
[Federal Register Volume 82, Number 117 (Tuesday, June 20, 2017)]
[Notices]
[Pages 28141-28147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12892]


-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80942; File No. SR-NSCC-2017-007]


Self-Regulatory Organizations; National Securities Clearing 
Corporation; Notice of Filing of Proposed Rule Change To Adopt a New 
Stock Options and Futures Settlement Agreement With the Options 
Clearing Corporation

June 15, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on June 1, 2017, National Securities Clearing Corporation (``NSCC'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change as described in Items I, II and III below, which 
Items have been prepared by the clearing agency.\3\ The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ On June 1, 2017, NSCC filed this proposed rule change as an 
advance notice (SR-NSCC-2017-803) with the Commission pursuant to 
Section 806(e)(1) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act entitled the Payment, Clearing, and Settlement 
Supervision Act of 2010, 12 U.S.C. 5465(e)(1), and Rule 19b-
4(n)(1)(i) of the Act, 17 CFR 240.19b-4(n)(1)(i). A copy of the 
advance notice is available at http://www.dtcc.com/legal/sec-rule-filings.aspx. The Options Clearing Corporation also has filed 
proposed rule change and advance notice filings with the Commission 
in connection with this proposal. See OCC filings SR-OCC-2017-013 
and SR-OCC-2017-804.
---------------------------------------------------------------------------

I. Clearing Agency's Statement of the Terms of Substance of the 
Proposed Rule Change

    The proposed rule change has been filed by NSCC in connection with 
proposed changes relating to a new Stock Options and Futures Settlement 
Agreement (``New Accord'') between NSCC and The Options Clearing 
Corporation (``OCC,'' collectively NSCC and OCC may be referred to 
herein as the ``clearing agencies''), and proposed amendments to 
Procedures III and XV of the Rules & Procedures of NSCC (``NSCC 
Rules'') to accommodate the proposed provisions of the New Accord, as 
described in greater detail below.\4\
---------------------------------------------------------------------------

    \4\ Terms not defined herein are defined in the NSCC Rules, 
available at http://www.dtcc.com/~/media/Files/Downloads/legal/
rules/nscc_rules.pdf, or in OCC's By-Laws and Rules, available at 
http://optionsclearing.com/about/publications/bylaws.jsp, as the 
context implies.
---------------------------------------------------------------------------

II. Clearing Agency's Statement of the Purpose of, and Statutory Basis 
for, the Proposed Rule Change

    In its filing with the Commission, the clearing agency 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. The clearing agency has prepared summaries, 
set forth in sections A, B, and C below, of the most significant 
aspects of such statements.

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

1. Purpose
Background
    OCC issues and clears U.S.-listed options and futures on a number 
of underlying financial assets including common stocks, currencies and 
stock indices. OCC's Rules, however, provide that delivery of, and 
payment for, securities underlying certain physically settled stock 
options and single stock futures cleared by OCC are effected through 
the facilities of a correspondent clearing corporation (such as NSCC) 
and are not settled through the facilities of OCC. NSCC and OCC are 
parties to a Third Amended and Restated Options Exercise Settlement 
Agreement, dated February 16, 1995, as amended (``Existing 
Accord''),\5\ which governs the delivery and receipt of stock in the 
settlement of put and call options issued by OCC (``Stock Options'') 
that are eligible for settlement through NSCC's Continuous Net 
Settlement (``CNS'') Accounting Operation and are designated to settle 
on the third business day following the date the related exercise or 
assignment was accepted by NSCC (``Options E&A''). All OCC Clearing 
Members that intend to engage in Stock Options transactions are 
required to also be Members of NSCC or to have appointed or nominated 
an NSCC Member to act on its behalf.\6\
---------------------------------------------------------------------------

    \5\ The Existing Accord and the proposed changes thereunder were 
previously approved by the Commission. See Securities Exchange Act 
Release No. 37731 (September 26, 1996), 61 FR 51731 (October 3, 
1996) (SR-OCC-96-04 and SR-NSCC-96-11) (Order Approving Proposed 
Rule Change Related to an Amended and Restated Options Exercise 
Settlement Agreement Between the Options Clearing Corporation and 
the National Securities Clearing Corporation); Securities Exchange 
Act Release No. 43837 (January 12, 2001), 66 FR 6726 (January 22, 
2001) (SR-OCC-00-12) (Order Granting Accelerated Approval of a 
Proposed Rule Change Relating to the Creation of a Program to 
Relieve Strains on Clearing Members' Liquidity in Connection With 
Exercise Settlements); and Securities Exchange Act Release No. 58988 
(November 20, 2008), 73 FR 72098 (November 26, 2008) (SR-OCC-2008-18 
and SR-NSCC-2008-09) (Notice of Filing and Order Granting 
Accelerated Approval of Proposed Rule Changes Relating to Amendment 
No. 2 to the Third Amended and Restated Options Exercise Settlement 
Agreement).
    \6\ 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.''
---------------------------------------------------------------------------

    NSCC proposes to adopt a New Accord with OCC, which would provide 
for the settlement of certain Stock Options and delivery obligations 
arising from certain matured physically-settled stock futures contracts 
cleared by OCC (``Stock Futures''). Specifically, the New Accord would, 
among other things: (1) Expand the category of securities that are 
eligible for settlement and guaranty under the agreement to certain 
securities (including stocks, exchange-traded funds and exchange-traded 
notes) that (i) are required to be delivered in the exercise and 
assignment of Stock Options and are eligible to be settled through 
NSCC's Balance Order Accounting Operation (in addition to its CNS 
Accounting Operation) or (ii) are delivery obligations arising from 
Stock Futures that have reached maturity and are eligible to be settled 
through NSCC's CNS Accounting Operation or Balance Order Accounting 
Operation; (2) modify the time of the transfer of responsibilities from 
OCC to NSCC and, specifically, when OCC's guarantee obligations under 
OCC's By-Laws and Rules with respect to such transactions (``OCC's 
Guaranty'') end and NSCC's obligations under Addendum K of the NSCC 
Rules with respect to such transactions (``NSCC's Guaranty'') begin 
(such transfer being the ``Guaranty Substitution''); and (3) put 
additional arrangements into place concerning the procedures, 
information sharing, and overall governance processes under the 
agreement. Furthermore, NSCC proposes to make certain clarifying and 
conforming changes to the NSCC Rules as necessary to implement the New 
Accord.
    The primary purpose of the proposed changes is to (1) provide 
consistent treatment across all expiries for

[[Page 28142]]

products with ``regular way'' \7\ settlement cycle specifications; (2) 
reduce the operational complexities of the Existing Accord by 
eliminating the cross-guaranty between OCC and NSCC and the bifurcated 
risk management of exercised and assigned transactions between the two 
clearing agencies by delineating a single point in time at which OCC's 
Guaranty ceases and NSCC's Guaranty begins; (3) further solidify the 
roles and responsibilities of OCC and NSCC in the event of a default of 
a Common Member at either or both clearing agencies; and (4) improve 
procedures, information sharing, and overall governance under the 
agreement.
---------------------------------------------------------------------------

    \7\ Under the New Accord, ``regular way settlement'' shall have 
a meaning agreed to by the clearing agencies. Generally, regular way 
settlement is understood to be the financial services industry's 
standard settlement cycle. Currently, regular way settlement of 
Stock Options or Stock Futures transactions are those transactions 
designated to settle on the third business day following the date 
the related exercise, assignment or delivery obligation was accepted 
by NSCC. NSCC has proposed to change the NSCC Rules with respect to 
the meaning of regular way settlement in order to be consistent with 
the anticipated industry-wide move to a shorter standard settlement 
cycle of two business days after trade date. See Securities Exchange 
Act Release No. 79734 (January 4, 2017), 82 FR 3030 (January 10, 
2017) (SR-NSCC-2016-007). See also Securities Exchange Act Release 
No. 78962 (September 28, 2016), 81 FR 69240 (October 5, 2016) (S7-
22-16) (Amendment to Securities Transaction Settlement Cycle).
---------------------------------------------------------------------------

    The New Accord would become effective, and wholly replace the 
Existing Accord, at a date specified in a service level agreement to be 
entered into between NSCC and OCC.\8\
---------------------------------------------------------------------------

    \8\ Such effective date would be a date following approval of 
all required regulatory submissions to be filed by OCC and NSCC with 
the appropriate regulatory authorities, including this proposed rule 
change. See supra note 3.
---------------------------------------------------------------------------

The Existing Accord
Key Terms of the Existing Accord
    Under the Existing Accord, the settlement of Options E&A generally 
proceeds according to the following sequence of events. NSCC maintains 
and delivers to OCC a list (``CNS Eligibility Master File'') that 
enumerates all CNS Securities, which are defined in NSCC Rule 1 and 
generally include securities that have been designated by NSCC as 
eligible for processing through NSCC's CNS Accounting Operation and 
eligible for book entry delivery at NSCC's affiliate, The Depository 
Trust Company (for purposes of this proposed rule change, such 
securities are referred to as ``CNS Eligible Securities'').\9\ OCC, in 
turn, uses this file to make a final determination of which securities 
NSCC would not accept and therefore would need to be settled on a 
broker-to-broker basis. OCC then sends to NSCC a transactions file,\10\ 
listing the specific securities that are to be delivered and received 
in settlement of an Options E&A that have not previously been reported 
to NSCC and for which settlement is to be made through NSCC (``OCC 
Transactions File'').\11\ With respect to each Options E&A, the OCC 
Transactions File includes the CUSIP number of the security to be 
delivered, the identities of the delivering and receiving Common 
Members, the quantity to be delivered, the total value of the quantity 
to be delivered based on the exercise price of the option for which 
such security is the underlying security, and the exercise settlement 
date. After receiving the OCC Transactions File, NSCC then has until 
11:00 a.m. Central Time on the following business day to reject any 
transaction listed in the OCC Transactions File. NSCC can reject a 
transaction if the security to be delivered has not been listed as a 
CNS Eligible Security in the CNS Eligible Master File or if information 
provided in the OCC Transactions File is incomplete. Otherwise, if NSCC 
does not so notify OCC of its rejection of an Options E&A by the time 
required under the Existing Accord, NSCC will become unconditionally 
obligated to effect settlement of the Options E&A.
---------------------------------------------------------------------------

    \9\ Supra note 4.
    \10\ Delivery of the OCC Transactions File with respect to an 
Options E&A typically happens on the date of the option's exercise 
or expiration, though this is not expressly stated in the Existing 
Accord. However, in theory, an Options E&A could, due to an error or 
delay, be reported later than the date of the option's exercise or 
expiration.
    \11\ This process would be substantially the same under the New 
Accord with the exception that the CNS Eligibility Master File and 
OCC Transactions File would be renamed and would be expanded in 
scope to include additional securities that would be eligible for 
guaranty and settlement under the New Accord, as discussed in 
further detail below.
---------------------------------------------------------------------------

    Under the Existing Accord, even after NSCC's trade guarantee has 
come into effect,\12\ OCC is not released from its guarantee with 
respect to the Options E&A until certain deadlines \13\ have passed on 
the first business day following the scheduled settlement date without 
NSCC notifying OCC that the relevant Common Member has failed to meet 
an obligation to NSCC or NSCC has ceased to act for such Common Member 
pursuant to the NSCC Rules.\14\ As a result, there is a period of time 
when NSCC's trade guarantee overlaps with OCC's guarantee and where 
both clearing agencies are holding margin against the same Options E&A 
position.
---------------------------------------------------------------------------

    \12\ Pursuant to Addendum K of the NSCC Rules, NSCC guarantees 
the completion of CNS transactions and balance order transactions 
that have reached the point at which, for bi-lateral submissions by 
Members, such trades have been validated and compared by NSCC, and 
for locked-in submission, such trades have been validated by NSCC, 
as described in the NSCC Rules. Transactions that are covered by the 
Existing Accord, and that would be covered by the New Accord, are 
expressly excluded from the timeframes described in Addendum K. See 
supra note 4.
    \13\ The deadline is 6:00 a.m. Central Time for NSCC notifying 
OCC of a Common Member failure and, if NSCC does not immediately 
cease to act for such defaulting Common Member, 4:00 p.m. Central 
Time for notifying OCC that it has ceased to act.
    \14\ See NSCC Rule 46 (Rule 46 (Restrictions on Access to 
Services). See supra note 4.
---------------------------------------------------------------------------

    In the event that NSCC or OCC ceases to act on behalf of or 
suspends a Common Member, that Common Member becomes a ``defaulting 
member.'' Once a Common Member becomes a defaulting member, the 
Existing Accord provides that NSCC will make a payment to OCC equal to 
the lesser of OCC's loss or the positive mark-to-market amount relating 
to the defaulting member's Options E&A and that OCC will make a payment 
to NSCC equal to the lesser of NSCC's loss or the negative mark-to-
market amount relating to the defaulting member's Options E&A to 
compensate for potential losses incurred in connection with the 
default. A clearing agency must request the transfer of any such 
payments by the close of business on the tenth business day following 
the day of default and, after a request is made, the other clearing 
agency is required to make payment within five business days of the 
request.
The New Accord
Overview
    As noted above, NSCC proposes to adopt a New Accord with OCC, which 
would provide for the settlement of certain Stock Options and Stock 
Futures transactions. The New Accord is primarily designed to, among 
other things, expand the category of securities that are eligible for 
settlement and guaranty under the agreement; simplify the time of the 
transfer of responsibilities from OCC to NSCC (specifically, the 
transfer of guarantee obligations); and put additional arrangements 
into place concerning the procedures, information sharing, and overall 
governance processes under the agreement. The material provisions of 
the New Accord are described in detail below.
Key Elements of the New Accord
Expanded Scope of Eligible Securities
    Pursuant to the proposed New Accord, on each day that both OCC and 
NSCC are open for accepting trades for clearing (``Activity Date''), 
NSCC would deliver to OCC an ``Eligibility Master

[[Page 28143]]

File,'' which would identify the securities, including stocks, 
exchange-traded funds and exchange-traded notes, that are (1) eligible 
to settle through NSCC's CNS Accounting Operation (as is currently the 
case under the Existing Accord) or NSCC's Balance Order Accounting 
Operation (which is a feature of the New Accord) and (2) to be 
delivered in settlement of (i) exercises and assignments of Stock 
Options (as is currently the case under the Existing Accord) or (ii) 
delivery obligations arising from maturing physically settled Stock 
Futures (which is a feature of the New Accord) (all such securities 
collectively being ``Eligible Securities''). OCC, in turn, would 
deliver to NSCC its file of E&A/Delivery Transactions \15\ that list 
the Eligible Securities to be delivered, or received, and for which 
settlement is proposed to be made through NSCC on that Activity Date. 
Guaranty Substitution (discussed further below) would not occur with 
respect to an E&A/Delivery Transaction that is not submitted in the 
proper format or that involves a security that is not identified as an 
Eligible Security on the then-current Eligibility Master File. This 
process is similar to the current process under the Existing Accord 
with the exception of the expanded scope of Eligible Securities (and 
additional fields necessary to accommodate such securities) that would 
be listed on the Eligibility Master File and the E&A/Delivery 
Transactions file.
---------------------------------------------------------------------------

    \15\ ``E&A/Delivery Transactions'' are transactions involving 
the settlement of Stock Options and Stock Futures under the New 
Accord. The delivery of E&A/Delivery Transactions to NSCC would 
replace the delivery of the ``OCC Transactions File'' from the 
Existing Accord. The actual information delivered by OCC to NSCC 
would be the same as is currently provided on the OCC Transactions 
File, but certain additional terms would be included to accommodate 
the inclusion of Stock Futures, along with information regarding the 
date that the instruction to NSCC was originally created and the 
E&A/Delivery Transaction's designated settlement date.
---------------------------------------------------------------------------

    Like the Existing Accord, the proposed New Accord would continue to 
facilitate the processes by which Common Members deliver and receive 
stock in the settlement of Stock Options that are eligible to settle 
through NSCC's CNS Accounting Operation and are designated to settle 
regular way. The New Accord would also expand the category of 
securities eligible for settlement under the agreement. In particular, 
the New Accord would facilitate the processes by which Common Members 
deliver and receive stock in settlement of Stock Futures that are 
eligible to settle through NSCC's CNS Accounting Operation and are 
designated to settle regular way. It would also provide for the 
settlement of both Stock Options and Stock Futures that are eligible to 
settle through NSCC's Balance Order Accounting Operation on a regular 
way basis. The primary purpose of expanding the category of securities 
that are eligible for settlement and guaranty under the agreement is to 
provide consistent treatment across all expiries for products with 
regular way settlement cycle specifications and simplify the settlement 
process for these additional securities transactions.
    The New Accord would not apply to Stock Options or Stock Futures 
that are designated to settle on a shorter timeframe than the regular 
way settlement timeframe. These Stock Options would continue to be 
processed and settled as they would be today, outside of the New 
Accord. The New Accord also would not apply to any Stock Options or 
Stock Futures that are neither CNS Securities nor Balance Order 
Securities.\16\ Transactions in these securities are, and would 
continue to be processed on a trade-for-trade basis away from NSCC's 
facilities. Such transactions may utilize other NSCC services for which 
they are eligible, but would not be subject to the New Accord.\17\
---------------------------------------------------------------------------

    \16\ Balance Order Securities are defined in NSCC Rule 1, and 
are generally securities, other than foreign securities, that are 
eligible to be cleared at NSCC but are not eligible for processing 
through the CNS Accounting Operation. See supra note 4.
    \17\ OCC will continue to guarantee settlement until settlement 
actually occurs with respect to these Stock Options and Stock 
Futures.
---------------------------------------------------------------------------

Proposed Changes Related to Guaranty Substitution
    The New Accord would adopt a fundamentally different approach to 
the delineation of the rights and responsibilities of OCC and NSCC with 
respect to E&A/Delivery Transactions. The purpose of the proposed 
changes related to the Guaranty Substitution, defined below, is to 
reduce the operational complexities of the Existing Accord by 
eliminating the cross-guaranty between OCC and NSCC and the bifurcated 
risk management of exercised and assigned transactions between the two 
clearing agencies and delineating a single point in time at which OCC's 
Guaranty ceases and NSCC's Guaranty begins. Moreover, the proposed 
changes would solidify the roles and responsibilities of OCC and NSCC 
in the event of a default of a Common Member at either or both clearing 
agencies.
    As described above, the Existing Accord provides that NSCC will 
make a payment to OCC following the default of a Common Member in an 
amount equal to the lesser of OCC's loss or the positive mark-to-market 
amount relating to the Common Member's Options E&A, and provides that 
OCC will make a payment to NSCC following the default of a Common 
Member equal to the lesser of NSCC's loss or the negative mark-to-
market amount relating to the Common Member's Options E&A to compensate 
for potential losses incurred in connection with the Common Member's 
default. The proposed New Accord, in contrast, would focus on the 
transfer of responsibilities from OCC to NSCC and, specifically, the 
point at which OCC's Guaranty ends and NSCC's Guaranty begins (i.e., 
the Guaranty Substitution) with respect to E&A/Delivery Transactions. 
By focusing on the timing of the Guaranty Substitution, rather than 
payment from one clearing agency to the other, the New Accord would 
simplify the agreement and the procedures for situations involving the 
default of a Common Member. The New Accord additionally would minimize 
``double-margining'' situations when a Common Member may simultaneously 
owe margin to both NSCC and OCC with respect to the same E&A/Delivery 
Transaction.
    After NSCC has received an E&A/Delivery Transaction, the Guaranty 
Substitution would normally occur when NSCC has received all Required 
Deposits to its Clearing Fund, calculated taking into account such E&A/
Delivery Transaction, of Common Members (``Guaranty Substitution 
Time'').\18\ At the Guaranty Substitution Time, NSCC's Guaranty takes 
effect, and OCC does not retain any settlement obligations with respect 
to such E&A/Delivery Transactions. The Guaranty Substitution would not 
occur, however, with respect to any E&A/Delivery Transaction if NSCC 
has rejected such E&A/Delivery Transaction due to an improper 
submission, as described above, or if, during the time after NSCC's 
receipt of the E&A/Delivery Transaction but prior to the Guaranty 
Substitution Time, a Common Member involved in the E&A/Delivery 
Transaction has defaulted on its obligations to NSCC by failing to meet 
its Clearing Fund obligations, or NSCC has otherwise ceased to act for 
such Common Member pursuant to the NSCC Rules (in either case, such 
Common Member becomes a ``Defaulting NSCC Member'').
---------------------------------------------------------------------------

    \18\ Procedure XV of the NSCC Rules provides that all Clearing 
Fund requirements and other deposits must be made within one hour of 
demand, unless NSCC determines otherwise. See supra note 4.
---------------------------------------------------------------------------

    NSCC would be required to promptly notify OCC if a Common Member 
becomes a Defaulting NSCC Member, as

[[Page 28144]]

described above. Upon receiving such a notice, OCC would not submit to 
NSCC any further E&A/Delivery Transactions involving the Defaulting 
NSCC Member for settlement, unless authorized representatives of both 
OCC and NSCC otherwise consent. OCC would, however, deliver to NSCC a 
list of all E&A/Delivery Transactions that have already been submitted 
to NSCC and that involve the Defaulting NSCC Member (``Defaulted NSCC 
Member Transactions''). The Guaranty Substitution ordinarily would not 
occur with respect to any Defaulted NSCC Member Transactions, unless 
both clearing agencies agree otherwise. As such, NSCC would have no 
obligation to guaranty such Defaulted NSCC Member Transactions, and OCC 
would continue to be responsible for effecting the settlement of such 
Defaulted NSCC Member Transactions pursuant to OCC's By-Laws and Rules. 
Once NSCC has confirmed the list of Defaulted NSCC Member Transactions, 
Guaranty Substitution would occur for all E&A/Delivery Transactions for 
that Activity Date that are not included on such list. NSCC would be 
required to promptly notify OCC upon the occurrence of the Guaranty 
Substitution Time on each Activity Date.
    If OCC suspends a Common Member after NSCC has received the E&A/
Delivery Transactions but before the Guaranty Substitution has 
occurred, and that Common Member has not become a Defaulting NSCC 
Member, the Guaranty Substitution would proceed at the Guaranty 
Substitution Time. In such a scenario, OCC would continue to be 
responsible for guaranteeing the settlement of the E&A/Delivery 
Transactions in question until the Guaranty Substitution Time, at which 
time the responsibility would transfer to NSCC. If, however, the 
suspended Common Member also becomes a Defaulting NSCC Member after 
NSCC has received the E&A/Delivery Transactions but before the Guaranty 
Substitution has occurred, Guaranty Substitution would not occur, and 
OCC would continue to be responsible for effecting the settlement of 
such Defaulted NSCC Member Transactions pursuant to OCC's By-Laws and 
Rules (unless both clearing agencies agree otherwise).
    Finally, the New Accord also would provide for the consistent 
treatment of all exercise and assignment activity under the agreement. 
Under the Existing Accord, ``standard'' \19\ option contracts become 
guaranteed by NSCC when the Common Member meets its morning Clearing 
Fund Required Deposit at NSCC while ``non-standard'' exercise and 
assignment activity becomes guaranteed by NSCC at midnight of the day 
after trade date (T+1). Under the New Accord, all exercise and 
assignment activity for Eligible Securities would be guaranteed by NSCC 
as of the Guaranty Substitution Time, under the circumstances described 
above, further simplifying the framework for the settlement of such 
contracts.
---------------------------------------------------------------------------

    \19\ Option contracts with ``standard'' expirations expire on 
the third Friday of the specified expiration month, while ``non-
standard'' contracts expire on other days of the expiration month.
---------------------------------------------------------------------------

Other Terms of the New Accord
    The New Accord also would include a number of other provisions 
intended to either generally maintain certain terms of the Existing 
Accord or improve the procedures, information sharing, and overall 
governance process under the new agreement. Many of these terms are 
additions to or improvements upon the terms of the Existing Accord.
    Under the proposed New Accord, OCC and NSCC would agree to address 
the specifics regarding the time, form and manner of various required 
notifications and actions in a separate service level agreement, which 
the parties would be able to revisit as their operational needs evolve. 
The service level agreement would also specify an effective date for 
the New Accord, which, as mentioned above, would occur on a date 
following approval and effectiveness of all required regulatory 
submissions to be filed by OCC and NSCC with the appropriate regulatory 
authorities. Similar to the Existing Accord, the proposed New Accord 
would remain in effect (a) until it is terminated by the mutual written 
agreement of OCC and NSCC, (b) until it is unilaterally terminated by 
either clearing agency upon one year's written notice (as opposed to 
six months under the Existing Accord), or (c) until it is terminated by 
either NSCC or OCC upon the bankruptcy or insolvency of the other, 
provided that the election to terminate is communicated to the other 
party within three business days by written notice.
    Under the proposed New Accord, NSCC would agree to notify OCC if 
NSCC ceases to act for a Common Member pursuant to the NSCC Rules no 
later than the earlier of NSCC's provision of notice of such action to 
the governmental authorities or notice to other NSCC Members. 
Furthermore, if an NSCC Member for which NSCC has not yet ceased to act 
fails to satisfy its Clearing Fund obligations to NSCC, NSCC would be 
required to notify OCC promptly after discovery of the failure. 
Likewise, OCC would be required to notify NSCC of the suspension of a 
Common Member no later than the earlier of OCC's provision of notice to 
the governmental authorities or other OCC Clearing Members.
    Under the Existing Accord, NSCC and OCC agree to share certain 
reports and information regarding settlement activity and obligations 
under the agreement. The New Accord would enhance this information 
sharing between the clearing agencies. Specifically, NSCC and OCC would 
agree to share certain information, including general risk management 
due diligence regarding Common Members, lists of Common Members, and 
information regarding the amounts of Common Members' margin and 
settlement obligations at OCC or Clearing Fund Required Deposits at 
NSCC. NSCC and OCC would also be required to provide the other clearing 
agency with any other information that the other reasonably requests in 
connection with the performance of its obligations under the New 
Accord. All such information would be required to be kept confidential, 
using the same care and discretion that each clearing agency uses for 
the safekeeping of its own members' confidential information. NSCC and 
OCC would each be required to act in good faith to resolve and notify 
the other of any errors, discrepancies or delays in the information it 
provides.
    The New Accord also would include new terms to provide that, to the 
extent one party is unable to perform any obligation as a result of the 
failure of the other party to perform its responsibilities on a timely 
basis, the time for the non-failing party's performance would be 
extended, its performance would be reduced to the extent of any such 
impairment, and it would not be liable for any failure to perform its 
obligations. Further, NSCC and OCC would agree that neither party would 
be liable to the other party in connection with its performance of its 
obligations under the proposed New Accord to the extent it has acted, 
or omitted or ceased to act, with the permission or at the direction of 
a governmental authority. Moreover, the proposed New Accord would 
provide that in no case would either clearing agency be liable to the 
other for punitive, incidental or consequential damages. The purpose of 
these new provisions is to provide clear and specific terms regarding 
each clearing agency's liability for non-performance under the 
agreement.

[[Page 28145]]

    The proposed New Accord would also contain the usual and customary 
representations and warranties for an agreement of this type, including 
representations as to the parties' good standing, corporate power and 
authority and operational capability, that the agreement complies with 
laws and all government documents and does not violate any agreements, 
and that all of the required regulatory notifications and filings would 
be obtained prior to the New Accord's effective date. It would also 
include representations that the proposed New Accord constitutes a 
legal, valid and binding obligation on each of OCC and NSCC and is 
enforceable against each, subject to standard exceptions. Furthermore, 
the proposed New Accord would contain a force majeure provision, under 
which NSCC and OCC would agree to notify the other no later than two 
hours upon learning that a force majeure event has occurred and both 
parties would be required to cooperate in good faith to mitigate the 
effects of any resulting inability to perform or delay in performing.
Proposed Amendments to NSCC Procedures III and XV of the NSCC Rules
    Given the key differences between the Existing Accord and the New 
Accord, as described above, NSCC proposes certain changes to Procedures 
III and XV of the NSCC Rules in order to accommodate the terms of the 
New Accord. In particular, NSCC would update Section B of Procedure III 
to define the scope of the New Accord. First, the proposed Section B of 
Procedure III would identify the E&A/Delivery Transactions, and would 
make clear that the New Accord would apply only to E&A/Delivery 
Transactions that are in either CNS Securities or Balance Order 
Securities, as such terms are defined in the NSCC Rules. The proposed 
Section B of Procedure III would also define the Common Members, or 
firms that must be named as counterparties to E&A/Delivery 
Transactions, as ``Participating Members.'' The proposal would describe 
the Guaranty Substitution Time and would describe the circumstances 
under which the Guaranty Substitution would not occur. Finally, the 
proposed Section B of Procedure III would describe how E&A/Delivery 
Transactions for which the Guaranty Substitution has occurred would be 
processed at NSCC both if they are covered by the proposed New Accord 
and if they are not covered by the proposed New Accord because, for 
example, they are not transactions in CNS Securities or Balance Order 
Securities or were not submitted for regular way settlement.
    Finally, NSCC is also proposing to amend Procedure XV to remove 
reference to the exclusion of E&A/Delivery Transactions from the 
calculation of the mark-to-market margin component of its Clearing Fund 
calculations, which is no longer applicable under the proposed New 
Accord where the Guaranty Substitution would replace the transfer of a 
defaulting Common Member's margin payments under the Existing Accord. 
As such, NSCC is not proposing any change to its margining methodology, 
but will include E&A/Delivery Transactions in the calculation the mark-
to-market margin component of Common Members' Clearing Fund Required 
Deposits following implementation of the New Accord.
2. Statutory Basis
    Section 17A(b)(3)(F) of the Act, requires, in part, that the rules 
of a clearing agency be designed to promote the prompt and accurate 
clearance and settlement of securities transactions, to assure the 
safeguarding of securities and funds which are in the custody or 
control of the clearing agency or for which it is responsible, and to 
foster cooperation and coordination with persons engaged in the 
clearance and settlement of securities transactions.\20\ NSCC believes 
that the proposed rule change is consistent with the requirements of 
Section 17A(b)(3)(F) of the Act \21\ and the rules thereunder 
applicable to NSCC for the reasons set forth below.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78q-1(b)(3)(F).
    \21\ Id.
---------------------------------------------------------------------------

    In connection with the proposal to enhance the timing of the 
Guaranty Substitution, the proposed New Accord, and related changes to 
the NSCC Rules, would establish clear, transparent, and enforceable 
terms for the settlement of OCC's cleared Stock Options and Stock 
Futures through the facilities of NSCC. Specifically, the New Accord 
would continue to provide a sound framework for the settlement of 
certain Stock Options issued and cleared by OCC through the facilities 
of NSCC and would extend this framework to a clearly defined scope of 
additional Stock Options and Stock Futures transactions. In addition, 
the proposed rule change would simplify the settlement process for 
those Stock Options currently settled under the Existing Accord by 
clarifying the timing and mechanisms by which OCC's guaranty ends and 
NSCC's guaranty begins by focusing on the timing of the Guaranty 
Substitution, as described in detail above. By clarifying and 
simplifying the settlement process for these transactions, the New 
Accord would operate to minimize the risk of interruptions to clearing 
agency operations in the event of a Common Member default, and, in this 
way, would promote the prompt and accurate clearance and settlement of 
securities transactions.
    In addition, by eliminating any ambiguity regarding which clearing 
agency is responsible for guaranteeing settlement at any given moment, 
the proposal to enhance the timing of the Guaranty Substitution would 
provide greater certainty that in the event of a Common Member default, 
the default would be handled pursuant to the rules and procedures of 
the clearing agency whose guarantee is then in effect and the system 
for the clearance and settlement of Stock Options and Stock Futures 
would continue with minimal interruption. This greater certainty would 
strengthen OCC's and NSCC's ability to plan for and manage, and 
therefore would mitigate, the risk presented by Common Member defaults. 
It would also minimize the ``double margining'' issue that occurs under 
the Existing Accord so that Common Members would no longer be required 
to post margin at both clearing agencies to cover the same E&A/Delivery 
Transactions, thereby reducing their potential exposures across 
multiple clearing agencies for the same positions. In this way, the New 
Accord is designed to safeguard the securities and funds which are in 
the custody or control of NSCC or for which it is responsible.
    The proposals to expand the category of securities eligible for 
settlement and guarantee and to apply uniform treatment to standard and 
non-standard options under the New Accord would provide consistent 
treatment across all expiries for products with regular way settlement 
cycle specifications, and would promote the prompt and accurate 
clearance and settlement of these additional securities transactions.
    In connection with the proposal to enhance the information sharing 
arrangement between NSCC and OCC, NSCC and OCC would agree to share 
certain information, including general risk management due diligence 
regarding Common Members, lists of Common Members, and information 
regarding the amounts of Common Members' margin and settlement 
obligations at OCC or Clearing Fund Required Deposits at NSCC. In this 
way, the New Accord would foster cooperation and coordination between

[[Page 28146]]

OCC and NSCC in the settlement of securities transactions.
    Finally, the proposed changes to the NSCC Rules would provide 
additional clarity, transparency, and certainty around the application 
of the New Accord to the applicable E&A/Delivery Transactions. By 
providing its Members with this additional clarity, transparency, and 
certainty in the NSCC Rules, the proposed rule change would promote the 
prompt and accurate clearance and settlement of securities transactions 
and the safeguarding of securities and funds which are in the custody 
or control of NSCC or for which it is responsible.
    Therefore, for the reasons stated above, NSCC believes that the 
proposed rule change is consistent with the requirements of Section 
17A(b)(3)(F) of the Act.\22\
---------------------------------------------------------------------------

    \22\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(1) under the Act requires that a covered clearing 
agency establish, implement, maintain and enforce written policies and 
procedures reasonably designed to provide for a well-founded, clear, 
transparent, and enforceable legal basis for each aspect of its 
activities in all relevant jurisdictions.\23\ The New Accord would 
constitute a legal, valid and binding obligation on each of OCC and 
NSCC, which is enforceable against each clearing agency. In connection 
with the proposal to enhance the timing of the Guaranty Substitution, 
the New Accord would establish clear, transparent, and enforceable 
terms for the settlement of OCC's cleared Stock Options and Stock 
Futures through the facilities of NSCC and would simplify the 
settlement process for those Stock Options currently settled under the 
Existing Accord. By clarifying the timing and mechanisms by which OCC's 
Guaranty ends and NSCC's Guaranty begins by focusing on the timing of 
the Guaranty Substitution, the new Accord, specifically the proposal to 
enhance the timing of the Guaranty Substitution, would provide a clear, 
transparent and enforceable legal basis for OCC's and NSCC's 
obligations during the event of a Common Member default. As a result, 
NSCC believes that the proposal is consistent with the requirements of 
Rule 17Ad-22(e)(1).\24\
---------------------------------------------------------------------------

    \23\ 17 CFR 240.17Ad-22(e)(1).
    \24\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(20) under the Act requires, in part, that a covered 
clearing agency establish, implement, maintain and enforce written 
policies and procedures reasonably designed to identify, monitor, and 
manage risks related to any link the covered clearing agency 
establishes with one or more other clearing agencies or financial 
market utilities.\25\
---------------------------------------------------------------------------

    \25\ 17 CFR 240.17Ad-22(e)(20).
---------------------------------------------------------------------------

    NSCC is proposing to adopt the New Accord in order to address the 
risks it has identified related to its existing link with OCC within 
the Existing Accord. Specifically, under the terms of the Existing 
Accord, even after NSCC's guarantee has come into effect, OCC is not 
released from its guarantee with respect to the Options E&A until 
certain deadlines have passed on the first business day following the 
scheduled settlement date without NSCC notifying OCC that the relevant 
Common Member has failed to meet an obligation to NSCC and/or NSCC has 
ceased to act for such firm. This current process results in a period 
of time where NSCC's trade guarantee and OCC's guarantee both apply to 
the same positions, and, therefore, both clearing agencies are holding 
margin against the same Options E&A position. As a result, the Existing 
Accord provides for a more complicated framework for the settlement of 
certain Stock Options. These complications could give rise to 
inconsistencies with regard to the development and application of 
interdependent policies and procedures between OCC and NSCC, which 
could lead to unanticipated disruptions in OCC's or NSCC's clearing 
operations.
    In connection with the proposal to enhance the timing of the 
Guaranty Substitution, the New Accord would provide for a clearer, 
simpler framework for the settlement of certain Stock Options and Stock 
Futures by pinpointing a specific moment in time, the Guaranty 
Substitution Time, at which guarantee obligations would transfer from 
OCC to NSCC. The New Accord would eliminate any ambiguity regarding 
which clearing agency is responsible for guaranteeing settlement at any 
given moment. Establishing a precise Guaranty Substitution Time would 
also provide greater certainty that in the event of a Common Member 
default, the default would be handled pursuant to the rules and 
procedures of the clearing agency whose guarantee is then in effect and 
the system for the clearance and settlement of Stock Options and Stock 
Futures would continue with minimal interruption. This greater 
certainty would strengthen OCC's and NSCC's ability to plan for and 
manage, and therefore would mitigate, the risk presented by Common 
Member defaults to OCC and NSCC, other members, and the markets the 
clearing agencies serve. Therefore, through the adoption of the 
proposal to enhance the timing of the Guaranty Substitution, NSCC would 
more effectively manage its risks related to the operation of the New 
Accord.
    Moreover, in connection with the proposal to put additional 
arrangements into place concerning the procedures, information sharing, 
and overall governance processes under the New Accord, NSCC and OCC 
would agree to share certain information, including general 
surveillance information regarding their members, so that each clearing 
agency would be able to effectively identify, monitor, and manage risks 
that may be presented by certain Common Members. Accordingly, NSCC 
believes the proposed changes are reasonably designed to identify, 
monitor, and manage risks related to the link established between OCC 
and NSCC for the settlement of certain Stock Options and Stock Futures 
in a manner consistent with Rule 17Ad-22(e)(20).\26\
---------------------------------------------------------------------------

    \26\ Id.
---------------------------------------------------------------------------

    Finally, Rule 17Ad-22(e)(21) under the Act requires that a covered 
clearing agency establish, implement, maintain and enforce written 
policies and procedures reasonably designed to, among other things, be 
efficient and effective in meeting the requirements of its participants 
and the markets it serves.\27\ As noted above, under the Existing 
Accord, even after NSCC's guarantee has come into effect, OCC is not 
released from its guarantee with respect to the Options E&A until 
certain deadlines have passed on the first business day following the 
scheduled settlement date without NSCC notifying OCC that the relevant 
Common Member has failed to meet an obligation to NSCC and/or NSCC has 
ceased to act for such firm. This results in a period of time where 
NSCC's guarantee overlaps with OCC's guarantee and where both clearing 
agencies are holding margin against the same Options E&A positions. In 
connection with the proposal to enhance the timing of the Guaranty 
Substitution, the New Accord would minimize this ``double margining'' 
issue by introducing a new Guaranty Substitution Time, which would 
normally occur as soon as NSCC has received all Required Deposits to 
the Clearing Fund from Common Members, which have been calculated 
taking into account the relevant E&A/Delivery Transactions, rather than 
require reimbursement payments from one clearing agency to the other. 
As a result, Common Members would no longer be required to post margin 
at both clearing agencies to cover the same E&A/Delivery Transactions. 
NSCC believes

[[Page 28147]]

that, by simplifying the terms of the existing agreement in this way, 
the New Accord is designed to be efficient and effective in meeting the 
requirements of OCC's and NSCC's participants and the markets they 
serve.
---------------------------------------------------------------------------

    \27\ 17 CFR 240.17Ad-22(e)(21).
---------------------------------------------------------------------------

    Additionally, the proposal to put additional arrangements into 
place concerning the procedures, information sharing, and overall 
governance processes under the New Accord would create new efficiencies 
in the management of this important link between OCC and NSCC. The 
proposal to enhance information sharing between OCC and NSCC would 
allow the clearing agencies to more effectively identify, monitor, and 
manage risks that may be presented by certain Common Members, and would 
create new efficiencies in their general surveillance efforts with 
respect to these firms.
    In these ways, NSCC believes the proposed New Accord is consistent 
with the requirements of Rule 17Ad-22(e)(21).\28\
---------------------------------------------------------------------------

    \28\ Id.
---------------------------------------------------------------------------

    The proposed rule change is not inconsistent with the existing NSCC 
Rules, including any other rules proposed to be amended.

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

    Section 17A(b)(3)(I) of the Act 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.\29\ NSCC does 
not believe the proposed rule change would have any impact or impose 
any burden on competition. The primary purpose of the proposed rule 
change is to adopt a clearer, simpler framework for the settlement of 
Stock Options issued by OCC and settled through the facilities of NSCC, 
through the introduction of a new Guaranty Substitution Time. The 
proposed New Accord would also extend this framework to both (1) Stock 
Options contracts in securities that are eligible to be settled through 
NSCC's Balance Order Accounting Operation and (2) certain delivery 
obligations arising from matured physically-settled Stock Futures 
contracts cleared by OCC that are eligible to be settled through NSCC's 
CNS Accounting Operation or Balance Order Accounting Operation. The New 
Accord would put additional arrangements into place concerning the 
procedures, information sharing, and overall governance processes under 
the agreement. NSCC is also proposing to make certain clarifying and 
conforming changes to the NSCC Rules as necessary to implement the New 
Accord. None of these proposed rule changes, either individually or 
together, would affect Common Members' access to NSCC's services, nor 
would any of these proposed changes disadvantage or favor any 
particular user in relationship to another user. As such, NSCC believes 
that the proposed changes would not have any impact or impose any 
burden on competition.
---------------------------------------------------------------------------

    \29\ 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. NSCC 
will notify the Commission of any written comments received by NSCC.

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.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NSCC-2017-007 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-NSCC-2017-007. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549 on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of NSCC and on 
DTCC's Web site (http://dtcc.com/legal/sec-rule-filings.aspx). All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NSCC-2017-007 and should be 
submitted on or before July 11, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\30\
Eduardo A. Aleman,
Assistant Secretary.
---------------------------------------------------------------------------

    \30\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

[FR Doc. 2017-12892 Filed 6-19-17; 8:45 am]
 BILLING CODE 8011-01-P


