NSCC Member Transactions.
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    Proposed changes to the Existing Accord would also address the 
application of any Guaranty Substitution Payment by NSCC. Specifically, 
new Section 6(d) would provide that any Guaranty Substitution Payment 
made by OCC may be used by NSCC to satisfy any liability or obligation 
of the Mutually Suspended Clearing Member to NSCC on account of 
transactions involving the Mutually Suspended Clearing Member for which 
the NSCC Guaranty applies and to the extent that any amount of assets 
otherwise held by NSCC for the account of the Mutually Suspended Member 
(including any Required Fund Deposit or Supplemental Liquidity Deposit) 
are insufficient to satisfy its obligations related to transactions for 
which the NSCC Guaranty applies. Proposed changes to Section 6(d) would 
further provide for the return to OCC of any unused portion of the GSP. 
With regard to the portion of the Guaranty Substitution Payment that 
corresponds to a member's Supplemental Liquidity Deposit obligation, 
NSCC must return any unused amount to OCC within fourteen (14) days 
following the conclusion of NSCC's settlement, close-out and/or 
liquidation. With regard to the portion of the Guaranty Substitution 
Payment that corresponds to a Required Fund Deposit, NSCC must return 
any unused amount to OCC under terms agreed to by the parties.\48\
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    \48\ Such amounts would be returned to OCC as appropriate and in 
accordance with a Netting Contract and Limited Cross-Guaranty, by 
and among the Depository Trust Company, Fixed Income Clearing 
Corporation, NSCC and OCC, dated as of January 1, 2003, as amended.
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Other Proposed Changes
    Certain other technical changes are also proposed to the Existing 
Accord to conform it to the proposed changes described above. For 
example, the preamble and the ``whereas'' clauses in the Preliminary 
Statement would be amended to clarify that the agreement is an amended 
and restated agreement and to summarize that the agreement would be 
modified to contemplate the Guaranty Substitution Payment structure. 
Section 1(c), which addresses the terms in the Existing Accord that are 
defined by reference to NSCC's Rules and Procedures and OCC's By-Laws 
and Rules would be modified to state that such terms would have the 
meaning then in effect at the time of any transaction or obligation 
that is covered by the agreement rather than stating that such terms 
have the meaning given to them as of the effective date of the 
agreement. This change is proposed to help ensure that the meaning of 
such terms in the agreement will not become inconsistent with the 
meaning in the NSCC Rules and/or OCC By-Laws and Rules, as they may be 
modified through proposed rule changes with the Commission.
    Technical changes would be made to Sections 3(d) and (e) of the 
Existing Accord to provide that those provisions would not apply in the 
event new Section 6(b) described above, is triggered. Section 3(d) 
generally provides that OCC will no longer submit E&A/Delivery 
Transactions to NSCC involving a suspended OCC Participating 
Member.\49\ Similarly, Section 3(e) generally provides that OCC will no 
longer submit E&A/Delivery Transactions to NSCC involving an NSCC 
Participating Member \50\ for which NSCC has ceased to act. A proposed 
change would also be made to Section 5 of the Existing Accord to modify 
a reference to Section 5 of Article VI of OCC's By-Laws to instead 
provide that the updated cross-reference should be to Chapter IV of 
OCC's Rules.
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    \49\ See supra note 40 defining OCC Participating Member.
    \50\ See supra note 41 defining NSCC Participating Member.
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    Section 5 would also be amended to clarify that Guaranty 
Substitution occurs when NSCC has received both the Required Fund 
Deposit and Supplemental Liquidity Deposit, as calculated by NSCC in 
its sole discretion, from Common Members. The addition of the 
collection of the Supplemental Liquidity Deposit to the definition of 
the Guaranty Substitution Time in this Section 5 would reflect OCC and 
NSCC's agreement that both amounts are components of the Guaranty 
Substitution Payment (as described above) and would make this 
definition consistent with that agreement.
    In Section 7 of the Existing Accord, proposed changes would be made 
to provide that NSCC would provide to OCC information regarding a 
Common Member's Required Fund Deposit and Supplemental Liquidity 
Deposit obligations, to include the Supplemental Liquidity Deposit 
obligation in this notice requirement, and additionally that NSCC would 
provide OCC with information regarding the potential Guaranty 
Substitution Payment for the Common Member. On an options expiration 
date that is a Friday, NSCC would, by close of business on that day, 
also provide to OCC information regarding the intra-day liquidity 
requirement, intra-day liquidity resources and intra-day calls for a 
Common Member that is subject to a Supplemental Liquidity Deposit at 
NSCC.
    Finally, Section 14 of the Existing Accord would be modernized to 
provide that notices between the parties would be provided by email 
rather than by hand, overnight delivery service or first-class mail.
Proposed Changes to OCC By-Laws and Rules
General Description
    OCC is also proposing certain changes to its By-Laws and Rules that 
are designed to complement the proposed changes described above 
regarding the Existing Accord. These proposed changes to the By-Laws 
and Rules are described below, and they generally cover the following 
four areas. First, the proposed changes would define Guaranty 
Substitution Payment. Second, the proposed changes would describe the 
circumstances under which OCC could make a Guaranty Substitution 
Payment to NSCC. Third, the proposed changes would specify what 
financial

[[Page 59983]]

resources could be used by OCC to make the Guaranty Substitution 
Payment.\51\ Fourth, the proposed changes to OCC's Comprehensive Stress 
Testing and Clearing Fund Methodology, and Liquidity Risk Management 
Description would outline enhanced stress testing incorporating the GSP 
and OCC's ability to call for additional resources from Clearing 
Members. OCC also is proposing changes to OCC's Liquidity Risk 
Management Framework to account for OCC's ability to make the GSP.
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    \51\ OCC would be permitted to borrow from the Clearing Fund and 
margin of a suspended Clearing Member, over which OCC has a general 
lien, where that Clearing Member is a Mutually Suspended Member. The 
change would merely expand the circumstances under which OCC's 
current By-Laws and Rules permit OCC to borrow Clearing Fund and 
margin. The change would not affect the treatment of such borrowing 
under OCC's default waterfall that determines how OCC allocates 
losses against available financial resources. The Mutually Suspended 
Member's margin and Clearing Fund collateral would remain first in 
line to absorb losses.
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Article I--Definitions
    OCC proposes to add ``Guaranty Substitution Payment'' as a new 
defined term under Article I of OCC's By-Laws, which is the Definitions 
section. The term ``Guaranty Substitution Payment'' would be defined to 
mean: ``a payment that may be made by [OCC] to [NSCC] under the terms 
of an agreement between them, as described in Rule 901, so that [NSCC] 
will not reject settlement obligations for CCC-eligible \52\ securities 
that are directed by [OCC] for settlement through the facilities of 
[NSCC] on account of a Clearing Member that has been suspended, as 
described in Rule 1102, and for which [NSCC] has ceased to act.''
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    \52\ The term ``CCC-Eligible'' as used herein has the meaning 
provided in OCC's By-Laws, supra note 4.
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Chapter IX--Delivery of Underlying Securities and Payment
    Certain changes are also proposed to Chapter IX of OCC's Rules. OCC 
proposes to add parenthetical language to the Introduction section of 
Chapter IX of OCC's Rules. It would specify that a Guaranty 
Substitution Payment could be made by OCC to NSCC in connection with 
OCC's general policy that to the extent a security to be delivered and 
received is CCC-eligible, OCC will direct the delivery and payment 
obligations to be settled through the facilities of NSCC where the 
obligations are physically-settled and arise out of the exercise of 
stock option contracts or the maturity of stock futures contracts.
    Next, OCC proposes to delete certain provisions from Rule 901(b) 
regarding when a Guaranty Substitution occurs. Specifically, Rule 
901(b) currently provides that unless otherwise agreed between OCC and 
NSCC, a Guaranty Substitution with respect to settlement obligations 
for CCC-eligible securities that settle ``regular way'' under NSCC's 
Rules and Procedures will occur if: (i) the applicable settlement 
obligations are reported to and are not rejected by NSCC; (ii) NSCC has 
not notified OCC that it has ceased to act for the relevant Clearing 
Member or Appointed Clearing Member; and (iii) the NSCC Clearing Fund 
requirements of the relevant Clearing Member or Appointed Clearing 
Member owing to NSCC, as determined in accordance with NSCC's Rules and 
Procedures, are received by NSCC. These considerations regarding when a 
Guaranty Substitution occurs are addressed under the terms of the 
Existing Accord, and they would continue to be relevant considerations 
regarding when a Guaranty Substitution occurs under the changes that 
OCC and NSCC are proposing to the Existing Accord. However, because 
additional considerations would be added to the Guaranty Substitution 
process in connection with the proposed ability for OCC in certain 
circumstances to make a Guaranty Substitution Payment to NSCC and also 
to eliminate the potential for a description of the Guaranty 
Substitution process in OCC's Rules to become inconsistent with the 
process that OCC and NSCC have agreed to in the Existing Accord, as it 
would be amended, OCC is proposing to delete the discussion of these 
considerations in Rule 901(b) in favor of instead simply cross 
referencing the terms of the agreement.\53\
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    \53\ For purposes of the proposed rule change process under 
Exchange Act Section 19(b), the agreement is treated as a rule of a 
clearing agency under Exchange Act Section 3(a)(27) and therefore 
any proposed changes to it by OCC are subject to the related rule 
change process and public notice and comment. OCC therefore believes 
that addressing the terms in the agreement and cross-referencing the 
agreement in OCC Rule 901 would not deprive the Commission or the 
public of notice regarding any future proposed changes.
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    In addition, OCC proposes to add a new paragraph to the end of Rule 
901(b) to provide that pursuant to the proposed changes to the Existing 
Accord, OCC would be permitted to make a Guaranty Substitution Payment 
to NSCC. The proposed changes would also describe the circumstances in 
which OCC may make a Guaranty Substitution Payment in connection with 
settlement obligations of a suspended Clearing Member, and that the 
amount of the Guaranty Substitution Payment under the terms of the 
Existing Accord, as amended, would be the amount required by NSCC to 
satisfy its deficit(s) regarding such Clearing Member's ``Required Fund 
Deposit'' and ``Supplemental Liquidity Deposit'' as those terms are 
defined in NSCC's Rules and Procedures.\54\ The changes would provide 
that any amount of a Guaranty Substitution Payment that NSCC does not 
use pursuant to its Rules and Procedures would subsequently be returned 
to OCC under such terms and within such times as are agreed by OCC and 
NSCC. OCC believes that it is useful to include this description of the 
proposed process for the Guaranty Substitution Payment and the 
circumstances in which it may be made so that a user of OCC's publicly 
available By-Laws and Rules would have sufficient information to 
understand the existence of the Guaranty Substitution Payment 
mechanism, the general circumstances in which it may be made and the 
role that a Guaranty Substitution Payment would play in causing NSCC to 
accept obligations for CCC-eligible securities for clearance and 
settlement.
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    \54\ See NSCC Rules 4 (defining ``Required Fund Deposit'') and 
4A (defining ``Supplemental Liquidity Deposit''), supra note 8.
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Chapters X and XI--Clearing Fund Contributions and Suspension of a 
Clearing Member
    As generally described above, the proposed changes would also 
provide that OCC would be permitted to borrow from the OCC Clearing 
Fund, and also against certain Margin Assets, of a Clearing Member that 
has been suspended by OCC where that Clearing Member is a Mutually 
Suspended Member. To implement these changes, OCC is proposing the 
following amendments to OCC Rule 1006 and Rule 1104.
    OCC Rule 1006 addresses the purpose and permitted uses of the OCC 
Clearing Fund. OCC proposes to make amendments to paragraphs (a) and 
(f) to permit OCC to utilize assets in the Clearing Fund as a liquidity 
resource in connection with making a Guaranty Substitution Payment. 
Currently, OCC Rule 1006(a) states the conditions for use of the OCC 
Clearing Fund. These provide that the OCC Clearing Fund may be used for 
borrowings pursuant to OCC Rule 1006(f) or to make good losses or 
expenses suffered by OCC including: (i) as a result of the failure of 
any Clearing Member to discharge duly any obligation on or arising from 
any confirmed trade accepted by OCC, (ii) as a result of the failure of 
any Clearing Member (including any Appointed Clearing Member) or of CDS 
(Canada's national securities depository) to perform its obligations 
under any

[[Page 59984]]

contract or obligation issued, undertaken, or guaranteed by OCC or in 
respect of which OCC is otherwise liable, (iii) as a result of the 
failure of any Clearing Member to perform any of its obligations to OCC 
in respect of the stock loan and borrow positions of such Clearing 
Member, (iv) in connection with any liquidation of a Clearing Member's 
open positions, (v) in connection with protective transactions effected 
for the account of OCC pursuant to Chapter XI of OCC's Rules (delivery 
of underlying securities and payment), (vi) as a result of the failure 
of any Clearing Member to make any other required payment or render any 
other required performance or (vii) as a result of the failure of any 
bank, securities or commodities clearing organization, or investment 
counterparty, to perform its obligations to OCC for certain specified 
reasons. \55\
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    \55\ The terms ``Clearing Member'' and ``Appointed Clearing 
Member'' as used herein have the meanings provided in OCC's By-Laws, 
supra note 4.
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    OCC proposes to renumber clauses (iii) through (vii) in paragraph 
(a) as (iv) through (viii), and to insert as new clause (iii) a 
provision that the OCC Clearing Fund may be used ``regarding any 
Guaranty Substitution Payment that [OCC] may make to [NSCC] under an 
agreement between them, as described in [OCC] Rule 901, so that [NSCC] 
will not reject settlement obligations for CCC-eligible securities 
involving a Clearing Member for which [NSCC] has ceased to act and that 
[OCC] directs to [NSCC] for settlement through its facilities.'' \56\ 
OCC also proposes to add parenthetical language to paragraphs (f)(1)(A) 
and f(2)(A)(ii) to further clarify that contributions to the OCC 
Clearing Fund may be borrowed by OCC for use in connection with making 
a Guaranty Substitution Payment to NSCC. Any borrowing from the OCC 
Clearing Fund by OCC to make a Guaranty Substitution Payment to NSCC 
would be subject to the existing terms of OCC Rule 1006(f)(3) that 
provide that irrespective of how any such borrowings from the OCC 
Clearing Fund are applied by OCC, the borrowing for a period not to 
exceed thirty (30) days will not be deemed to result in charges against 
the OCC Clearing Fund under OCC's default waterfall for allocating 
actual losses. For purposes of determining whether a loss resulting 
from a Guaranty Substitution Payment has occurred, OCC Rule 1006(f)(3) 
would be amended to provide that the Guaranty Substitution Payment is 
deemed to be repaid by OCC at such time as under the Accord that it is 
NSCC's obligation to return any portion of the Guaranty Substitution 
Payment that NSCC does not use pursuant to its rules. If, subsequent to 
the borrowing, OCC determines that the borrowing represents an actual 
loss or all or any part of the borrowing remains outstanding after 
thirty (30) days (or on the first Business Day thereafter if the 
thirtieth calendar day is not a Business Day) then the amount of OCC 
Clearing Fund assets used in the outstanding borrowing would be an 
actual loss that OCC would be required to immediately allocate under 
its By-Laws and Rules.\57\ As noted above, losses resulting from the 
borrowing of Clearing Fund or Margin Assets as a liquidity resource to 
facilitate OCC making a Guaranty Substitution Payment would be 
allocated in the same sequence as any other losses charged to the 
default waterfall.
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    \56\ In connection with these amendments, the reference in Rule 
1006(b) to ``clauses (i) through (vi) of paragraph (a)'' would be 
changed to ``clauses (i) through (vii) of paragraph (a)''.
    \57\ If the defaulting OCC Clearing Member's Margin Assets and 
OCC Clearing Fund contribution were insufficient to cover the 
associated losses, OCC would next look to certain OCC financial 
resources that are available for that purpose (e.g., OCC's corporate 
contribution and Clearing Fund contributions of non-defaulting OCC 
Clearing Members).
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    Consistent with these changes to permit OCC to use the OCC Clearing 
Fund as a borrowing resource to make a Guaranty Substitution Payment to 
NSCC, OCC is also proposing similar changes to OCC Rule 1104 that would 
permit OCC to borrow certain Margin Assets of a Clearing Member that 
has been suspended by OCC where that Clearing Member is a Mutually 
Suspended Member and OCC has a general lien \58\ over the Margin 
Assets.
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    \58\ Article I, Section 1.G.(1) of OCC's By-Laws states that the 
``term `general lien' means a security interest of [OCC] in all or 
specified assets in a Clearing Member account as security for all of 
the Clearing Member's obligations to [OCC] regardless of the source 
or nature of such obligations.'' See OCC By-Laws, supra note 4.
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    Specifically, OCC proposes to add a new paragraph (g) to OCC Rule 
1104 that would provide that OCC may use specified Margin Assets of a 
suspended Clearing Member as a borrowing in order to use such borrowed 
Margin Assets to make a Guaranty Substitution Payment to NSCC. OCC 
would be permitted to use Margin Assets from the following accounts of 
a suspended Common Member: firm lien account and firm non-lien account; 
separate Market-Maker's account; combined Market-Maker's account; and 
JBO Participants' account.\59\ OCC is not proposing at this time to 
have authority to borrow Margin Assets from other types of accounts 
over which OCC has a restricted lien \60\ and for which the Margin 
Assets are security for the particular restricted lien accounts because 
of additional complexity that OCC believes would be associated with 
tracking NSCC's use of Margin Assets associated with those accounts and 
also due to certain regulatory requirements under Commission Rule 15c3-
3 that apply to broker-dealer Clearing Members and prohibit the use of 
customer property of the broker-dealer to support non-customer 
activities.\61\
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    \59\ The Clearing Member accounts referenced herein are 
described in subparagraphs (a), (b), (c) and (h) of Article VI, 
Section 3 of OCC's By-Laws. See OCC's By-Laws, supra note 4.
    \60\ Article I, Section 1.R.(8) of OCC's By-Laws states that the 
``term `restricted lien' means a security interest of [OCC] in 
specified assets (including any proceeds thereof) in an account of a 
Clearing Member with [OCC] as security for the Clearing Member's 
obligations to [OCC] arising from such account or, to the extent so 
provided in the By-Laws or Rules, a specified group of accounts that 
includes such account including, without limitation, obligations in 
respect of all confirmed trades effected through such account or 
group of accounts, and exercise notices assigned to such account or 
group of accounts.'' See OCC's By-Laws, supra note 4.
    \61\ For example, under the broker-dealer customer reserve 
account formula to SEC Rule 15c3-3 the broker-dealer takes a debit 
in the formula under Item 13 for margin that is ``required and on 
deposit with OCC for all option contracts written or purchased in 
customer accounts.'' This means that such margin in turn can be used 
by the broker-dealer Clearing Member as Margin Assets to support the 
securities customers' account at OCC.
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    As with the terms that currently apply to any borrowing from the 
OCC Clearing Fund pursuant to OCC Rule 1006(f), new paragraph (g) in 
OCC Rule 1104 would further provide that Margin Assets borrowed by OCC 
to make a Guaranty Substitution Payment to NSCC would not be deemed to 
be charges against the margin assets for the relevant account(s) for up 
to thirty (30) days; however, if all or a part of such borrowing were 
to be determined by OCC, in its discretion, to represent an actual 
loss, or if all or a part of the borrowing were to remain outstanding 
after such thirty (30)-day period, OCC would consider the amount of 
margin assets used to support OCC's obligations under the outstanding 
borrowing or transaction as an actual loss and immediately allocate the 
loss in accordance with OCC's By-Laws and Rules.
    OCC anticipates that in a scenario in which it would be permitted 
make a Guaranty Substitution Payment to NSCC under the proposed changes 
to the Existing Accord and OCC's By-Laws and Rules, OCC would generally 
expect to borrow from the Clearing Fund as a primary liquidity 
resource. OCC could also borrow Margin Assets of the suspended Clearing 
Member that is a

[[Page 59985]]

Common Member under the proposed terms described above. OCC is not 
proposing changes that would require a specific borrowing sequence 
because OCC believes that it is more appropriate to preserve 
flexibility to borrow from the available OCC Clearing Fund or Margin 
Assets as OCC determines appropriate under the circumstances.
    In addition, OCC proposes to specify in OCC Rule 1107(a)(1) that 
exercised option contracts and matured, physically-settled stock 
futures to which the suspended Clearing Member is a party may be 
settled in accordance with the terms of any agreement between OCC and 
NSCC governing the settlement of exercised option contracts and 
matured, physically-settled stock futures of a suspended Clearing 
Member. In such an event, settlement will be governed by and subject to 
the agreement between OCC and NSCC and the rules of NSCC.
    The purpose of the proposed changes to create the Guaranty 
Substitution Payment mechanism is to provide OCC and NSCC with an 
additional default management tool to help manage liquidity and 
settlement risks that OCC believes would be presented to each covered 
clearing agency in connection with a Mutually Suspended Member. OCC 
believes that having the ability to make a Guaranty Substitution 
Payment to NSCC in regard to any unmet Required Fund Deposit or 
Supplemental Liquidity Deposit obligations of a Mutually Suspended 
Member would promote prompt and accurate clearance and settlement in 
the national system for the settlement of securities transactions by 
causing NSCC to guarantee certain securities settlement obligations 
that result from exercised options and matured futures contracts that 
are cleared and settled by OCC. In the following ways, OCC believes 
that this would be beneficial to and protective of OCC, NSCC, their 
participants, and the markets they serve.
    First, OCC's ability to make the Guaranty Substitution Payment 
would ensure that the relevant securities settlement obligations would 
be accepted by NSCC for clearance and settlement and therefore the size 
of the related settlement obligations could be decreased from netting 
through NSCC's CNS Accounting Operation and/or NSCC's Balance Order 
Accounting Operation. Second, this outcome would avoid a scenario in 
which OCC's Guaranty would continue to apply and the settlement 
obligations would be settled on a broker-to-broker basis between OCC 
Clearing Members pursuant to the applicable provisions in Chapter IX of 
OCC's Rules. As noted above, OCC believes that such a broker-to-broker 
settlement scenario could result in substantial collateral and 
liquidity requirements for OCC Clearing Members. OCC believes that 
these potential collateral and liquidity consequences would be due to 
the lost benefit of netting of the settlement obligations through 
NSCC's facilities and also due to the short time (i.e., the T+2 
standard settlement cycle) between a rejection by NSCC of the 
settlement obligations for clearing and the associated settlement date 
on which settlement would be otherwise required to be made bilaterally 
by OCC Clearing Members. This scenario also raises the potential for 
procyclical liquidity demands on OCC Clearing Members and participants 
during stressed market conditions. Third, OCC will plan to size its 
liquidity resource requirements to reasonable expectations with a high 
probability of making a Guaranty Substitution Payment in order to 
facilitate the settlement of a Mutually Suspended Member's obligations 
through NSCC. Accounting for net liquidity demands from a Mutually 
Suspended Member's settlement obligations at the central counterparty-
level enhances liquidity in the financial system and promotes the 
efficient use of capital by reducing the demand for liquidity 
associated with gross settlement of obligations and enabling the 
application of resources at both clearing agencies to satisfy the 
Member's obligation. Fourth, OCC believes that the potential for the 
size of the settlement obligations to be comparatively larger than the 
Guaranty Substitution Payment coupled with the short time remaining to 
settlement could also increase the risk of default by the affected OCC 
Clearing Members at a time when a Common Member has already been 
suspended. Therefore, OCC believes that the proposed changes to 
implement the ability for OCC to make a Guaranty Substitution Payment 
to NSCC would allow OCC to avoid these risks by causing NSCC to accept 
the relevant obligations arising from exercised options and matured 
futures cleared and settled by OCC, as it ordinarily would, and 
guarantee their settlement, upon OCC making a Guaranty Substitution 
Payment to NSCC in accordance with the revised Accord.
Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity 
Risk Management Description
    OCC proposes to revise the OCC Comprehensive Stress Testing & 
Clearing Fund Methodology, and Liquidity Risk Management Description to 
include the GSP in its liquidity risk management practices. Overall, 
the proposed changes would reflect that the GSP functions as an 
additional liquidity demand type at the Clearing Member Organization 
(``CMO'') Group level.\62\
---------------------------------------------------------------------------

    \62\ A Clearing Member Group is composed of a set of affiliated 
OCC Clearing Members.
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    OCC would include additional specifics to address the potential 
increased demand that the inclusion of the GSP may cause in its 
liquidity risk management practices in the Liquidity Risk Management 
section of the Comprehensive Stress Testing & Clearing Fund 
Methodology, and Liquidity Risk Management Description. Specifically, 
OCC proposes to amend the Liquidity Demand for Positions Rejected by 
NSCC subsection, which describes the Existing Accord, including the 
scenario in which NSCC could choose not to guaranty certain securities 
settlement obligations arising out of transactions cleared by OCC. This 
subsection would be retitled as the Liquidity Demand Associated with 
NSCC Performance of Physical Settlement Activities subsection to more 
clearly describe its content and incorporate the GSP, as further 
detailed below. Consistent with the changes to the Existing Accord 
described above, OCC proposes to clarify that the Accord allows NSCC to 
reject such obligations if OCC elects to not make a GSP.
    OCC proposes a new subsection, titled the Liquidity Demand GSP, to 
describe the GSP, which NSCC would calculate as defined in the proposed 
amendments to the Existing Accord. OCC would describe a GSP as a firm 
specific liquidity demand (i.e., the amount of cash OCC needs to pay 
NSCC on behalf of the defaulting Common Member). OCC would describe the 
components of the GSP under the Accord. OCC would explain how it 
accounts for the liquidity demand associated with a potential GSP. 
Specifically, OCC would apply an amount to account for a potential GSP 
obligation for every day on which option expirations occur. This amount 
would be based on peak GSP amounts from the prior 12 months in a given 
expiration category for the specific CMO Group for each forecasted 
liquidity demand calculation. OCC will use a one-year lookback time 
period to determine the appropriate GSP amount to apply. The one-year 
lookback allows for the best like-to-like application of a historical 
GSP as there is a cyclical nature to option standard expirations with 
quarterly (i.e., March, June, September, and December) and January 
generally being more impactful than non-quarterly expirations. The one-
year lookback also allows behavior changes

[[Page 59986]]

of a Clearing Member to be recognized within an annual cycle. OCC 
proposes to utilize a historical GSP based on current system 
capabilities and data that will be supplied by NSCC.
    OCC would use the total amount of Clearing Fund and SLD deficits at 
NSCC in its calculation to account for its obligation. However, in the 
event of a default, OCC would be responsible for a proportionate share 
of both NSCC Clearing Fund deficits (which are analogous to OCC margin 
deficits) and SLDs that are attributable to OCC E&A activity 
transmitted to NSCC for settlement, whereas NSCC will be responsible 
for the portion of the Clearing Fund and SLD deficits associated with 
activity that NSCC clears that is not transmitted by OCC.
    The amount of notional activity sent by OCC to NSCC informs the 
likelihood of a GSP. Namely, the potential amount of NSCC Clearing Fund 
and SLD deficits that are allocable to OCC increases as the amount of 
activity OCC sends to NSCC increases. Since not all types of 
expirations are the same with respect to the notional amount of 
activity sent by OCC to NSCC, OCC proposes to use five separate 
categories of expirations with potentially different GSP amounts to 
apply. Each day on which expirations occur would fall into one of five 
categories as follows:
     Standard Monthly Expiration: typically the third Friday of 
each month from the previous twelve months;
     Non-Standard Monthly Expiration Fridays (``End of Week 
Expirations''): the last business day of every week, typically a 
Friday, excluding the third Friday of each month from the previous 
twelve months;
     End of Month Expirations: the last trading day of every 
month from the previous twelve months;
     Expirations falling on Bank Holidays where Markets Are 
Open (``Bank Holiday Expirations''): days where banks are closed but 
the markets are open from the previous twelve months; \63\
---------------------------------------------------------------------------

    \63\ The Bank Holiday category recognizes that for Veterans Day 
and Columbus Day, the equity and equity derivative markets are open 
for trading, but the banking system is closed for the day. Since the 
banking system is closed while the aforementioned markets are open, 
settlement at NSCC encompasses two days of equity trading and equity 
derivative E&A activity. As OCC is using NSCC deficit numbers 
without regard for allocation, there is a possibility of a 
significant outlying GSP requirement due to the settlement of two 
days of activity simultaneously. Prudence dictates retaining the 
capability to risk manage a day with such disparate characteristics 
differently. Additional supporting data in support of the creation 
of the Bank Holiday Expiration category is included as Exhibit 3E to 
File No. SR-OCC-2023-007.
---------------------------------------------------------------------------

     Remaining Expiration Days (``Daily Expirations''): All 
other days with an expiration from the previous twelve months that do 
not fall into any of the categories above (typically most Mondays 
through Thursdays) from the previous twelve months.
    OCC believes these five categories are appropriate after an 
analysis of notional activity sent to NSCC by OCC.\64\ More 
specifically, the standard Friday monthly expiration far exceeds the 
needs associated with any other category.\65\ The remaining categories 
are intended to capture like time periods that will appropriately 
account for the GSP.
---------------------------------------------------------------------------

    \64\ OCC provided its analysis of notional activity sent to NSCC 
by OCC in support of the creation of the five categories as Exhibit 
3E to File No. SR-OCC-2023-007. This Exhibit 3E sets forth data 
related to OCC's liquidity stress testing, including Available 
Liquidity Resources, Minimum Cash Requirement thresholds, and/or 
liquidity breaches, for Sufficiency and Adequacy scenarios with and 
without the inclusion of the GSP.
    \65\ For example, the average notional transfer for Remaining 
Expiration Days is approximately 10% the size of Standard 
Expiration.
---------------------------------------------------------------------------

    OCC would apply the peak GSP amounts from the prior twelve months 
in a given expiration category for the specific CMO Group for each 
forecasted liquidity demand calculation by adding the GSP amounts to 
the CMO Group's other forecasted liquidity demands for the relevant 
expiration day.\66\ If a Clearing Member defaults, OCC may have to pay 
a GSP to NSCC on two successive days to facilitate the close-out of the 
defaulted Clearing Member's positions. To account for this possibility 
in its liquidity risk management process, OCC contemplates the payment 
of a GSP on expirations that result in settlements on the first and 
second days of the default management process. As described above, this 
GSP amount may serve to only increase liquidity demands.\67\
---------------------------------------------------------------------------

    \66\ As an example, if the applicable GSP is $100 and the 
(current) stressed liquidity demand is $150 for a Clearing Member 
Group, the result after the application of the GSP for that Clearing 
Member Group would be a combined liquidity requirement of $250 
versus $150 currently.
    \67\ OCC provided its analysis of the impact of the GSP, 
including with respect to calls for collateral and liquidity demands 
as Exhibit 3E to File No. SR-OCC-2023-007.
---------------------------------------------------------------------------

    Furthermore, as stated in the new Liquidity Demand GSP subsection, 
OCC would apply a floor to certain expirations. At a minimum, the GSPs 
applied to the End of Week, End of Month, and Bank Holiday Expirations 
will be no lower than the peak of the Daily Expirations category. If a 
GSP pertaining to the End of Week, End of Month, and Bank Holiday 
Expiration category is higher than the peak of the Daily Expirations 
category, then OCC will apply that higher GSP. Standard Monthly 
Expirations will be floored by End of Week, End of Month, and Daily 
Expirations. If a GSP pertaining to any of these categories is higher 
than the Standard Monthly Expiration category, then OCC will apply that 
higher GSP. OCC would set out formulas representing the floors for the 
Standard Monthly, End of Week, End of Month, and Bank Holiday 
Expirations. Finally, OCC also proposes a minor change to clarify that 
it would attempt to effect alternative settlement if OCC elected not to 
make a GSP.\68\
---------------------------------------------------------------------------

    \68\ This clarification would maintain OCC's current process for 
settling transactions not processed through NSCC, and does not 
represent the adoption of a new process or settlement method.
---------------------------------------------------------------------------

Liquidity Risk Management Framework
    OCC proposes changes to the Liquidity Risk Management Framework to 
incorporate the GSP. In the Liquidity Risk Identification section, OCC 
would specify that, in the situation where a member defaults 
immediately preceding, or during the expiration, of physically-settled 
E&A activity, OCC may elect to make a GSP to NSCC to compel NSCC to 
accept and process the E&A activity. If OCC elects to not make a GSP, 
OCC would complete settlement of the defaulted Clearing Member's E&A 
transactions through its current process. Relatedly, OCC would include 
a minor clarification to a footnote in this section to note that NSCC 
is not acting on behalf of a defaulting Clearing Member ``in this 
situation.''
(2) Statutory Basis
    OCC believes the proposed changes are consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to a registered clearing agency. In particular, OCC believes 
the proposed changes are consistent with Section 17A(b)(3)(F) of the 
Act.\69\ Section 17A(b)(3)(F) \70\ of the Act 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, in general, to protect investors and the public interest. As 
described above, OCC believes that modifying its stress testing 
procedures to enhance its ability to call for additional liquidity 
resources and having the ability to make a Guaranty Substitution 
Payment to NSCC with respect to any unmet obligations of a Mutually 
Suspended Member would promote prompt and accurate clearance and 
settlement because it would ensure

[[Page 59987]]

that NSCC accepts the relevant securities settlement obligations for 
clearance and settlement and therefore the size of the related 
settlement obligations for both the Mutually Suspended Member and its 
assigned delivery counterparties could be decreased from netting 
through NSCC's CNS Accounting Operation and/or NSCC's Balance Order 
Accounting Operation. This would also avoid a scenario in which OCC's 
Guaranty would continue to apply and the settlement obligations would 
be settled on a broker-to-broker basis between OCC Clearing Members, 
which OCC believes could result in substantial collateral and liquidity 
requirements for OCC Clearing Members and that, in turn, could also 
increase a risk of default by the affected OCC Clearing Members at a 
time when a Common Member has already been suspended. For these 
reasons, OCC believes that the proposed changes would be beneficial to 
and protective of OCC, NSCC, their participants, and the markets that 
they serve and that the proposed changes are therefore designed, in 
general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \69\ 15 U.S.C. 78q-1(b)(3)(F).
    \70\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    OCC believes that the proposed changes are also consistent with the 
SEC rules that apply to OCC as a covered clearing agency.\71\ In 
particular, SEC Rule 17Ad-22(e)(20) requires OCC to establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to identify, monitor and manage risks related to 
any link that OCC establishes with one or more other clearing agencies, 
financial market utilities, or trading markets.\72\ As described in 
OCC's publicly available disclosure framework for financial market 
infrastructures,\73\ the Existing Accord between OCC and NSCC is one 
such link. As described above, OCC believes (i) the proposed 
modifications to OCC's stress testing procedures that are designed to 
enhance its ability to call for additional liquidity resources, and 
(ii) that implementation of the ability for OCC to make a Guaranty 
Substitution Payment to NSCC in the relevant circumstances involving a 
Mutually Suspended Member would help manage the risks presented to OCC 
and its Clearing Members by the settlement link with NSCC because the 
Guaranty Substitution Payment would ensure that the relevant securities 
settlement obligations would be accepted by NSCC for clearance and 
settlement and therefore the size of the related settlement obligations 
could be decreased from netting through NSCC's CNS Accounting Operation 
and/or NSCC's Balance Order Accounting Operation.
---------------------------------------------------------------------------

    \71\ 17 CFR 240.17Ad-22(a)(5).
    \72\ 17 CFR 240.17Ad-22(e)(20).
    \73\ See The Options Clearing Corporation Disclosure Framework 
for Financial Market Infrastructures, pg. 108, (2022), available at 
https://www.theocc.com/risk-management/pfmi-disclosures.
---------------------------------------------------------------------------

    For this same reason, OCC also believes that the proposed changes 
are consistent with the requirements of SEC Rules 17Ad-22(e)(3) and 
(7).\74\ SEC Rule 17Ad-22(e)(3) requires OCC to establish, implement, 
maintain and enforce written policies and procedures reasonably 
designed to maintain a sound risk management framework for 
comprehensively managing, among other things, liquidity, credit and 
other risks that arise in or are borne by OCC.\75\ SEC Rule 17Ad-
22(e)(7) requires OCC, in relevant part, to establish, implement, 
maintain and enforce written policies and procedures reasonably 
designed to effectively measure, monitor and manage the liquidity risk 
that arises in or is borne by OCC and to, among other things, address 
foreseeable liquidity shortfalls that would not be covered by OCC's 
liquid resources.\76\ As noted, OCC believes the proposed stress 
testing enhancements and the ability to make a Guaranty Substitution 
Payment to NSCC would allow OCC to better manage liquidity and credit 
risks related to the settlement link with NSCC by ensuring that the 
relevant securities settlement obligations would be accepted by NSCC 
for clearance and settlement. It would avoid a scenario in which OCC's 
Guaranty would continue to apply and the settlement obligations would 
be settled on a broker-to-broker basis between OCC Clearing Members, 
which OCC believes could result in substantial collateral and liquidity 
requirements for OCC Clearing Members that, in turn, could also 
increase a risk of default by the affected OCC Clearing Members, 
particularly in circumstances where the prior suspension of a Mutually 
Suspended Member relates to broader stress in the financial system. 
Moreover, the incorporation of the Guarantee Substitution Payment into 
OCC's liquidity risk management practices would enhance OCC's ability 
to maintain additional liquidity resources to effect the settlement of 
exercise and assignment activity in the event of a Common Member 
default, and therefore, potentially increasing the promotion of market 
stability.
---------------------------------------------------------------------------

    \74\ 17 CFR 240.17Ad-22(e)(3), (7).
    \75\ 17 CFR 240.17Ad-22(e)(3).
    \76\ 17 CFR 240.17Ad-22(e)(7).
---------------------------------------------------------------------------

(B) Clearing Agency's Statement on Burden on Competition

    Section 17A(b)(3)(I) of the Act \77\ requires that the rules of a 
clearing agency not impose any burden on competition not necessary or 
appropriate in furtherance of the purposes of the Act. OCC does not 
believe that the proposal would impose any burden on competition. The 
proposed changes would implement changes that would permit OCC in 
certain circumstances to make a Guaranty Substitution Payment to NSCC 
so that the NSCC Guaranty would take effect for the Defaulted NSCC 
Member Transactions and the OCC Guaranty would end. The proposed 
changes would not inhibit access to OCC's services in any way, applies 
to all Clearing Members and does not disadvantage or favor any 
particular user in relationship to another user. Accordingly, OCC does 
not believe that the proposed rule change would have any impact or 
impose a burden on competition.
---------------------------------------------------------------------------

    \77\ 15 U.S.C. 78q-1(b)(3)(I).
---------------------------------------------------------------------------

(C) Clearing Agency's Statement on Comments on the Proposed Rule Change 
Received From Members, Participants or Others

    Written comments were not and are not intended to be solicited with 
respect to the proposed rule change, and none have been received.

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 such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.
    The proposal shall not take effect until all regulatory actions 
required with respect to the proposal are completed.
    The proposal shall not take effect until all regulatory actions 
required with respect to the proposal are completed.\78\
---------------------------------------------------------------------------

    \78\ Notwithstanding its immediate effectiveness, implementation 
of this rule change will be delayed until this change is deemed 
certified under CFTC Regulation 40.6.

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[[Page 59988]]

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 [email protected]. Please include 
File Number SR-OCC-2023-007 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-2023-007. 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 filing also will be available for inspection 
and copying at the principal office of OCC and on OCC's website at 
https://www.theocc.com/Company-Information/Documents-and-Archives/By-Laws-and-Rules.
    Do not include personal identifiable information in submissions; 
you should submit only information that you wish to make available 
publicly. We may redact in part or withhold entirely from publication 
submitted material that is obscene or subject to copyright protection. 
All submissions should refer to File Number SR-OCC-2023-007 and should 
be submitted on or before September 20, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\79\
---------------------------------------------------------------------------

    \79\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-18673 Filed 8-29-23; 8:45 am]
BILLING CODE 8011-01-P

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