[Federal Register Volume 87, Number 8 (Wednesday, January 12, 2022)]
[Notices]
[Pages 1819-1825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00378]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93916; File No. SR-OCC-2021-014]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Notice of Filing of Proposed Rule Change Concerning the Options 
Clearing Corporation's Cash and Investment Management

January 6, 2022.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'' or ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice 
is hereby given that on December 23, 2021, the Options Clearing 
Corporation (``OCC'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III below, which Items have been prepared by OCC. The Commission is 
publishing this notice to solicit comments on the proposed rule change 
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    This proposed rule change would (1) formalize OCC's policy for 
safeguarding cash and related investments and (2) amend OCC's Rules 
governing use of the Clearing Fund in the event of the failure of a 
bank to meet a settlement obligation with OCC to ensure such access 
extends to the failure of an investment counterparty with whom OCC has 
invested cash deposited by Clearing Members in respect of margin or 
Clearing Fund requirements under the conditions identified in OCC Rule 
1006(c) and (f), regardless of whether the investment counterparty is a 
bank. The Cash and Investment Management Policy is included in 
confidential Exhibit 5a of File Number SR-OCC-2021-014. Proposed 
amendments to OCC's Rules are included in Exhibit 5b of File Number SR-
OCC-2021-014. All terms with initial capitalization that are not 
otherwise defined herein have the same meaning as set forth in the OCC 
By-Laws and Rules.\3\
---------------------------------------------------------------------------

    \3\ OCC's By-Laws and Rules can be found on OCC's website: 
https://www.theocc.com/Company-Information/Documents-and-Archives/By-Laws-and-Rules.
---------------------------------------------------------------------------

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

    In its filing with the Commission, OCC included statements 
concerning the purpose of and basis for the

[[Page 1820]]

proposed rule change and discussed any comments it received on the 
proposed rule change. The text of these statements may be examined at 
the places specified in Item IV below. OCC has prepared summaries, set 
forth in sections (A), (B), and (C) below, of the most significant 
aspects of these statements.

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

(1) Purpose
    OCC is proposing to enhance its cash and investment management 
practices by: (1) Formalizing OCC's policy for safeguarding cash and 
related investments, and (2) amending OCC's Rules to ensure access to 
the Clearing Fund if a non-bank investment counterparty fails to return 
Clearing Member cash deposited in respect of margin or Clearing Fund 
requirements under the conditions identified in OCC Rule 1006(c) and 
(f).
Background
    OCC's By-Laws and Rules govern the management and investment of 
OCC's own funds and cash deposited by Clearing Members. With respect to 
OCC's own funds (other than Clearing Fund deposits), Article IX, 
Section 1 of OCC's By-Laws provides that funds in excess of the amount 
needed as working capital may be invested by the Board in Government 
securities or such other securities or financial instruments as the 
Board or a Board-level committee may from time to time approve.\4\ With 
respect to cash deposited by Clearing Members, OCC Rules 604(a) and 
1002(c) provide that cash deposited in respect of a Clearing Member's 
margin requirements or Clearing Fund contributions may from time to 
time be partially or wholly invested by OCC for its account in 
Government securities.\5\ OCC does not propose to amend these By-Laws 
or Rules by this proposed rule change.
---------------------------------------------------------------------------

    \4\ See By-Law Art. IX, Sec. 1.
    \5\ See OCC Rule 604(a); Rule 1006(c).
---------------------------------------------------------------------------

    OCC's investments historically have been limited to overnight 
transactions under deliver-versus-payment (``DVP'') reverse repurchase 
agreements. As collateral, the investment counterparty deliveries 
Government securities equal to 102% of the cash invested at the time 
the investment is made. Such investments reduce OCC's investment risks 
by permitting quick liquidation with little adverse price effect and 
controlling the movement of OCC's assets via a custodian bank. To 
minimize counterparty risk, OCC restricts its potential counterparties 
to financial institutions that meet certain standards of size, capital 
adequacy, product offering and operational capacity.
    In the event of a failure or disruption of an investment 
counterparty that is a bank, OCC's Rules provide OCC with authority to 
access the Clearing Fund to address liquidity shortfalls, including 
shortfalls arising from the investment of Clearing Member cash in 
Government securities. Specifically, OCC Rule 1006(f) authorizes OCC to 
take possession of cash or securities deposited by Clearing Members in 
respect of the Clearing Fund when OCC reasonably believes it necessary 
to meet its liquidity needs for same-day settlement as a result of the 
failure of any bank to achieve daily settlement with OCC.\6\ In the 
extremely unlikely event that a bank investment counterparty failed to 
return the cash versus return of the Government securities to unwind a 
transaction under a reverse repurchase agreement--e.g., because of a 
systems disruption, operational outage, or otherwise--OCC could 
exercise authority under Rule 1006(f) to borrow from the Clearing Fund 
to the extent required for OCC to meet its settlement obligations with 
Clearing Members.\7\
---------------------------------------------------------------------------

    \6\ See OCC Rule 1006(f). As discussed, infra, this proposed 
rule change would amend this clause to apply when OCC reasonably 
believes it necessary to meet its liquidity needs for ``daily 
settlement'' as a result of the failure of any bank ``to perform any 
obligation to the Corporation when due.''
    \7\ OCC amended its Rules in 2018 to extend access to the 
Clearing Fund in the extraordinary event that OCC faces a liquidity 
need in order to complete same-day settlement for reasons other than 
a bank or clearing organization's bankruptcy, insolvency, 
receivership, suspension of operations, or any similar event. See 
Securities Exchange Act (``Exchange Act'') Release No. 82309 (Dec. 
13, 2017), 82 FR 60262 (Dec. 19, 2017) (File No. SR-OCC-2017-017).
---------------------------------------------------------------------------

    In the unlikely event that any part of the borrowing under Rule 
1006(f) is outstanding after 30 calendar days, or if OCC determines 
that some or all of the amount borrowed constituted an actual loss, OCC 
would charge the loss to the Clearing Fund.\8\ In the unlikely event 
that OCC incurred an investment loss resulting from a bank's failure to 
return the invested cash because of bankruptcy, insolvency, 
receivership, suspension of operations or other similar event, OCC may, 
at its discretion, charge the loss to the Clearing Fund.\9\ OCC may 
also, at its discretion, apply skin-in-the-game to a loss resulting 
from a borrowing or bank failure in the form of liquid net assets 
funded by equity \10\ in excess of 110% of OCC's Target Capital 
Requirement.\11\
---------------------------------------------------------------------------

    \8\ See OCC Rule 1006(c)(ii).
    \9\ See OCC Rule 1006(c)(i).
    \10\ OCC's Capital Management Policy defines ``liquid net assets 
funded by equity'' to be the level of cash or cash equivalents, no 
greater than OCC's shareholders' equity, less any approved 
adjustments (e.g., agency-related liabilities such as Section 31 
fees held by OCC and the Minimum Corporate Contribution). See 
Exchange Act Release No. 91199 (Feb. 24, 2021), 86 FR 12237, 12241 
(Mar. 2, 2021) (File No. SR-OCC-2021-003).
    \11\ See OCC Rule 1006(e)(ii).
---------------------------------------------------------------------------

Proposed Changes
Cash and Investment Management Policy
    OCC proposes to file its Cash and Investment Management Policy (or 
``Policy'') as a proposed rule of the clearing agency within the 
meaning of Section 19(b)(1) of the Exchange Act \12\ and SEC Rule 19b-
4.\13\ The Policy would include statements of purpose, applicability 
and scope, safeguarding standards for maintaining cash and related 
investments to minimize credit and liquidity risk, and guidelines for 
investing OCC Cash and Clearing Member Cash, as defined below.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(1).
    \13\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

Purpose, Applicability and Scope
    The Policy would include statements of the Policy's purpose, 
applicability, and scope. The purpose of the Policy would be to (1) 
outline the safeguarding standards for cash and related investments 
managed by OCC to minimize credit and liquidity risk, and (2) provide 
guidelines for investments permitted by OCC's By-Laws and Rules. The 
Policy principally would apply to OCC's Treasury department 
(``Treasury''), which has responsibility for managing cash on behalf of 
OCC. The Policy's scope would include the safeguarding standards and 
investment activities specific to OCC's own cash (``OCC Cash'') and 
cash from OCC's Clearing Members (``Clearing Member Cash'').
    The Policy would define OCC Cash to include working capital related 
to future operating costs, inclusive of financial resource held to meet 
liquidity and resiliency requirements,\14\ proceeds from lines of 
credit, if any, maintained to support OCC's working capital,\15\ the

[[Page 1821]]

Minimum Corporate Contribution,\16\ and investments made with OCC Cash. 
The Policy would not apply to cash held in respect of OCC's pension 
plan, post-retirement welfare plan, or other deferred compensation 
plans. The Policy would define Clearing Member Cash to include Clearing 
Fund cash deposits; cash deposited by Clearing Members in respect of 
margin requirements; cash held in liquidating settlement accounts for 
suspended Clearing Members,\17\ proceeds from OCC's syndicated credit 
facility and liquidity facilities,\18\ and investments made with 
Clearing Member Cash.\19\ The Policy would not apply to non-cash 
collateral deposited by Clearing Members to satisfy margin or Clearing 
Fund requirements.
---------------------------------------------------------------------------

    \14\ See Exchange Act Release No. 88029 (Jan. 24, 2020), 85 FR 
5500, 5501-02 (Jan. 30, 2020) (File No. SR-OCC-2019-007) (discussing 
the determination of Target Capital Requirement under OCC's Capital 
Management Policy).
    \15\ Working capital lines of credit, if any, are separate from 
the syndicated credit facility and liquidity facilities that OCC 
maintains to cover default losses or liquidity shortfalls. See 
Exchange Act Release No. 88971 (May 28, 2020), 85 FR 34257 (June 3, 
2020) (File No. SR-OCC-2020-804) (discussing OCC's revolving credit 
facility); Exchange Act Release No. 89039 (June 10, 2020), 85 FR 
36444 (June 16, 2020) (File No. SR-OCC-2020-803) (discussing OCC's 
non-bank liquidity facility).
    \16\ See Exchange Act Release No. 92038 (May 27, 2021), 86 FR 
29861 (Jun. 3, 2021) (File No. SR-OCC-2021-003) (establishing a 
persistent minimum level of OCC's own capital that it would 
contribute to default losses or liquidity shortfalls prior to 
allocating a default loss to the Clearing Fund contributions of non-
defaulting Clearing Members).
    \17\ See OCC Rule 1104.
    \18\ See supra note 17 (citing SEC notices of no-objection to 
advance notices concerning OCC's credit and liquidity facilities).
    \19\ See supra note 7 and accompanying text.
---------------------------------------------------------------------------

Safeguarding Standards
    The Policy would address the safeguarding standards for managing 
OCC Cash and Clearing Member Cash, which OCC would either hold in a 
demand deposit or Federal Reserve Bank accounts or invest in accordance 
with OCC's By-Laws and investment strategy, as discussed below.
OCC Cash
    Unless invested, OCC Cash would be held in demand deposit accounts 
or at a Federal Reserve Bank. Demand deposit accounts would be limited 
to commercial financial institutions that meet initial and ongoing 
standards for depository banks outlined in OCC's procedures concerning 
its banking relationships.
    Treasury would be responsible for maintaining appropriate levels of 
liquidity in OCC's operating accounts to meet general business 
obligations and regulatory requirements. To fulfill this 
responsibility, the Policy would provide that OCC may maintain bank 
lines of credit for working capital purposes. The source of such credit 
line would need to meet the standards for credit facility banks 
outlined in OCC's procedures concerning its banking relationships.
Clearing Member Cash
    The Policy would provide that unless invested, Clearing Member Cash 
would be held in a demand deposit account or in accounts at a Federal 
Reserve Bank. With respect to commercial banks, Clearing Member Cash 
would only be held in financial institutions that meet the initial and 
ongoing standards for depository banks as provided in in OCC's 
procedures concerning banking relationships. The Policy would provide 
that Clearing Member Cash collected at OCC's settlement banks may be 
transferred to other depository banks, including to and from OCC's bank 
accounts for settlement, investment, and cash management purposes. Upon 
the suspension of a Clearing Member, OCC would promptly move all margin 
and Clearing Fund cash related to the Clearing Member into a 
liquidating settlement account for use in meeting the obligations of 
the Clearing Member, as provided under OCC's Rules.\20\ Treasury would 
be responsible for ensuring accounts are appropriately funded to meet 
financial obligations. Interest earned on Clearing Fund cash deposits 
held at a Federal Reserve Bank would accrue to the benefit of Clearing 
Members, less a cash management fee.
---------------------------------------------------------------------------

    \20\ See OCC Rule 1104.
---------------------------------------------------------------------------

    The Policy would also provide that OCC would employ a bank account 
structure that segregates customer funds per applicable regulatory 
requirements \21\ and OCC's By-Laws and Rules.\22\ Futures customer 
segregated cash would be held in segregated fund accounts pursuant to 
applicable Commodity and Futures Trading Commission (``CFTC'') 
regulations, including that OCC ensures that it receives proper written 
acknowledgment from the depository for each new segregated funds 
account that the account has been established to hold segregated cash 
generated from futures customers.\23\ The Policy would further provide 
that if OCC sustains an investment loss with respect to invested margin 
cash OCC will not pass on the loss to a futures customer segregated 
account.
---------------------------------------------------------------------------

    \21\ See 17 CFR 39.15 (requiring a derivatives clearing 
organization to comply with the segregation requirements section 4d 
of the Commodity Exchange Act).
    \22\ See OCC By-Laws Art. VI, Sec. 3(f) (providing for 
maintenance of segregated futures accounts).
    \23\ See 17 CFR 1.20(g)(4).
---------------------------------------------------------------------------

Investment Guidelines
    The Policy would also provide guidelines for investments permitted 
by OCC's By-Laws and Rules and approved by the Board or Compensation 
and Performance Committee (``CPC''), including OCC's investment 
strategy, investment governance principles, and guidelines for the 
investment of OCC Cash and Clearing Member Cash.
Investment Strategy
    The Policy would provide that OCC's investment strategy is to 
preserve principal and maintain adequate liquidity. After principal and 
liquidity requirements are satisfied, only then would Management seek 
to optimize investment returns. OCC would disclose its investment 
strategy through its public website on a periodic basis via its 
qualitative disclosures to the Principles for Financial Market 
Infrastructure Disclosures.\24\
---------------------------------------------------------------------------

    \24\ See Disclosure Framework, available at https://www.theocc.com/Risk-Management/PFMI-Disclosures.
---------------------------------------------------------------------------

Investment Governance Principles
    The Policy would provide that OCC may invest OCC Cash and Clearing 
Member Cash in permitted investments per applicable regulatory 
requirements, OCC's By-Laws and Rules, the investment strategy and the 
following governance principles. Current investment practices would be 
outlined in procedures maintained by OCC. Investment counterparties 
would need to be financial institutions or financial market utilities 
that meet initial and on-going standards outlined in OCC's procedures 
concerning its banking relationships, which consider the financial 
institution's size, capital adequacy, product offering and operational 
capabilities. Any interest or gain received on the investments would 
belong to OCC except as may otherwise be provided in OCC's By-Laws, 
Rules or Board-approved policies.\25\ OCC would not commingle 
investments of OCC Cash with investments of Clearing Member Cash.
---------------------------------------------------------------------------

    \25\ As discussed, interest earned on Clearing Fund cash 
deposits held at a Federal Reserve Bank would accrue to the benefit 
of Clearing Members, less a cash management fee.
---------------------------------------------------------------------------

Investment of OCC Cash
    The Policy would provide that OCC Cash may be invested in 
instruments that pose minimal credit and liquidity risk pursuant to 
applicable regulatory requirements, OCC's By-Laws, the investment 
strategy, and Board or CPC approved investments. Approved investments 
other than in Government securities would continue to be subject to 
Board or CPC approval, as required under Section 1 of Article IX of 
OCC's By-Laws.\26\ In addition, investment of

[[Page 1822]]

working capital in excess of 110% of OCC's Target Capital Requirement 
would not be limited to overnight transactions.\27\
---------------------------------------------------------------------------

    \26\ In addition to investments in Government securities through 
overnight DVP transactions, the Board has approved investments of 
OCC's own cash in U.S. government money market mutual funds.
    \27\ With respect to OCC's liquid net assets funded by equity in 
excess of 110% of the Target Capital Requirement, the Board has 
initially approved investment of such funds in Government securities 
through DVP transactions for terms no more than 30 days.
---------------------------------------------------------------------------

Investment of Clearing Member Cash
    The Policy would further provide that Clearing Member Cash may be 
invested in Government securities by OCC in transactions that provide 
next-day liquidity in accordance with applicable regulatory 
requirements, OCC's Rules, and the investment strategy, subject to the 
following guiding principles. First, the Policy would provide that 
notwithstanding the authority to invest Clearing Fund cash under OCC 
Rule 1002(c), it is OCC's policy not to invest Clearing Fund cash, 
which is instead maintained in accounts at a Federal Reserve Bank or a 
commercial bank. This policy would be subject to an exception approved 
by the Chief Executive Officer or Chief Operating Officer in emergency 
situations (such as a disruption at a Federal Reserve Bank) when 
necessary or advisable for the protection of the Corporation or 
otherwise in the public interest to continue to facilitate the prompt 
and accurate clearance and settlement of confirmed trades or other 
transactions and to provide OCC's services in a safe and sound manner. 
Second, the Policy would provide that margin cash would only be 
invested in instruments that provide liquidity to OCC by the following 
business day. Third, the Policy would provide that OCC will implement 
procedures to ensure that end-of-day margin cash balances remain above 
the aggregate level of any Required Cash Deposits, as that term is 
defined in OCC's Liquidity Risk Management Framework.\28\ The policy 
with respect to investing Required Cash Deposits would be subject to 
the same exception as for investment of Clearing Fund cash. Fourth, any 
change regarding whether to investment futures customer segregated 
funds would be approved by OCC's Chief Financial Officer in 
consultation with OCC's Legal and Compliance departments.\29\
---------------------------------------------------------------------------

    \28\ The Liquidity Risk Management Framework defines ``Required 
Cash Deposits'' (sometimes referred to as minimum cash requirements 
or ``MCR'') as deposits of cash under OCC's Contingency Funding Plan 
that supplement OCC's Base Liquidity Resources (i.e., the amount of 
committed liquidity resources maintained at all times by OCC to meet 
its minimum Cover 1 liquidity resource requirements under the 
applicable regulations). Under that framework, OCC may require a 
Clearing Member Group to post such additional cash collateral to 
supplement OCC's Available Liquidity Resources (i.e., Base Liquidity 
Resources plus allowed Clearing Fund cash deposits in excess of the 
minimum required amount) when stressed liquidity demands for that 
Clearing Member Group are above established thresholds or until the 
settlement demand is met. See Exchange Act Release No. 89014 (June 
4, 2020), 85 FR 35446, 35449 (June 10, 2020) (File No. SR-OCC-2020-
003).
    \29\ Like Clearing Fund cash, OCC does not currently invest 
futures customer segregated funds. If OCC determined to invest such 
funds, such investments would be subject to CFTC regulations 
regarding a derivatives clearing organization's investment of 
futures customer funds. See 17 CFR 1.25.
---------------------------------------------------------------------------

    The Policy would also describe how OCC maintains liquidity 
facilities for immediate access to liquidity in the event of a 
suspension of a Clearing Member or a failure of a bank, securities or 
commodity clearing organization, or investment counterparty (with 
respect to the investment of Clearing Member Cash) to meet an 
obligation owing to OCC, or in anticipation thereof, pursuant to OCC 
Rules 1006(c) and (f), proposed amendments to which are discussed 
below. The liquidity providers for these facilities would be approved 
and monitored according to the OCC's Third-Party Risk Management 
Framework and Liquidity Risk Management Framework.\30\
---------------------------------------------------------------------------

    \30\ See Exchange Act Release No. 90797 (Dec. 23, 2020), 85 FR 
86592 (Dec. 30, 2020) (File No. SR-OCC-2020-014) (approving OCC's 
framework for identifying, measuring, monitoring, and managing OCC's 
exposures to its counterparties); Exchange Act Release No. 89014, 85 
FR 35446 (approving OCC's approach to managing liquidity risk).
---------------------------------------------------------------------------

Amendments to OCC Rule 1006
    OCC proposes to amend OCC Rule 1006, which governs its ability to 
access the Clearing Fund in the event of the failure (or anticipated 
failure) of bank to meet a settlement obligation with OCC, to extend 
such access to the failure of a non-bank investment counterparty to 
meet settlement obligations with OCC under the conditions identified in 
OCC Rule 1006(c) and (f). In addition, OCC proposes to restate OCC Rule 
1006(f) for clarity.
    To ensure that OCC may access the Clearing Fund in the event of a 
failure or disruption of a non-bank counterparty with whom OCC has 
invested Clearing Member Cash, OCC would amend OCC Rule 1006(f) to 
include ``investment counterparty'' to the list of counterparties--
currently, any bank or securities or commodities clearing 
organization--whose failure or disruption may result in a borrowing 
under Rule 1006(f). Similarly, OCC would also amend OCC Rule 1006(a) 
and (c) to add the same phrase to the list of counterparties whose 
failure resulting from bankruptcy, insolvency, receivership, suspension 
of operations, or any similar event may result in allocation of losses 
to the Clearing Fund. Rule 1006(c) and (f) would be further amended to 
provide that failure of an investment counterparty under those 
paragraphs would be limited to a failure with respect to Clearing 
Member Cash (i.e., cash invested under Rule 604(a) or Rule 
1002(c)).\31\ Any investment loss resulting from investment of OCC Cash 
would be treated as an operational loss that would be addressed under 
OCC's Capital Management Policy, rather than a loss that would be 
allocated to the Clearing Fund.\32\
---------------------------------------------------------------------------

    \31\ The same limitation would apply to Rule 1006(a), which 
incorporates the reasons specified in Rule 1006(c) by reference.
    \32\ See Exchange Act Release No. 88029, 85 FR at 5502-03 
(discussing OCC's plan for replenishing its capital in the event 
that shareholders' equity falls below certain thresholds).
---------------------------------------------------------------------------

    OCC would also amend the condition that triggers borrowing 
authority under Rule 1006(f)--currently clause (iii) of the first 
sentence of Rule 1006(f)--which would be renumbered as Rule 
1006(f)(1)(C). That condition would be amended to apply when the 
Corporation reasonably believes it necessary to borrow to meet its 
liquidity needs for ``daily settlement'' rather than ``same-day 
settlement,'' as in the current text. OCC may reasonably believe that a 
disruption at a bank, securities or commodities clearing organization, 
or investment counterparty could last multiple days, resulting in 
liquidity needs for daily settlement over more than one day. This 
amendment would ensure that OCC has authority to initiate a borrowing 
for the amount OCC believes necessary to meet its liquidity needs over 
the timeframe OCC believes the disruption will affect OCC's ability to 
meet daily settlement requirements with Clearing Members, rather than 
only that amount that OCC believes it needs on a day-by-day basis.
    OCC would further amend the condition in Rule 1006(f)(1)(C) to 
apply when OCC reasonably believes such a liquidity need will arise 
because of one of the identified counterparty's failure ``to perform 
any obligation to the Corporation when due,'' rather than such a 
counterparty's failure ``to achieve daily settlement.'' This change 
aligns with the condition for allocation of losses under Rule 1006(c) 
and eliminates any ambiguity that might arise concerning the settlement 
obligations to which the current Rule refers. As under the current 
Rule, use of funds obtained through such a

[[Page 1823]]

borrowing would continue to be limited to the purposes described in 
Rule 1006(f)(1)(C), as amended, i.e., to meet OCC's liquidity needs for 
daily settlement with Clearing Members.
    In addition to the substantive changes discussed above, OCC would 
also restate Rule 1006(f) for clarity. The current paragraph would be 
divided into four subparagraphs with courtesy headings: (1) Conditions; 
(2) Uses; (3) Term; Clearing Fund Charge; and (4) Substitution 
Requests. The conditions in Rule 1006(f)(1) would begin with the first 
sentence of current Rule 1006(f), less the conjoined clause beginning 
with ``and use such assets,'' the substance of which would be moved to 
paragraph (f)(2). The remaining clause before the conjunction would be 
amended to describe OCC's investment of Clearing Fund cash 
contributions in the active voice. The three conditions for a borrowing 
identified in Rule 1006(f), currently numbered (i) through (iii), would 
then follow after the conjunction as items (A) through (C). Item (A) 
would be further amended to remove legalese and state the condition 
more plainly. Item (C) would be amended substantively as discussed 
above.
    The prescribed uses for the borrowed funds described in several 
places throughout current Rule 1006(f) would be aggregated in Rule 
1006(f)(2). As currently found in the conjoined clause in the first 
sentence of current Rule 1006(f), Rule 1006(f)(2)(A) would provide that 
OCC may use funds it takes possession of under Rule 1006(f) to (i) meet 
obligations, losses or liquidity needs; or (ii) borrow or otherwise 
obtain funds through any means determined to be reasonable at the 
discretion of the Chairman, Chief Executive Officer or the Chief 
Operating Officer (including, without limitation, pledging such assets 
as security for loans and/or using such assets to effect repurchase, 
securities lending or other transactions). Proposed Rule 1006(f)(ii) 
would also be restated to remove a gendered pronoun. Rule 1006(f)(2)(B) 
would describe the limitations on use of funds borrowed under the 
renumbered conditions in Rule 1006(f)(1)(A) and (C).
    Rule 1006(f)(3) would contain the term for a borrowing, as well as 
the conditions that would trigger a loss chargeable to the Clearing 
Fund. The 30-day period before which OCC would be obligated to charge a 
borrowed amount as a loss to the Clearing Fund would be located at Rule 
1006(f)(3)(A), with certain non-substantive edits to the text. The 
conditions that would trigger the loss allocation to the Clearing Fund 
would be located at Rule 1006(f)(3)(B) and would be restated to move 
the lengthy conditions after the main clause, among other non-
substantive revisions.
    Finally, Rule 1006(f)(4) would relocate OCC's authority to refuse 
Clearing Member substitution requests regarding securities contributed 
to the Clearing Fund that the Corporation has taken possession of under 
Rule 1006(f). In addition to relocating that provision to the end of 
Rule 1006(f), this proposed rule change would restate that provision to 
reflect the reorganization of Rule 1006(f).
(2) Statutory Basis
    Section 17A(b)(3)(F) of the Exchange Ac,\33\ requires, among other 
things, that the rules of a clearing agency be designed to promote the 
prompt and accurate clearance and settlement of securities 
transactions, 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, to perfect the mechanism of a national system for the 
prompt and accurate clearance and settlement of securities 
transactions, and, in general, to protect investors and the public 
interest. For the reasons discussed below, OCC believes the proposed 
rule change is consistent with Section 17A(b)(3)(F) \34\ of the 
Exchange Act and Rule 17Ad-22(e)(7)(viii),\35\ Rule 17Ad-22(e)(13),\36\ 
and Rule 17Ad-22(e)(16) \37\ thereunder.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78q-1(b)(3)(F).
    \34\ 15 U.S.C. 78q-1(b)(3)(F).
    \35\ 17 CFR 240.17Ad-22(e)(7)(viii).
    \36\ 17 CFR 240.17Ad-22(e)(13).
    \37\ 17 CFR 240.17Ad-22(e)(16).
---------------------------------------------------------------------------

Consistency With Section 17A(b)(3)(F) of the Exchange Act
    The Cash and Investment Management Policy is designed to safeguard 
cash and related investments within OCC's custody or control. The 
Policy applies to, among other things, cash deposited by Clearing 
Members in respect of margin and Clearing Fund requirements, any 
Government securities in which OCC invests such cash, and the Minimum 
Corporate Contribution, each of which are liquid resources available to 
facilitate settlement and to cover potential losses in the event of a 
Clearing Member default. The Policy also extends to OCC's own cash, 
including cash OCC maintains to cover potential general business losses 
so that OCC can continue operations and services as a going concern if 
those losses materialize, in accordance with OCC's Capital Management 
Policy. By providing safeguarding standards for managing such cash and 
related investments, the Policy would help ensure those resources will 
be available to facilitate settlement, cover potential default losses, 
or cover potential general business losses, as applicable. Therefore, 
OCC believes the Policy is 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, in 
general, to protect investors and the public interest, consistent with 
Section 17A(b)(3)(F) of the Exchange Act.\38\
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    The proposed rule change is also designed to ensure that OCC can 
continue to promptly settle the securities and derivatives transactions 
it clears by enhancing the existing tools OCC has to address potential 
liquidity shortfalls. Specifically, the proposed rule change would 
expand the existing borrowing authority in OCC's By-Laws to authorize 
borrowing in the extraordinary event that OCC faces a liquidity need in 
order to complete daily settlement with its Clearing Members resulting 
from the failure or disruption of an investment counterparty with whom 
OCC has invested Clearing Member Cash that is not a bank.
    It is conceivable, though extremely unlikely, that an investment 
counterparty may fail to return Clearing Member Cash that OCC has 
invested in Government securities with the counterparty in a DVP 
transaction as a result of a disruption or failure at that investment 
counterparty. The proposed rule change would enable OCC to borrow 
against the Clearing Fund in this scenario in order to avoid disrupting 
OCC's ordinary settlement cycle. In the extremely unlikely event that 
OCC incurs a loss resulting from the investment of Clearing Member 
Cash, OCC would retain authority to allocate such loss to the Clearing 
Fund, at OCC's discretion. Accordingly, OCC believes the proposed rule 
change is designed to promote the prompt and accurate clearance and 
settlement of securities transactions, in accordance with the 
requirements of Section 17A(b)(3)(F) of the Exchange Act.\39\
---------------------------------------------------------------------------

    \39\ Id.
---------------------------------------------------------------------------

Consistency With Rule 17Ad-22(e)(16)

    Rule 17Ad-22(e)(16) under the Exchange Act requires, in part, that 
OCC establish, implement, maintain and enforce written policies and 
procedures reasonably designed to safeguard OCC's

[[Page 1824]]

own and its participants' assets, minimize the risk of loss and delay 
in access to these assets, and invest such assets in instruments with 
minimal credit, market, and liquidity risks.\40\ As discussed above, 
the Policy outlines safeguarding standards for cash and related 
investments intended to minimize credit and liquidity risks. In 
addition, the Policy sets forth OCC's conservative investment strategy, 
according to which OCC's primary objective is to preserve principal and 
maintain adequate liquidity. The Policy also requires cash and related 
investments to be maintained with counterparties that have been 
initially approved and routinely monitored in accordance with OCC's 
Third Party Risk Management Policy and procedures governing banking 
relationships. Accordingly, OCC believes that the Policy is consistent 
with Rule 17Ad-22(e)(16).
---------------------------------------------------------------------------

    \40\ 17 CFR 240.17Ad-22(e)(16).
---------------------------------------------------------------------------

Consistency With Rule 17Ad-22(e)(7)(viii)
    Additionally, Rule 17Ad-22(e)(7)(viii) requires that OCC address 
foreseeable liquidity shortfalls that would not be covered by OCC's 
liquid resources and seek to avoid unwinding, revoking, or delaying the 
settlement of payment obligations.\41\ As stated above, OCC believes 
that it could be foreseeable, though extremely unlikely, that an 
investment counterparty that is not a bank may fail to return Clearing 
Member Cash as the result of the investment counterparty's disruption 
or failure. An alternative available to OCC for addressing uncovered 
liquidity shortfalls would be to exercise authority under Rule 505 to 
extend the settlement window to the close of Fedwire.\42\ The proposed 
rule change would improve OCC's ability to address such situations by 
expanding OCC's borrowing authority to enable OCC to borrow against the 
Clearing Fund to address a failure or disruption at a non-bank 
investment counterparty rather than disrupting its ordinary settlement 
cycle. Accordingly, OCC believes that proposed changes to OCC Rules are 
consistent with Rule 17Ad-22(e)(7)(viii).
---------------------------------------------------------------------------

    \41\ 17 CFR 240.17Ad-22(e)(7)(viii).
    \42\ See OCC Rule 505 (Extension of Settlements).
---------------------------------------------------------------------------

Consistency With Rule 17Ad-22(e)(13)
    Finally, Rule 17Ad-22(e)(13) requires, in part, that OCC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to ensure OCC has the authority to take timely 
action to contain losses and liquidity demands and continue to meet its 
obligations.\43\ As described above, this proposal would amend OCC's 
Rules concerning loss allocation in the extremely unlikely event that 
the failure or disruption of a non-bank investment counterparty results 
in a loss to OCC arising from the investment of Clearing Member Cash. 
The expansion of existing authority to allocate such losses 
attributable to a non-bank investment counterparty helps establish a 
more transparent and clear loss allocation process that ensures OCC's 
authority to take action to contain losses and continue to meet its 
clearance and settlement obligations. Accordingly, OCC believes the 
proposed changes to OCC's Rules are consistent with Rule 17Ad-
22(e)(13).
---------------------------------------------------------------------------

    \43\ 17 CFR 240.17Ad-22(e)(13).
---------------------------------------------------------------------------

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

    Section 17A(b)(3)(I) of the Exchange Act \44\ 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 Exchange 
Act. OCC 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 formalize OCC's Cash and Investment 
Management Policy and enhance OCC's access to the Clearing Fund by 
expanding the existing authority concerning bank failures to also apply 
in the case of failures by other investment counterparties. The 
proposed rule change would not affect Clearing Members' access to OCC's 
services or disadvantage or favor any particular user in relationship 
to another user. As such, OCC believes that the proposed changes would 
not have any impact or impose any burden on competition.
---------------------------------------------------------------------------

    \44\ 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 on the proposed rule change were not and are not 
intended to be solicited with respect to the proposed rule change and 
none have been received.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.
    OCC shall post notice on its website of proposed changes that are 
implemented. 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 [email protected]. Please include 
File Number SR-OCC-2021-014 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-OCC-2021-014. 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 filing also will be available for inspection 
and copying at the principal office of OCC and on OCC's website at

[[Page 1825]]

https://www.theocc.com/Company-Information/Documents-and-Archives/By-Laws-and-Rules.
    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-2021-014 and 
should be submitted on or before February 2, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\45\
---------------------------------------------------------------------------

    \45\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-00378 Filed 1-11-22; 8:45 am]
BILLING CODE 8011-01-P


