[Federal Register Volume 84, Number 199 (Tuesday, October 15, 2019)]
[Notices]
[Pages 55194-55201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22392]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87257; File No. SR-OCC-2019-805]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing of Partial Amendment No. 1 and Notice of No Objection 
to Advance Notice, as Modified by Partial Amendment No. 1, Concerning a 
Proposed Capital Management Policy That Would Support the Options 
Clearing Corporation's Function as a Systemically Important Financial 
Market Utility

October 8, 2019.

I. Introduction

    On August 9, 2019, The Options Clearing Corporation (``OCC'') filed 
with the Securities and Exchange Commission (``Commission'') advance 
notice SR-OCC-2019-805 (``Advance Notice'') 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\ to adopt a policy concerning capital management 
at OCC, which includes OCC's plan to replenish its capital in the event 
it falls close to or below target capital levels.\4\ The Advance Notice 
was published for public comment in the Federal Register on September 
11, 2019,\5\ and the

[[Page 55195]]

Commission has received comments regarding the changes proposed in the 
Advance Notice.\6\ On September 11, 2019, OCC filed a partial amendment 
(``Partial Amendment No. 1'') to modify the Advance Notice.\7\ The 
Commission is publishing this notice to solicit comments on Partial 
Amendment No. 1 from interested persons and, for the reasons discussed 
below, is hereby providing notice of no objection to the Advance 
Notice.
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    \1\ 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\ See Notice of Filing infra note 5, at 84 FR 47990.
    \5\ Securities Exchange Act Release No. 86888 (Sep. 5, 2019), 84 
FR 47990 (Sep. 11, 2019) (File No. SR-OCC-2019-805) (``Notice of 
Filing''). On August 9, 2019, OCC also filed a related proposed rule 
change (SR-OCC-2019-007) with the Commission pursuant to Section 
19(b)(1) of the Exchange Act and Rule 19b-4 thereunder (``Proposed 
Rule Change''). 15 U.S.C. 78s(b)(1) and 17 CFR 240.19b-4, 
respectively. In the Proposed Rule Change, which was published in 
the Federal Register on August 27, 2019, OCC seeks approval of 
proposed changes to its rules necessary to implement the Advance 
Notice. Securities Exchange Act Release No. 86725 (Aug. 21, 2019), 
84 FR 44944 (Aug. 27, 2019). The comment period for the related 
Proposed Rule Change filing closed on September 17, 2019.
    \6\ See letter from Jacqueline Mesa, Chief Operating Officer & 
Senior Vice President of Global Policy Futures Industry Association 
(``FIA''), dated September 17, 2019, to Vanessa Countryman, 
Secretary, Commission (``FIA Letter''); letter from Joseph P. 
Kamnik, Senior Vice President and Chief Regulatory Counsel, OCC, 
dated September 20, 2019 to Vanessa Countryman, Secretary, 
Commission (``OCC Letter''); letter from Steven Morrison, SVP, 
Associate General Counsel, LPL Financial (``LPL''), dated September 
17, 2019 (received September 26, 2019) to Brent J. Fields, 
Secretary, Commission, (``LPL Letter''); letter from Brian Sopinsky, 
General Counsel, Susquehanna International Group (``SIG''), dated 
October 1, 2019, to Vanessa Countryman, Secretary, Commission (``SIG 
Letter''); memorandum from Sean Memon, Chief of Staff to Chairman 
Jay Clayton, Commission, to File No. SR-OCC-2019-007, dated October 
2, 2019, available at https://www.sec.gov/comments/sr-occ-2019-007/srocc2019007.htm.
    Since the proposal contained in the Advance Notice was also 
filed as a proposed rule change, all public comments received on the 
proposal are considered regardless of whether the comments are 
submitted on the proposed rule change or the Advance Notice.
    \7\ In Partial Amendment No. 1, OCC appended an Exhibit 2 to the 
materials filed on August 9, 2019 regarding File No. SR-OCC-2019-
805. The appended Exhibit 2 consists of communications from OCC 
concerning the proposal dated after OCC filed the proposal on August 
9, 2019 and does not change the purpose of or basis for the Advance 
Notice. References to the Advance Notice from this point forward 
refer to the Advance Notice, as amended by Partial Amendment No. 1.
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II. Background

    On February 13, 2019, the Commission issued an order disapproving a 
rule change that OCC proposed regarding a plan to increase OCC's 
capitalization.\8\ OCC now proposes changes to adopt, as part of its 
rules, a new policy concerning capital management at OCC (``Capital 
Management Policy''). Specifically, the proposed Capital Management 
Policy would (i) describe how OCC would determine the amount of liquid 
net assets funded by equity (``LNAFBE'') necessary to cover OCC's 
potential general business losses; (ii) require OCC to hold a minimum 
amount of shareholders equity (``Equity'') sufficient to support the 
amount of LNAFBE determined to be necessary; \9\ and (iii) establish a 
plan for replenishing OCC's capital in the event that Equity were to 
fall below certain thresholds. OCC also proposes to revise its existing 
rules to support the terms of the proposed Capital Management policy.
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    \8\ See Securities Exchange Act Release No. 85121 (Feb. 13, 
2019), 84 FR 5157 (Feb. 20, 2019) (File No. SR-OCC-2015-02).
    \9\ LNAFBE would mean cash and cash equivalents to the extent 
that such cash and cash equivalents do not exceed Equity.
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A. Determining Capital Requirements

    As noted above, OCC proposes to adopt rules describing the 
determination of the LNAFBE necessary to cover potential general 
business losses. As proposed, LNAFBE would be a subset of OCC's overall 
Equity--specifically, cash and cash equivalents, less any approved 
adjustments--and therefore could not, by definition, exceed Equity. 
Specifically, OCC proposes to set a ``Target Capital Requirement,'' 
which would be based on two components: (i) The amount of LNAFBE 
determined by OCC to be necessary to ensure compliance with OCC's 
regulatory obligations, including Rule 17Ad-22(e)(15) under the 
Exchange Act; \10\ and (ii) any additional amounts determined to be 
necessary and appropriate for capital expenditures approved by OCC's 
Board.\11\
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    \10\ 17 CFR 240.17Ad-22(e)(15).
    \11\ In setting the Target Capital Requirement, OCC would also 
consider but not be bound by, its projected rolling twelve-months' 
operating expenses pursuant to OCC's interpretation of Commodity 
Exchange Act Rule 39.11(a)(2). 17 CFR 39.11(a)(2). Nothing in this 
Order constitutes an interpretation of Rule 39.11(a)(2) under the 
Commodity Exchange Act by the Commission or an endorsement of OCC's 
interpretation of Rule 39.11(a)(2).
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    With respect to the first component of the Target Capital 
Requirement, to ensure that it is set at a level sufficient to ensure 
compliance with OCC's regulatory obligations, OCC proposes to set its 
Target Capital Requirement, at a minimum, equal to the greater of three 
amounts: (i) An amount equal to six months of OCC's current operating 
expenses; (ii) the amount determined by OCC's Board to be sufficient to 
ensure a recovery or orderly wind-down of critical operations and 
services (``RWD Amount''); \12\ or (iii) the amount determined by OCC's 
Board to be sufficient for OCC to continue operations and services as a 
going concern if general business losses materialize (``Potential Loss 
Amount'').\13\ OCC believes that a minimum Target Capital Requirement 
sized to cover at least these three amounts would address OCC's 
obligations under Exchange Act Rule 17Ad-22(e)(15).\14\ With respect to 
the second component of the Target Capital Requirement, the proposal 
would authorize OCC's Board to increase the Target Capital Requirement 
by an amount to be retained for capital expenditures.\15\ OCC's Board 
would be responsible for reviewing and approving the Target Capital 
Requirement annually.
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    \12\ Under the proposal, OCC's Board would approve the RWD 
Amount annually at a level designed to cover the cost to maintain 
OCC's critical services over the recovery or wind-down period. 
Identification of OCC's critical services and the length of time 
necessary to recover or wind-down is covered in OCC's Recovery and 
Wind-Down Plan. See Securities Exchange Act Release No. 83918 (Aug. 
23, 2018), 83 FR 44091 (Aug. 29, 2018).
    \13\ Under the proposal, OCC's Board would set the Potential 
Loss Amount by analyzing and aggregating potential losses from 
individual operational risk scenarios, aggregating the loss events, 
and conducting loss modeling at or above the 99 percent confidence 
level.
    \14\ See Notice of Filing, 84 FR at 47991.
    \15\ Under the proposal, OCC's Board could determine, in the 
alternative, to fund capital expenditures out of funds in excess of 
the Target Capital Requirement. OCC stated that, in making such a 
determination, its Board would consider factors including, but not 
limited to, the amount of funding required, the amount of Equity 
proposed to be retained, the potential impact of the investment on 
OCC's operations, and the duration of time over which funds would be 
accumulated. See Notice of Filing, 84 FR at 47991.
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B. Maintaining Capital

    As noted above, OCC proposes to adopt rules that would require it 
to hold the minimum amount of Equity necessary to cover the Target 
Capital Requirement. Specifically, OCC proposes to adopt rules 
pertaining to the monitoring and management of OCC's Equity. Under the 
proposed rules, OCC's senior management would be responsible for 
reviewing analyses, including projections of future volume, expenses, 
cash flows, capital needs and other factors, to help ensure adequate 
financial resources are available to meet general business obligations. 
Such analyses would also include a monthly review of whether OCC's 
Equity falls close to or below the Target Capital Requirement. Under 
the proposal, OCC would view Equity less than 110 percent of the Target 
Capital Requirement as falling close to the Target Capital 
Requirement.\16\ OCC

[[Page 55196]]

would refer to a breach of this 110 percent threshold as an ``Early 
Warning.'' Under the proposed rules, OCC's senior management would be 
obligated to notify OCC's Board promptly if Equity were to fall below 
the Early Warning threshold and to recommend to the Board whether to 
implement a fee increase in an amount that the Board determines 
necessary and appropriate to raise additional Equity.
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    \16\ OCC stated that 10 percent of the Target Capital 
Requirement represents approximately two months of earnings, and 
that OCC believes that a two-month window would provide OCC's senior 
management and Board sufficient time to respond to a deterioration 
of OCC's capital. See Notice of Filing, 84 FR at 47992.
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    Under the proposal, OCC's senior management would also, on a 
quarterly basis, review OCC's schedule of fees in consideration of 
projected operating expenses, projected volumes, anticipated cash 
flows, and capital needs. Based on its review, OCC's senior management 
would recommend to OCC's Board Compensation and Performance Committee 
whether to issue a fee increase, decrease or fee waiver. Additionally, 
if Equity were to exceed 110 percent of the Target Capital Requirement 
plus an amount of excess Equity approved for capital expenditures, 
OCC's Board could reduce the cost of clearing by lowering fees, 
declaring a fee holiday, or issuing refunds.
    OCC stated that resources held to meet OCC's Target Capital 
Requirement would be in addition to OCC's resources to cover 
participant defaults.\17\ OCC proposes, however, to mitigate losses 
arising out of a Clearing Member default with OCC's excess capital. 
Specifically, OCC proposes to offset default losses remaining after the 
application of a defaulted Clearing Member's margin deposits and 
Clearing Fund contributions with capital in excess of 110 percent of 
the Target Capital Requirement (``skin-in-the-game''). OCC also 
proposes to charge losses remaining after the application of skin-in-
the-game to OCC senior management's deferred compensation as well as 
non-defaulting Clearing Members.\18\
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    \17\ See Notice of Filing, 84 FR at 47997.
    \18\ Such losses would be charged on a pro rata basis to (a) 
non-defaulting Clearing Members' Clearing Fund contributions, and 
(b) the aggregate value of the EDCP Unvested Balance (defined 
below).
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C. Replenishing Capital

    OCC proposes to establish a plan for replenishing its capital in 
the event that Equity were to fall below certain thresholds 
(``Replenishment Plan''). As described above, OCC proposes to establish 
an Early Warning threshold to define when OCC's Equity falls close 
enough to the Target Capital Requirement to require action. OCC also 
proposes to establish two ``Trigger Event'' thresholds to identify (i) 
whether OCC's Equity were to fall below the Target Capital Requirement; 
and (ii) the appropriate response based on the severity and speed of 
capital deterioration. Further, the proposed Capital Management Policy 
would require that, on an annual basis, OCC's Management recommend that 
the Board approve or, as appropriate, modify the Replenishment Plan, 
and that the Board review and, as appropriate, approve Management's 
recommendation.
    Under the proposed rules, a Trigger Event would occur if OCC's 
Equity were to remain below 100 percent of the Target Capital 
Requirement for a period of 90 consecutive calendar days (referred to 
herein as the ``Moderate Trigger Event''). OCC believes that the 
failure of a fee increase resulting from an Early Warning to increase 
OCC's Equity above the Target Capital Requirement within 90 days would 
indicate that corrective action in the form of a fee increase would be 
insufficient.\19\ Under the proposed rules, a Trigger Event would also 
occur if OCC's Equity were to fall below 90 percent of the Target 
Capital Requirement at any time (referred to herein as the ``Severe 
Trigger Event''). OCC believes that a Severe Trigger Event would be a 
sign that corrective action more significant and with a more immediate 
impact than increasing fees should be taken to increase OCC's 
Equity.\20\
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    \19\ See Notice of Filing, 84 FR at 47992.
    \20\ See id.
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    As noted above, OCC's Board would be authorized to approve fee 
increases to address the deterioration of OCC's capital over time. To 
address the more acute capital replenishment needs posed by the Trigger 
Events, OCC proposes to authorize the use of two additional resources: 
(i) Funds held under The Options Clearing Corporation Executive 
Deferred Compensation Plan Trust (``EDCP''); \21\ and (ii) funds 
obtained by levying a special fee on Clearing Members.
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    \21\ The EDCP funds available for capital replenishment would be 
only those funds that are (i) deposited on or after January 1, 2020 
in respect of the EDCP and (ii) in excess of amounts necessary to 
pay for benefits accrued and vested under the EDCP at such time 
(``EDCP Unvested Balance'').
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    In response to a Trigger Event, OCC would be required to replenish 
its capital first through the contribution of the EDCP Unvested 
Balance. The amount of the EDCP Unvested Balance contributed would be 
the lesser of (i) the entire EDCP Unvested Balance or (ii) the amount 
necessary to raise OCC's Equity above 110 percent of the Target Capital 
Requirement. If a contribution of the entire EDCP Unvested balance were 
necessary, OCC would be required to reevaluate its Equity vis-[agrave]-
vis the Target Capital Requirement to determine whether further action 
would be required following such a contribution.
    The proposed rules would require that OCC take further action if, 
after contributing the entire EDCP Unvested Balance, either: (i) Equity 
were to remain above 90 percent, but below 100 percent, of the Target 
Capital Requirement for an additional 90-day period; \22\ or (ii) 
Equity were below 90 percent of the Target Capital Requirement. Under 
the proposal, if OCC were to determine that further action would be 
necessary to replenish its capital, OCC would be required to levy a 
special fee on its Clearing Members (``Operational Loss Fee''), which 
would be payable within five business days of OCC providing notice to 
the Clearing Members. Accordingly, OCC proposes to amend its schedule 
of fees to describe the maximum Operation Loss Fee that it could charge 
Clearing Members. The maximum Operational Loss Fee would be sized to 
provide OCC with the RWD Amount after any applicable taxes (``Adjusted 
RWD Amount'').\23\ Under the proposal, OCC would be authorized to 
charge Clearing Members, collectively, the lesser of (i) the maximum 
Operational Loss Fee; or (ii) the amount necessary to raise OCC's 
Equity above 110 percent of the Target Capital Requirement. Under the 
proposal, OCC would allocate the Operational Loss Fee equally among the 
Clearing Members. OCC believes that charging the Operational Loss Fee 
in equal shares is preferable to other potential allocation methods 
because it would equally mutualize the risk of operational loss among 
the firms that use OCC's services.\24\
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    \22\ The 90-calendar day term of a subsequent Moderate Trigger 
Event would be measured beginning on the date OCC applies the EDCP 
Unvested Balance.
    \23\ OCC acknowledged that the tax implications of the income 
represented by the Operational Loss Fee would depend on the extent 
to which any operational loss giving rise to a Trigger Event would 
be tax deductible. See Notice of Filing, 84 FR at 47993.
    \24\ See id. OCC stated that it found no evidence of a 
correlation between the risk of operational loss and either volume 
or a Clearing Member's credit risk profile. See id.
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    The proposed rules would permit OCC to charge amounts only up to 
the maximum Operational Loss Fee. If, after charging some amount less 
than the maximum Operational Loss Fee, OCC were to issue clearing fee 
refunds to manage excess capital, OCC would issue such refunds in equal 
shares until the amount of the Operational Loss Fee charged to each 
Clearing Member had been fully refunded. If OCC were to

[[Page 55197]]

charge some amount less than the maximum Operational Loss Fee, then the 
proposed rules would allow OCC to charge another Operational Loss Fee 
in the future, provided that the sum of all Operational Loss Fees, less 
amounts refunded, could not exceed the maximum Operational Loss Fee. In 
the event that OCC were to charge the maximum Operational Loss Fee, OCC 
would then be required to convene its Board to develop a new 
replenishment plan.

III. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-OCC-2019-805 on the subject line.

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-OCC-2019-805. 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 (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 website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of such filings will also be available for inspection 
and copying at the principal office of OCC and OCC's website at https://www.theocc.com/about/publications/bylaws.jsp.
    All comments received will be posted without change. Persons 
submitting comments are cautioned that we do not redact or edit 
personal identifying information from comment submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-OCC-2019-805 and should be 
submitted on or before October 30, 2019.

IV. Summary of Comments

    As noted above, the Commission received comments on the substance 
of the proposal. In its comment, the FIA requests clarification 
regarding certain aspects of OCC's proposal, raises concerns about 
other aspects, and generally expresses the hope that its concerns will 
be addressed prior to the approval of the related Proposed Rule 
Change.\25\ The FIA appreciates certain aspects of OCC's proposed skin-
in-the-game provisions and characterizes them as positive and important 
steps in the right direction.\26\ At the same time, the FIA suggests 
that the minimum amount of skin-in-the-game should be clearly defined, 
scalable, and prefunded.\27\ In response, OCC states that the 
Commission has not imposed a skin-in-the-game requirement, but that OCC 
nevertheless believes it is prudent to align OCC's incentives with 
those of the broader industry with respect to the management of risks 
faced by OCC and, as a result, has determined to propose the skin-in-
the-game provisions included in its proposal.\28\
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    \25\ FIA Letter at 1.
    \26\ FIA Letter at 1.
    \27\ FIA Letter at 1-2.
    \28\ OCC Letter at 1.
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    With respect to allocating a potential capital shortfall through 
the Operational Loss Fee, the FIA acknowledges that OCC has a hybrid 
ownership structure whereby it is owned by exchanges rather than 
members, and that OCC previously proposed to allocate capital 
shortfalls to shareholders rather than Clearing Members, but that 
proposal was disapproved by the Commission, and that as a result of 
those factors, OCC has now proposed to raise replenishment capital 
through the Operational Loss Fee. However, FIA expresses the belief 
that imposing the Operational Loss Fee on Clearing Members without 
providing a return is inequitable and that, ideally, OCC's shareholders 
should either be required to provide ``similar such commitment or allow 
for an equity dilution.'' \29\ In response, OCC notes that the 
Standards for Covered Clearing Agencies do not impose a requirement on 
the source of the funding other than the funds be ``equity'' of the 
clearing agency and that OCC originally proposed a plan for 
replenishment funding that would come from then-existing shareholders 
that was disapproved by the Commission.\30\
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    \29\ FIA Letter at 2.
    \30\ OCC Letter at 2.
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    The FIA agrees with OCC's proposal to apportion equally resources 
raised from Clearing Members, but suggests that OCC should clarify the 
mechanism for returning such resources.\31\ In response, OCC states 
that if an Operational Loss Fee were charged and OCC's capital 
subsequently exceeded 110 percent of the Target Capital Requirement 
such that OCC determined to return funds received pursuant to the 
charge, OCC would return the funds to Clearing Members in equal share 
to each Clearing Member that paid the Operational Loss Fee until such 
time as the aggregate amount of the Operational Loss Fee was 
returned.\32\
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    \31\ FIA Letter at 3.
    \32\ OCC Letter at 2-3. OCC's comment included an example to 
further clarify OCC's explanation. OCC Letter at 3.
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    Contrary to the FIA's comment, LPL expresses the belief that the 
proposal to allocate the Operational Loss fee in equal shares among 
OCC's Clearing Members would be inequitable, and therefore, in 
contravention of Exchange Act Section 17A(b)(3)(D).\33\ LPL 
acknowledges that Clearing Members may have access to clearance and 
settlement services provided by OCC, but states that allocating the 
Operational Loss Fee to Clearing Members in equal shares because they 
have equal access to the OCC's services would not necessarily result in 
an equitable allocation of such fees.\34\ LPL argues that Clearing 
Members' actual use of, and therefore actual benefit derived from, the 
operational availability of the OCC's services vary widely, and as 
such, in the event of an operational loss, not every Clearing Member 
would suffer to the same degree.\35\ Further, LPL argues that OCC's 
statement that there is no correlation between operational risks, on 
the one hand, and contract volume, on the other hand, is flawed 
inasmuch as it ignores the fact that a Clearing Member that makes 
greater use of the OCC's clearing and settlement system places greater 
strain on that system and thus exposes the system to greater 
operational risk.\36\
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    \33\ LPL Letter at 1.
    \34\ LPL Letter at 2.
    \35\ LPL Letter at 2-3.
    \36\ LPL Letter at 3.
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    The FIA expresses the belief that any Board decision that results 
in the imposition of an Operational Loss Fee

[[Page 55198]]

should be ``syndicated with'' Clearing Members and that any resulting 
feedback from Clearing Members should be ``presented to the Board 
before any decisions are taken.'' \37\ OCC responds by noting its 
strong belief that part of the viability of a plan to replenish capital 
is the speed with which that replenishment capital is accessible if 
needed and that, with respect to the Operational Loss Fee, relevant 
decisions related to imposing it would need to be made quickly, and as 
such they would not lend themselves to the additional step of 
consideration by Clearing Members before consideration by the 
Board.\38\ OCC also expresses its view that OCC's By-Laws and the 
composition of the Board itself,\39\ as well as a number of formal and 
informal mechanisms OCC has implemented to solicit Clearing Member and 
other interested stakeholder feedback,\40\ ensure that a view informed 
by the Clearing Membership is already built into the Board's 
deliberations and decision-making. Thus OCC states the Capital 
Management Policy as a whole has been constructed with the benefit of 
the perspective of the Clearing Member community, and that any future 
Board decisions related to the imposition of an Operational Loss Fee 
would likewise benefit from the perspective of the Clearing Member 
community.\41\ Further, the FIA expresses a concern that OCC's Board 
has a fiduciary duty to OCC, and by implication, not to Clearing 
Members that are not shareholders of OCC. In its response, OCC states 
that it has augmented its governance structure with a variety of formal 
and informal mechanisms to solicit Clearing Member and other interested 
stakeholder feedback.\42\
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    \37\ FIA Letter at 3.
    \38\ OCC Letter at 3.
    \39\ OCC Letter at 3 (stating that more than two-thirds of OCC's 
directors are either Clearing Member directors or public directors).
    \40\ OCC Letter at 4 (stating that such mechanisms include: (i) 
The Financial Risk Advisory Committee; (ii) the Operations 
Roundtable; (iii) multiple letters and open calls with Clearing 
Members and other interested stakeholders; and (iv) routine in-
person meetings with trade groups and individual firms).
    \41\ OCC Letter at 4.
    \42\ OCC Letter at 4.
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    The FIA notes that, as a general matter, it believes that non-
default losses should not be allocated to Clearing Members and that a 
CCP should absorb such losses through its capital,\43\ and therefore 
OCC should ``revisit its approach to non-default losses and ensure its 
own adequate capitalization to cover this.'' \44\ At the same time, the 
FIA acknowledges the time that would be required to raise resources 
through retained earnings.\45\ OCC disagrees with the FIA's comment 
regarding allocation of non-default losses to Clearing Members in the 
context of OCC's current proposal and notes that (i) it has increased 
its capital reserves approximately tenfold since December 31, 2013; 
(ii) the Operational Loss Fee would be part of OCC's plan to replenish 
its capital rather than a mechanism to raise funds to meet the Target 
Capital Requirement; and (iii) an accumulation of retained earnings 
would still source the funds from Clearing Members.\46\
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    \43\ FIA Letter at 3.
    \44\ FIA Letter at 3.
    \45\ FIA Letter at 2.
    \46\ OCC Letter at 2-3.
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    Finally, the FIA urges OCC to provide disclosures on any expenses 
or losses that could result in the Operational Loss Fee being charged, 
which the FIA asserts would assist Clearing Members in their own risk 
management.

V. Commission Findings and Notice of No Objection

    Although the Clearing Supervision Act does not specify a standard 
of review for an advance notice, the stated purpose of the Clearing 
Supervision Act is instructive: To mitigate systemic risk in the 
financial system and promote financial stability by, among other 
things, promoting uniform risk management standards for systemically 
important financial market utilities (``SIFMUs'') and strengthening the 
liquidity of SIFMUs.\47\
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    \47\ See 12 U.S.C. 5461(b).
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    Section 805(a)(2) of the Clearing Supervision Act \48\ authorizes 
the Commission to prescribe regulations containing risk-management 
standards for the payment, clearing, and settlement activities of 
designated clearing entities engaged in designated activities for which 
the Commission is the supervisory agency. Section 805(b) of the 
Clearing Supervision Act \49\ provides the following objectives and 
principles for the Commission's risk-management standards prescribed 
under Section 805(a):
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    \48\ 12 U.S.C. 5464(a)(2).
    \49\ 12 U.S.C. 5464(b).
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     To promote robust risk management;
     to promote safety and soundness;
     to reduce systemic risks; and
     to support the stability of the broader financial system.
    Section 805(c) provides, in addition, that the Commission's risk-
management standards may address such areas as risk-management and 
default policies and procedures, among other areas.\50\
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    \50\ 12 U.S.C. 5464(c).
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    The Commission has adopted risk-management standards under Section 
805(a)(2) of the Clearing Supervision Act and Section 17A of the 
Exchange Act (the ``Clearing Agency Rules'').\51\ The Clearing Agency 
Rules require, among other things, each covered clearing agency to 
establish, implement, maintain, and enforce written policies and 
procedures that are reasonably designed to meet certain minimum 
requirements for its operations and risk-management practices on an 
ongoing basis.\52\ As such, it is appropriate for the Commission to 
review advance notices against the Clearing Agency Rules and the 
objectives and principles of these risk management standards as 
described in Section 805(b) of the Clearing Supervision Act. As 
discussed below, the Commission believes the changes proposed in the 
Advance Notice are consistent with the objectives and principles 
described in Section 805(b) of the Clearing Supervision Act,\53\ and in 
the Clearing Agency Rules, in particular Rules 17Ad-22(e)(2) and 
(15).\54\
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    \51\ 17 CFR 240.17Ad-22. See Securities Exchange Act Release No. 
68080 (October 22, 2012), 77 FR 66220 (Nov. 2, 2012) (S7-08-11). See 
also Securities Exchange Act Release No. 78961 (September 28, 2016), 
81 Fed .Reg. 70786 (October 13, 2016) (S7-03-14) (``Covered Clearing 
Agency Standards''). The Commission established an effective date of 
December 12, 2016 and a compliance date of April 11, 2017 for the 
Covered Clearing Agency Standards. OCC is a ``covered clearing 
agency'' as defined in Rule 17Ad-22(a)(5).
    \52\ 17 CFR 240.17Ad-22.
    \53\ 12 U.S.C. 5464(b).
    \54\ 17 CFR 240.17Ad-22(e)(2) and 17 CFR 240.17Ad-22(e)(15).
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A. Consistency With Section 805(b) of the Clearing Supervision Act

    The Commission believes that the Advance Notice is consistent with 
the stated objectives and principles of Section 805(b) of the Clearing 
Supervision Act.\55\ The Commission

[[Page 55199]]

believes that the proposed rules regarding the determination of the 
Target Capital Requirement and monitoring of OCC's capital levels are 
consistent with the promotion of robust risk management because they 
are designed to ensure that OCC maintains the resources necessary to 
continue operations and services as a going concern in the event that 
OCC suffers general business losses. OCC's Target Capital Requirement 
would be designed to cover at least the Potential Loss Amount (i.e., 
the amount necessary for OCC to continue operations and services as a 
going concern if general business losses materialize). As such, OCC 
could be expected to rely on its LNAFBE to address general business 
losses, which would, by definition, be limited by Equity. Further, OCC 
proposes to monitor Equity levels, and take action where those levels 
fall below the Early Warning threshold. The Commission believes, 
therefore, that setting and monitoring the level of OCC's Equity above 
the amount of capital that OCC has determined is necessary to cover the 
risk of potential general business losses is consistent with robust 
risk management. Further, OCC proposes to charge losses remaining after 
the application of skin-in-the-game to OCC senior management as well as 
Clearing Members by, as discussed above, replenishing its capital first 
through the contribution of the EDCP Unvested Balance. The Commission 
believes that making senior management's resources available for 
default management would help align senior management's personal 
economic incentives with OCC's overall risk management incentives, 
thereby promoting robust risk management at OCC.
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    \55\ Three of the issues raised by the FIA's comments are made 
with reference to the Proposed Rule Change, and, to the extent they 
are relevant to the Commission's review and evaluation thereof, will 
be addressed in that context. Specifically, the FIA expresses the 
belief that (i) the proposed application of the Operational Loss Fee 
is inequitable; (ii) as a general matter, non-default losses should 
not be allocated to Clearing Members and that a CCP should absorb 
such losses through its capital; and (iii) OCC should provide 
disclosures on any expenses or losses that could result in the 
Operational Loss Fee being charged. The Commission's evaluation of 
the Advance Notice is conducted under the Clearing Supervision Act 
and, as noted above, generally considers whether the proposal will 
mitigate systemic risk and promote financial stability. The 
Commission notes that the FIA has not explained or demonstrated how 
the absence of either a return on fees or the incorporation of 
shareholders in OCC's capital management planning would cause the 
proposal to be inconsistent with the Clearing Supervision Act.
    LPL's and SIG's comments are also directed at the Proposed Rule 
Change and will be addressed in that context. LPL has not explained 
or demonstrated how the equal allocation of the Operational Loss Fee 
across Clearing Members would cause the proposal to be inconsistent 
with the Clearing Supervision Act. Similarly, SIG has not explained 
or demonstrated how a hypothetical future sale would cause the 
proposal to be inconsistent with the Clearing Supervision Act. 
Similarly, SIG has not explained or demonstrated how a hypothetical 
future sale would cause the proposal to be inconsistent with the 
Clearing Supervision Act.
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    The Commission believes that the proposed changes pertaining to 
capital monitoring and replenishment are consistent with the promotion 
of safety and soundness because such changes would be designed to 
monitor, maintain, and, if necessary, replenish the capital that OCC 
would rely on to remain a going concern. As described above, OCC would 
project future volume, expenses, cash flows, capital needs and other 
factors to help ensure adequate financial resources are available to 
meet general business obligations. OCC would also, on a monthly basis, 
review Equity against the Target Capital Requirement to determine 
whether an Early Warning or Trigger Event had occurred. In response to 
such monitoring, OCC would use fee-related tools (e.g., increases, 
decreases, refunds, or fee waivers) to manage OCC's capital as 
necessary on an ongoing basis. Further, OCC would apply the EDCP 
Unvested Balance and the Operational Loss Fee to replenish capital as 
necessary. The Commission believes that the proposed combination of 
capital monitoring, management, and replenishment tools is consistent 
with promoting safety and soundness because it would support OCC's 
ability to maintain the capital necessary to remain a going concern 
following the realization of general business losses. Further, the 
Commission believes that to the extent the proposed changes are 
consistent with promoting OCC's safety and soundness, they are also 
generally consistent with supporting the stability of the broader 
financial system. OCC has been designated as a SIFMU, in part, because 
its failure or disruption could increase the risk of significant 
liquidity or credit problems spreading among financial institutions or 
markets.\56\ The Commission believes that the proposed changes would 
help support the maintenance of OCC as a going concern, even in the 
face of significant general business losses, which in turn would help 
support the stability of the financial system by reducing the risk of 
significant liquidity or credit problems spreading among market 
participants that rely on OCC's central role in the options market.
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    \56\ See Financial Stability Oversight Council (``FSOC'') 2012 
Annual Report, Appendix A, https://www.treasury.gov/initiatives/fsoc/Documents/2012%20Annual%20Report.pdf (last visited Sep. 20, 
2019).
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    Finally, the Commission believes that the proposed changes to 
increase OCC's default management resources are consistent with the 
reduction of systemic risk because such increase enhances the ability 
of OCC to absorb and contain the spread of any losses that might arise 
from a member default. As discussed above, the resources held to meet 
OCC's Target Capital Requirement would be in addition to OCC's 
resources to cover participant defaults. Capital in excess of 110 
percent of the Target Capital Requirement, however, would be available 
as skin-in-the-game to offset default losses remaining after the 
application of a defaulted Clearing Member's margin deposits and 
Clearing Fund contributions. OCC does not propose to guaranty a set 
amount of pre-funded skin-in-the-game, but by providing for a mechanism 
by which OCC would identify such resources, the proposal could provide 
additional resources to absorb and contain the spread of losses arising 
from a participant default. Accordingly, and for the reasons stated 
above, the Commission believes the changes proposed in the Advance 
Notice are consistent with Section 805(b) of the Clearing Supervision 
Act.\57\
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    \57\ 12 U.S.C. 5464(b).
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A. Consistency With Rule 17Ad-22(e)(2) Under the Exchange Act

    Rule 17Ad-22(e)(2) under the Exchange Act generally requires that a 
covered clearing agency establish, implement, maintain, and enforce 
written policies and procedures reasonably designed to provide for 
governance arrangements that meet a number of criteria.\58\ In adopting 
Rule 17Ad-22(e)(2), the Commission discussed comments it received 
regarding incentives and the concept of skin-in-the-game.\59\ The 
Commission stated its belief that ``the proper alignment of incentives 
is an important element of a covered clearing agency's risk management 
practices,'' and noted that skin-in-the-game ``may place a role in 
those risk management practices in many instances, but in other 
instances may not be essential to a robust governance framework.'' \60\ 
Further, the Commission declined to include a specific skin-in-the-game 
requirement in Rule 17Ad-22(e), and expressed the belief that it is 
appropriate to provide covered clearing agencies with flexibility, 
subject to their obligations and responsibilities as SROs under the 
Exchange Act, to structure their default management processes to take 
into account the particulars of their financial resources, ownership 
structures, and risk management frameworks.\61\ As described above, the 
FIA suggests that OCC's proposal should have a minimum amount of skin-
in-the-game that is clearly defined, scalable, and prefunded. But the 
approach the FIA comment suggests is not provided for in the proposal 
submitted to the Commission, and, as noted above, the Commission's 
rules do not require such a skin-in-the-game approach. Nonetheless, the 
Commission believes OCC's inclusion of its specific proposed skin-in-
the-game component into its Capital Management Policy proposal is

[[Page 55200]]

consistent with the Clearing Supervision Act because, among other 
things, it promotes robust risk management, as discussed above.
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    \58\ 17 CFR 240.17Ad-22(e)(2).
    \59\ Covered Clearing Agency Standards, 81 FR at 70805-06.
    \60\ Covered Clearing Agency Standards, 81 FR at 70806.
    \61\ Id.
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    As described above, the FIA expresses the belief that any Board 
decision that results in the imposition of an Operational Loss Fee 
should be ``syndicated with'' Clearing Members and that any resulting 
feedback from Clearing Members should be ``presented to the Board 
before any decisions are taken.'' \62\ In response, OCC refers to the 
requirements of its By-Laws that result in more than two-thirds of 
OCC's directors being either Clearing Member directors or public 
directors).\63\ Further, OCC expresses its strong belief that part of 
the viability of a plan to replenish capital is the speed at which that 
replenishment capital is accessible. OCC's response is persuasive. Rule 
17Ad-22(e)(2)(iii) under the Exchange Act requires that a covered 
clearing agency establish, implement, maintain, and enforce written 
policies and procedures reasonably designed to provide for governance 
arrangements that support the public interest requirements of Section 
17A of the Exchange Act applicable to clearing agencies, and the 
objectives of owners and participants.\64\ In adopting Rule 17Ad-
22(e)(2), the Commission added paragraph (vi) in response to comments 
regarding the scope of Rule 17Ad-22(e)(2)(iii).\65\ Paragraph (vi) of 
Rule 17Ad-22(e)(2) specifically addresses the consideration of the 
interests of participants' customers, securities issuers and holders, 
and other relevant stakeholders of the covered clearing agency.\66\ In 
adopting Rule 17Ad-22(e)(2), the Commission noted that the inclusion of 
independent directors on a clearing agency's board may be one mechanism 
for helping to ensure that the relevant views of stakeholders are 
presented and considered.\67\ In the context of default management, the 
Commission has acknowledged that risk exposures can change rapidly 
during periods of market stress.\68\ Similarly, the Commission believes 
that the general business risk exposures, and related losses, may 
change rapidly during periods of stress, and, in turn, that there is a 
benefit to a covered clearing agency's ability to respond to such 
changes in a timely fashion.
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    \62\ FIA Letter at 3.
    \63\ OCC Letter at 3.
    \64\ 17 CFR 240.17Ad-22(e)(2)(iii).
    \65\ Covered Clearing Agency Standards, 81 FR at 70803.
    \66\ 17 CFR 240.17Ad-22(e)(2)(vi).
    \67\ Covered Clearing Agency Standards, 81 FR at 70803.
    \68\ Covered Clearing Agency Standards, 81 FR at 70806.
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    Further, as described above, the FIA expresses a concern that OCC's 
Board has a fiduciary duty to OCC, and by implication, not to Clearing 
Members; however, OCC's response describes the formal and informal 
mechanisms that OCC employs to solicit feedback from Clearing Members 
and other interested stakeholders, and this response is persuasive. In 
adopting Rule 17Ad-22(e)(2), the Commission noted that the approach a 
covered clearing agency may take in considering the views of 
stakeholders could vary depending on the ownership structure or 
organizational form of the covered clearing agency.\69\ The Commission 
believes that the governance arrangements proposed by OCC in connection 
with the Advance Notice and discussed above are consistent with the 
consideration of the interests of OCC's participants and are consistent 
with Rule 17Ad-22(e)(2).
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    \69\ Covered Clearing Agency Standards, 81 FR at 70803.
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    Accordingly, and for the reasons stated above, the Commission 
believes the changes proposed in the Advance Notice are consistent with 
Rule 17Ad-22(e)(2) under the Exchange Act.\70\
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    \70\ 17 CFR 240.17Ad-22(e)(2).
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B. Consistency With Rule 17Ad-22(e)(15) Under the Exchange Act

    Rule 17Ad-22(e)(15) under the Exchange Act requires that a covered 
clearing agency establish, implement, maintain, and enforce written 
policies and procedures reasonably designed to identify, monitor, and 
manage the covered clearing agency's general business risk and hold 
sufficient liquid net assets funded by equity to cover potential 
general business losses so that the covered clearing agency can 
continue operations and services as a going concern if those losses 
materialize, including by taking the actions described in Rules 17Ad-
22(e)(15)(i)-(iii) under the Exchange Act.\71\ Rule 17Ad-22(e)(15)(i) 
under the Exchange Act requires that the policies and procedures 
described under Rule 17Ad-22(e)(15) include determining the amount of 
liquid net assets funded by equity based upon a covered clearing 
agency's general business risk profile and the length of time required 
to achieve a recovery or orderly wind-down, as appropriate, of its 
critical operations and services if such action is taken.\72\
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    \71\ 17 CFR 240.17Ad-22(e)(15).
    \72\ 17 CFR 240.17Ad-22(e)(15)(i).
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    As described above, OCC proposes to adopt rules governing OCC's 
process for determining the amount of Equity required to support the 
LNAFBE necessary to cover potential general business losses. The 
proposal is designed to identify and maintain the resources necessary 
for OCC to recover or wind-down its critical operations or services as 
well as to remain a going concern following the realization of losses 
due to general business risk. The proposal would also allow for the 
inclusion of Board-approved capital expenditures in setting OCC's 
Target Capital Requirement. The Commission believes, therefore, that 
the proposal is consistent with Rule 17Ad-22(e)(15)(i).\73\
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    \73\ Id.
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    Rule 17Ad-22(e)(15)(ii) under the Exchange Act requires that the 
policies and procedures described under Rule 17Ad-22(e)(15) include 
holding liquid net assets funded by equity equal to the greater of 
either (i) six months of the covered clearing agency's current 
operating expenses, or (ii) the amount determined by the board of 
directors to be sufficient to ensure a recovery or orderly wind-down of 
critical operations and services of the covered clearing agency, as 
contemplated by the plans established under Rule 17Ad-22(e)(3)(ii), and 
which shall be in addition to resources held to cover participant 
defaults or other risks covered under applicable credit risk and the 
liquidity risk standards, and shall be of high quality and sufficiently 
liquid to allow the covered clearing agency to meet its current and 
projected operating expenses under a range of scenarios, including in 
adverse market conditions.\74\
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    \74\ 17 CFR 240.17Ad-22(e)(15)(ii).
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    As described above, OCC proposes to adopt rules that would require 
it to hold at least the minimum amount of Equity necessary to meet the 
Target Capital Requirement. In turn, OCC proposes to set its Target 
Capital Requirement at a level at least sufficient to comply with Rule 
17Ad-22(e)(15)(ii) under the Exchange Act. Specifically, the Target 
Capital Requirement would, at a minimum, be at least equal to the 
greater of: (i) The amount equal to six-months of OCC's current 
operating expenses; (ii) the RWD Amount; or (iii) the Potential Loss 
Amount. Thus, OCC's Target Capital Requirement would equal or exceed 
the amount determined by OCC to correspond to the amounts described in 
Rule 17Ad-22(e)(15)(ii). Moreover, OCC would be required to set the 
Target Capital Requirement at a level equal to or greater than a 
sufficient

[[Page 55201]]

amount of ``liquid net assets funded by equity'' as such term is used 
in the Rule because the Capital Management Policy provides that OCC 
must set the Target Capital Requirement at a level sufficient to 
maintain LNAFBE equal to the amounts described above and LNAFBE, in 
turn, must be supported by the overall amount of Equity that OCC holds.
    Further, OCC proposes to require OCC Management to notify OCC's 
Board promptly if Equity were to fall below the Early Warning threshold 
and to recommend to the Board whether to implement a fee increase in an 
amount that the Board determines necessary and appropriate to raise 
additional Equity. The requirement to notify the Board, and recommend 
appropriate action, would help to ensure that OCC continues to hold 
sufficient resources to meet the Target Capital Requirement. The 
Commission believes, therefore, that the proposal would be designed to 
ensure that OCC holds Equity sufficient to support the amount of LNAFBE 
equal to the Target Capital Requirement, which requirement would 
correspond to the amounts specified under Rule 17Ad-22(e)(15)(ii).
    The Commission also believes that the proposed rules concerning the 
form of OCC's LNAFBE and manner in which it would be held are 
consistent with the requirements of Rule 17Ad-22(e)(15)(ii). OCC 
proposes to define LNAFBE such that it would consist of only cash and 
cash equivalents. OCC's LNAFBE must, therefore, be liquid by 
definition. Further, OCC proposes to adopt rules requiring that OCC 
hold Equity equal to 110 percent of the Target Capital Requirement 
separate from OCC's resources to cover participant defaults.
    Rule 17Ad-22(e)(15)(iii) under the Exchange Act requires that the 
policies and procedures described under Rule 17Ad-22(e)(15) include 
maintaining a viable plan, approved by the board of directors and 
updated at least annually, for raising additional equity should a 
covered clearing agency's equity fall close to or below the amount 
required under Rule 17Ad-22(e)(15)(ii).\75\
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    \75\ 17 CFR 240.17Ad-22(e)(15)(iii).
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    As described above, the proposed Replenishment Plan would govern 
OCC's process for replenishing its capital in the event that Equity 
were to fall close to or below the Target Capital Requirement. The 
proposed Replenishment Plan would require OCC's Management to monitor 
changes in Equity and to notify OCC's Board of a Trigger Event. Under 
the proposed Replenishment Plan, OCC would be required, in response to 
a Trigger Event, to replenish its capital first through the 
contribution of the EDCP Unvested Balance. If OCC were to determine 
that further replenishment were necessary following the contribution of 
the entire EDCP Unvested Balance, OCC would be required to charge the 
Operational Loss Fee described above. Under the proposal, OCC's 
Management would be obligated to recommend that the Board approve or, 
as appropriate, modify the proposed Replenishment Plan annually. In 
turn, OCC's Board would be obligated to approve or, as appropriate, 
modify the proposed Replenishment Plan annually based on Management's 
recommendation. The Commission believes, therefore, that adoption of 
these aspects of the proposed Capital Management Policy and supporting 
rule changes are consistent with Exchange Act Rule 17Ad-22(e)(15).\76\
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    \76\ 17 CFR 240.17Ad-22(e)(15).
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VI. Conclusion

    It is therefore noticed, pursuant to Section 806(e)(1)(I) of the 
Clearing Supervision Act, that the Commission does not object to 
Advance Notice (SR-OCC-2019-805) and that OCC is authorized to 
implement the proposed change as of the date of this notice or the date 
of an order by the Commission approving proposed rule change SR-OCC-
2019-007, as modified by Partial Amendment No. 1, whichever is later.

    By the Commission.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2019-22392 Filed 10-11-19; 8:45 am]
BILLING CODE 8011-01-P


