[Federal Register Volume 87, Number 234 (Wednesday, December 7, 2022)]
[Notices]
[Pages 75105-75113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26535]


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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96426; File No. SR-NSCC-2022-005]


Self-Regulatory Organizations; National Securities Clearing 
Corporation; Notice of Filing of Partial Amendment No. 2 and Amendment 
No. 3 and of Designation of Longer Period for Commission Action on 
Proceedings To Determine Whether To Approve or Disapprove a Proposed 
Rule Change To Revise the Excess Capital Premium Charge Order

December 1, 2022.
    On May 20, 2022, National Securities Clearing Corporation 
(``NSCC'') filed with the Securities and Exchange Commission 
(``Commission'') proposed rule change SR-NSCC-2022-005 pursuant to 
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') \1\ 
and Rule 19b-4 thereunder.\2\ The proposed rule change was published 
for comment in the Federal Register on June 8, 2022,\3\ and the 
Commission has received comments regarding the changes proposed in the 
proposed rule change.\4\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 95026 (June 2, 2022), 87 
FR 34913 (June 8, 2022) (File No. SR-NSCC-2022-005). The Notice 
referred to an incorrect filing date of May 30, 2022; however, the 
proposal was filed on May 20, 2022, as indicated here. Moreover, the 
Notice reflected the filing of Amendment No. 1, which made a 
correction to Exhibit 5 of the filing, specifically, to insert an 
additional cross-reference into a proposed definition that had been 
omitted.
    \4\ Comments are available at https://www.sec.gov/comments/sr-nscc-2022-005/srnscc2022005.htm.
---------------------------------------------------------------------------

    On July 11, 2022, pursuant to Section 19(b)(2) of the Act,\5\ the 
Commission designated a longer period within which to approve, 
disapprove, or institute proceedings to determine whether to approve or 
disapprove the Proposed Rule Change.\6\ On September 1, 2022, the 
Commission instituted proceedings, pursuant to Section 19(b)(2)(B) of 
the Act,\7\ to determine whether to approve or disapprove the Proposed 
Rule Change.\8\
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78s(b)(2).
    \6\ Securities Exchange Act Release No. 95245 (July 11, 2022), 
87 FR 42523 (July 15, 2022) (SR-NSCC-2022-005).
    \7\ 15 U.S.C. 78s(b)(2)(B).
    \8\ Securities Exchange Act Release No. 95656 (Sept. 1, 2022), 
87 FR 55058 (Sept. 8, 2022) (File No. SR-NSCC-2022-005).
---------------------------------------------------------------------------

    On July 6, 2022, NSCC filed a partial amendment (``Amendment No. 
2'') to modify the proposed rule change.\9\ On November 28, 2022, NSCC 
filed another amendment (``Amendment No. 3'') to modify the proposed 
rule change as described in Items I, II and III below, which Items have 
been prepared primarily by the clearing agency.\10\
---------------------------------------------------------------------------

    \9\ Amendment No. 2 partially amended the proposed rule change 
to update the description of the impact of the proposal. The 
contents of that Amendment are reflected in Section II(A)(1)(vii) 
below. In Amendment No. 2, NSCC also provided a revised version of 
the confidential impact study that it included as Exhibit 3a to the 
proposed rule change.
    \10\ Amendment No. 3 amends and replaces the proposed rule 
change in its entirety. Specifically, it would clarify the 
particular circumstances in which NSCC would retain the ability to 
waive the ECP charge, rather than remove NSCC's discretion to waive 
or reduce the charge as was initially proposed in the proposed rule 
change. As described in greater detail below in Section II.(iv), 
this Amendment describes why NSCC believes it is appropriate for 
NSCC to retain discretion to waive an ECP charge in certain defined 
circumstances, defines the circumstances in which NSCC may waive the 
ECP charge, and discloses both the information that NSCC would 
review in deciding whether to waive the ECP charge as well as the 
governance around the application of such waiver. In order to 
implement these proposed changes, NSCC would amend Section I(B)(2) 
of Procedure XV of the Rules to include a new subsection (c) to 
describe NSCC's discretion to waive the ECP charge.

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

[[Page 75106]]

    The Commission is publishing this notice to solicit comments on 
Amendment Nos. 2 and 3 from interested persons and to designate a 
longer period for Commission action pursuant to Section 19(b)(2)(B) of 
the Act \11\ to determine whether to approve or disapprove the proposed 
rule change, as modified by Amendment Nos. 2 and 3 (hereinafter, 
``proposed rule change'').
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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

    The proposed rule change consists of modifications to Procedure XV 
(Clearing Fund Formula and Other Matters) of NSCC's Rules & Procedures 
(``Rules'') \12\ to revise the Excess Capital Premium (``ECP'') charge 
by enhancing the methodology for calculating the charge to (1) compare 
a Member's applicable capital amounts with the amount it contributes to 
the Clearing Fund that represents its volatility charge, (2) for 
Members that are broker-dealers, use net capital amounts rather than 
excess net capital amounts in the calculation of the ECP charge; and 
for all other Members, use equity capital in the calculation of the ECP 
charge, and (3) establish a cap of 2.0 for the Excess Capital Ratio (as 
defined below) that is used in calculating a Member's ECP charge.
---------------------------------------------------------------------------

    \12\ Capitalized terms not defined herein are defined in the 
Rules, available at http://dtcc.com/~/media/Files/Downloads/legal/
rules/nscc_rules.pdf.
---------------------------------------------------------------------------

    The proposed changes would also improve the transparency of the 
Rules regarding the ECP charge by (1) clarifying the capital amounts 
that are used in the calculation of the charge by introducing new 
defined terms, (2) clarifying the particular circumstances in which 
NSCC retains the ability to waive the charge, and (3) providing that 
NSCC may calculate the charge based on updated capital information, as 
described in greater detail below.

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

    In its filing with the Commission, the clearing agency included 
statements concerning the purpose of and basis for the proposed rule 
change and discussed any comments it received on the proposed rule 
change. The text of these statements may be examined at the places 
specified in Item III below. The clearing agency has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant aspects of such statements.

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

1. Purpose
Description of Amendment No. 3
    This filing constitutes Amendment No. 3 to proposed rule change SR-
NSCC-2022-005, which was filed with the Commission on May 20, 2022, and 
previously amended on June 1, 2022 and July 6, 2022. This Amendment 
amends and replaces the Filing, as previously amended, in its entirety. 
NSCC submits this Amendment in order to clarify the particular 
circumstances in which NSCC would retain the ability to waive the ECP 
charge, rather than remove NSCC's discretion to waive or reduce the 
charge as was proposed in the Filing.
    In particular, and as described in greater detail below, this 
Amendment describes why NSCC believes it is appropriate for NSCC to 
retain discretion to waive an ECP charge in certain defined 
circumstances, defines the circumstances in which NSCC may waive the 
ECP charge, and discloses both the information that NSCC would review 
in deciding whether to waive the ECP charge as well as the governance 
around the application of such waiver. In order to implement these 
proposed changes, NSCC would amend Section I(B)(2) of Procedure XV of 
the Rules to include a new subsection (c) to describe NSCC's discretion 
to waive the ECP charge, as shown in Exhibits 4 and 5 to this 
Amendment.
Proposed Rule Change
    NSCC is proposing to modify the ECP charge, which is a component of 
its Clearing Fund that NSCC may impose on a Member when a portion of 
that Member's Required Fund Deposit (defined in the Rules as the 
``Calculated Amount'') exceeds its applicable capital amounts by 1.0 
(defined in the Rules as the ``Excess Capital Ratio''), as described in 
greater detail below.\13\ The proposed changes would revise the ECP 
charge by enhancing the methodology for calculating the charge to (1) 
compare a Member's applicable capital amounts with the amount it 
contributes to the Clearing Fund that represents its volatility charge, 
(2) for Members that are broker-dealers, use net capital amounts rather 
than excess net capital amounts in the calculation of the ECP charge; 
and for all other Members, use equity capital in the calculation of the 
ECP charge, and (3) establish a cap of 2.0 for the Excess Capital Ratio 
that is used in calculating a Member's ECP charge.
---------------------------------------------------------------------------

    \13\ See Section I(B)(2) of Procedure XV, id.
---------------------------------------------------------------------------

    The proposed changes would also improve the transparency of the 
Rules regarding the ECP charge by (1) clarifying the capital amounts 
that are used in the calculation of the charge by introducing new 
defined terms, (2) clarifying the particular circumstances in which 
NSCC retains the ability to waive the charge, and (3) providing that 
NSCC may calculate the charge based on updated capital information, as 
described in greater detail below.
(i) Overview of the Required Fund Deposit and NSCC's Clearing Fund
    As part of its market risk management strategy, NSCC manages its 
credit exposure to Members by determining the appropriate Required Fund 
Deposits to the Clearing Fund and monitoring its sufficiency, as 
provided for in the Rules.\14\ The Required Fund Deposit serves as each 
Member's margin.
---------------------------------------------------------------------------

    \14\ See Rule 4 and Procedure XV, supra note 12. NSCC's market 
risk management strategy is designed to comply with Rule 17Ad-
22(e)(4) under the Act, where these risks are referred to as 
``credit risks.'' 17 CFR 240.17Ad-22(e)(4).
---------------------------------------------------------------------------

    The objective of a Member's Required Fund Deposit is to mitigate 
potential losses to NSCC associated with liquidating a Member's 
portfolio in the event NSCC ceases to act for that Member (hereinafter 
referred to as a ``default'').\15\ The aggregate of all Members' 
Required Fund Deposits constitutes the Clearing Fund of NSCC. NSCC 
would access its Clearing Fund should a defaulting Member's own 
Required Fund Deposit be insufficient to satisfy losses to NSCC caused 
by the liquidation of that Member's portfolio. Pursuant to the Rules, 
each Member's Required Fund Deposit consists of a number of applicable 
components, each of which is calculated to address specific risks faced 
by NSCC, as identified within Procedure XV of the Rules.\16\
---------------------------------------------------------------------------

    \15\ The Rules identify when NSCC may cease to act for a Member 
and the types of actions NSCC may take. For example, NSCC may 
suspend a firm's membership with NSCC or prohibit or limit a 
Member's access to NSCC's services in the event that Member defaults 
on a financial or other obligation to NSCC. See Rule 46, supra note 
12.
    \16\ Supra note 12.
---------------------------------------------------------------------------

    While many components of the Clearing Fund are designed to measure 
risks presented by the net unsettled positions a Member submits to NSCC 
to be cleared and settled, some components measure and mitigate other 
risks that NSCC may face, such as credit

[[Page 75107]]

risks. For example, a Member may be required to make an additional 
deposit to the Clearing Fund pursuant to Section I(B)(1) of Procedure 
XV of the Rules if it is placed on the Watch List, which is defined in 
Rule 1 (Definitions and Descriptions) of the Rules as a list of Members 
who NSCC deems to pose heightened risk to it and its other Members 
based on consideration of relevant factors.\17\
---------------------------------------------------------------------------

    \17\ See Section 4 of Rule 2B, which describes NSCC's ongoing 
monitoring and review of Members and the factors NSCC considers in 
assigning Members a credit rating that could result in a Member 
being placed on the Watch List, supra note 12.
---------------------------------------------------------------------------

    Similarly, the ECP charge is a component of the Clearing Fund that 
is designed to mitigate the heightened default risk a Member could pose 
to NSCC if it operates with lower capital levels relative to its margin 
requirements. Each Business Day, NSCC determines if a Member may be 
subject to the ECP charge by first determining its Calculated Amount. 
The Calculated Amount is a portion of a Member's Required Fund Deposit 
designed to represent its margin requirements to NSCC. A Member's 
Calculated Amount is calculated as its Required Fund Deposit excluding 
any applicable special charge, margin requirement differential charge, 
coverage component charge or margin liquidity adjustment charge,\18\ 
plus any additional amounts the Member is required to deposit to the 
Clearing Fund either due to being placed on the Watch List \19\ or 
pursuant to Rule 15 (Assurances of Financial Responsibility and 
Operational Capability) of the Rules.\20\
---------------------------------------------------------------------------

    \18\ The special charge is described in Section I(A)(1)(c) and 
(2)(c) of Procedure XV, the MRD charge is described in Section 
I(A)(1)(e) and (2)(d) of Procedure XV, the coverage component charge 
is described in Section I(A)(1)(f) and (2)(e) of Procedure XV, and 
the MLA charge is described in Section I(A)(1)(g) and (2)(f) of 
Procedure XV, supra note 12.
    \19\ Supra note 17.
    \20\ Pursuant to Section 2(b)(iv) of Rule 15, NSCC may require a 
Member to provide NSCC with adequate assurances of that Member's 
financial responsibility in the form of increased Clearing Fund 
deposits. Supra note 12.
---------------------------------------------------------------------------

    NSCC then divides the Member's Calculated Amount by its current 
capital amount, which is the amount reported to NSCC pursuant to its 
ongoing membership standards, as set out in Rule 2B (Ongoing Membership 
Requirements and Monitoring) and Addendum B (Qualifications and 
Standards of Financial Responsibility, Operational Capability and 
Business History) of the Rules.\21\ Pursuant to the current membership 
standards in Addendum B of the Rules, Members that are broker-dealers 
are required to maintain a certain level of excess net capital, and 
Members that are banks are required to maintain a certain level of 
equity capital as a requirement for continued membership with NSCC.\22\ 
Pursuant to Section 2 of Rule 2B of the Rules, Members are required to 
provide NSCC with financial information, including information 
regarding Members' current capital amounts, on a regular basis and NSCC 
uses these reported capital amounts in the calculation of the ECP 
charge.\23\
---------------------------------------------------------------------------

    \21\ Supra note 12.
    \22\ See Section 1. B.1. of Addendum B, supra note 12. NSCC has 
proposed changes to the membership standards set forth in Addendum B 
that would modify the capital requirements for Members. See 
Securities Exchange Act Release No. 94068 (January 26, 2022), 21 FR 
5544 (February 1, 2022) (SR-NSCC-2021-016).
    \23\ See Section 2(A) of Rule 2B, supra note 12.
---------------------------------------------------------------------------

    Pursuant to Section I(B)(2) of Procedure XV, if a Member's 
Calculated Amount, when divided by its applicable capital amount, is 
greater than the Excess Capital Ratio of 1.0, NSCC may require that 
Member to deposit an ECP charge.\24\ The applicable ECP charge may be 
equal to the product of (1) the amount by which a Member's Calculated 
Amount exceeds its applicable capital amount, multiplied by (2) the 
Member's Excess Capital Ratio. Members are able to access and view 
reports regarding their Clearing Fund and, through these reports, 
Members may be alerted when their Calculated Amount divided by the 
applicable capital amount is greater than 0.5, as an early warning 
regarding their capital levels.
---------------------------------------------------------------------------

    \24\ Supra note 12.
---------------------------------------------------------------------------

    Under Section I(B)(2) of Procedure XV, NSCC may collect a lower ECP 
charge than the amount calculated pursuant to the Rules, may determine 
not to collect the ECP charge from a Member at all, and may return all 
or a portion of a collected ECP charge if it believes the imposition or 
maintenance of the ECP charge is not necessary or appropriate.\25\ 
Section I(B)(2) of Procedure XV describes some circumstances when NSCC 
may determine not to collect an ECP charge from a Member, which 
includes, for example, when an ECP charge results from trading activity 
for which the Member submits later offsetting activity that lowers its 
Required Fund Deposit.\26\ The discretion to adjust, waive or return an 
ECP charge was designed to provide NSCC with the ability to determine 
when a calculated ECP charge may not be necessary or appropriate to 
mitigate the risks it was designed to address.\27\
---------------------------------------------------------------------------

    \25\ When NSCC determines to collect a lower amount than that 
amount calculated pursuant to the Rules, as provided for under 
Procedure XV, NSCC may, for example, calculate that lower amount by 
reducing the Excess Capital Ratio used in the calculation to 2.0. 
Supra note 12.
    \26\ See footnote 7 of Procedure XV, supra note 12.
    \27\ See Securities Exchange Act Release No. 54457 (September 
15, 2006), 71 FR 55239 (September 21, 2006) (SR-FICC-2006-03 and SR-
NSCC-2006-03).
---------------------------------------------------------------------------

    Since the ECP charge was adopted, NSCC has calculated and assessed 
the ECP charge consistent with the Rules, and NSCC has exercised its 
discretion to both reduce and waive the ECP charge when NSCC has deemed 
it necessary or appropriate. NSCC recently reviewed the effectiveness 
of the ECP charge to identify ways NSCC could enhance both the 
calculation of the charge and the disclosures regarding the charge in 
the Rules. In connection with this review, NSCC discussed the ECP 
charge and its proposed enhancements with Members, NSCC management, and 
NSCC's supervisors at the Commission. As a result of this review, NSCC 
is proposing to make several enhancements to the ECP charge, as 
described in greater detail below.
    These enhancements are designed to improve NSCC's ability to 
measure the increased default risks that are presented by Members who 
operate with lower capital. The proposed changes would simplify the 
calculation of the charge and the description of the charge in the 
Rules, making it more predictable to Members. The proposed changes are 
designed to improve the transparency of the ECP charge to Members by 
clarifying the particular circumstances in which NSCC retains the 
ability to waive the charge and providing that NSCC may calculate the 
charge based on updated capital information. The proposed improvements 
to the transparency of the ECP charge also include clarifying the 
descriptions of the capital amounts that would be used in the 
calculation of the charge through new defined terms. Collectively, the 
proposal would make the ECP charge more consistent, transparent, and 
predictable to Members, while maintaining the effectiveness of NSCC's 
risk-based margining methodology as it relates to the ECP charge.
(ii) Use Members' Volatility Component as the Calculated Amount
    NSCC is proposing to replace the Calculated Amount with the amount 
collected as that Member's volatility component as determined pursuant 
to Sections I(A)(1)(a)(i)-(iii) and (2)(a)(i)-(iii) of Procedure XV of 
the Rules.\28\
---------------------------------------------------------------------------

    \28\ The volatility component is designed to capture the market 
price risk associated with each Member's portfolio at a 99th 
percentile level of confidence. NSCC has two methodologies for 
calculating the volatility component--a model-based volatility-at-
risk, or VaR, charge and a haircut-based calculation, for certain 
positions that are excluded from the VaR charge calculation. The 
charge that is applied to a Member's Required Fund Deposit with 
respect to the volatility component is referred to as the volatility 
charge and is the sum of the applicable VaR charge and the haircut-
based calculation. Amounts calculated pursuant to Sections 
I(A)(1)(a)(iv) and (2)(a)(iv) of Procedure XV with respect to long 
positions in Net Unsettled Positions in Family-Issued Securities are 
designed to address wrong-way risk presented by these positions, not 
volatility risks, and, as such, are not a part of a Member's 
volatility charge. See Sections I(A)(1)(a) and (2)(a) of Procedure 
XV, supra note 12.

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

[[Page 75108]]

    In both determining if an ECP charge is applicable and in 
calculating an ECP charge, NSCC currently compares a Member's 
Calculated Amount to its reported capital levels. As described above, 
the Calculated Amount is defined in Section I(B)(2) of Procedure XV as 
a Member's Required Fund Deposit, excluding certain components and 
including other additional deposits to the Clearing Fund.\29\ Because a 
goal of the ECP charge is to identify and mitigate risks presented when 
a Member's capital levels may not be adequate to meet its margin 
requirements to NSCC, the Calculated Amount is designed to represent a 
material portion of those margin requirements.
---------------------------------------------------------------------------

    \29\ See supra note 18.
---------------------------------------------------------------------------

    As described above, because each component of the Clearing Fund is 
calculated to address specific risks faced by NSCC, some components are 
applied only to certain positions in a Member's portfolio. For example, 
the CNS fails charge, which is included in the Calculated Amount, is 
based on the market value of only a Member's CNS Fails Positions (as 
defined in the Rules) of the Member.\30\ The volatility component of 
the Clearing Fund measures the market price volatility of all of a 
Member's Net Unsettled Positions and Net Balance Order Unsettled 
Positions (as defined in the Rules). Therefore, the volatility 
component is often considered a comprehensive measurement of the risks 
presented by a Member's clearing activity and usually comprises the 
largest portion of a Member's Required Fund Deposit.\31\ NSCC believes 
that replacing the Calculated Amount with a Member's volatility charge 
would provide an appropriate measure for purposes of the ECP charge.
---------------------------------------------------------------------------

    \30\ See definition of ``CNS Fails Position'' in Rule 1, and see 
also Section I(A)(1)(e) of Procedure XV, supra note 12.
    \31\ See definitions of ``Net Unsettled Position'' and ``Net 
Unsettled Balance Order Position'' in Rule 1, supra note 12.
---------------------------------------------------------------------------

    Currently, determining a Member's Calculated Amount requires a more 
complicated calculation, as it uses a Member's Required Fund Deposit, 
excludes certain components, and includes other deposits. The proposal 
would simplify this calculation significantly by using only the 
volatility component. One of the tools NSCC provides to its Members is 
a calculator that allows them to determine their potential volatility 
charge based on trading activity. Therefore, this proposed change would 
make the calculation of the ECP charge both clearer and more 
predictable for Members.
    NSCC does not expect that any impact of this proposed change on the 
number of ECP charges or the size of the calculated ECP charges would 
materially impact NSCC's ability to manage the risks the ECP charge is 
designed to address. NSCC believes the benefits of using a simpler, 
clearer, and more predictable calculation that is based on the most 
comprehensive component of the Clearing Fund outweigh any risk related 
to the reduction in the ECP charges NSCC would collect.
(iii) Use Net Capital for Broker-Dealer Members and Equity Capital for 
All Other Members in the Calculation of the ECP Charge
    In the calculation of the ECP charge, NSCC is proposing to use net 
capital rather than excess net capital for Members that are broker-
dealers, and equity capital for all other Members. As described in 
greater detail below, in connection with these proposed changes, NSCC 
would also improve the transparency of the Rules by adopting 
definitions of ``Net Capital'' and ``Equity Capital.''
    As described above, NSCC's ongoing membership requirements, set 
forth in Rule 2B of the Rules, require Members to provide NSCC with 
regular information regarding their financial positions, including 
capital levels.\32\ This information is provided, in part, to confirm 
that Members continue to maintain the minimum financial requirements of 
membership set forth in Addendum B of the Rules.\33\ Currently, NSCC 
also uses these reported capital amounts in the calculation of the ECP 
charge.
---------------------------------------------------------------------------

    \32\ See Section 2.A of Rule 2B, which requires Members to 
provide NSCC with a copy of their Form X-17-A-5 (Financial and 
Operational Combined Uniform Single (``FOCUS'') Report), 
Consolidated Report of Condition and Income (``Call Report''), or an 
equivalent, supra note 12.
    \33\ Supra note 12.
---------------------------------------------------------------------------

    First, NSCC believes it would be appropriate to revise the capital 
measure used to calculate the ECP charge for broker-dealer Members to 
replace excess net capital with net capital. This revision would align 
the capital measures used for broker-dealer Members and other Members, 
which would result in more consistent calculations of the ECP charge 
across different types of Members.
    In addition to creating consistency in the calculations for 
different Members, NSCC believes that using net capital rather than 
excess net capital would also provide NSCC with a better measure of the 
increased default risks presented when a Member operates at low net 
capital levels relative to its margin requirements. This approach would 
be consistent with the rationale for the Commission's amendments to 
Rule 15c3-1 under the Act (the ``Net Capital Rule''), which were 
designed to promote a broker-dealer's capital quality and require the 
maintenance of ``net capital'' (i.e., capital in excess of liabilities) 
in specified amounts as determined by the type of business 
conducted.\34\ The Net Capital Rule was designed to ensure the 
availability of funds and assets (including securities) in the event 
that a broker-dealer's liquidation becomes necessary. The Net Capital 
Rule represented a net worth perspective, which is adjusted by 
unrealized profit or loss, deferred tax provisions, and certain 
liabilities as detailed in the rule. It also included deductions and 
offsets and required that a broker-dealer demonstrate compliance with 
the Net Capital Rule, including maintaining sufficient net capital at 
all times (including intraday).
---------------------------------------------------------------------------

    \34\ 17 CFR 240.15c3-1. See Securities Exchange Act Release No. 
70072 (July 30, 2013), 78 FR 51823 (August 21, 2013) (File No. S7-
08-07).
---------------------------------------------------------------------------

    Similarly, NSCC believes that the Net Capital Rule is an effective 
process of separating liquid and illiquid assets and computing a 
broker-dealer's regulatory net capital that should replace NSCC's 
existing practice of using excess net capital in the calculation of the 
ECP charge.
    Second, NSCC is proposing to revise the Rules to provide that, for 
all Members that are not broker-dealers, it would use equity capital in 
calculating the ECP charge. Currently, the Rules state that NSCC would 
use a Member's capital amount set forth in the membership standards in 
Addendum B of the Rules.\35\ Section 1.B of Addendum B describes the 
membership standards of Members, and currently states that the 
applicable capital measure for Members that are banks is equity 
capital, for Members that are trust companies and not banks the

[[Page 75109]]

applicable capital measure is consolidated capital, and for other legal 
entities that are Members the applicable capital measure is determined 
by NSCC. Currently, and historically, NSCC has had very few Members 
that are trusts and not banks. For all Members that are not banks, non-
bank trusts or broker-dealers (which generally include, for example, 
exchanges and registered clearing agencies), NSCC uses those Members' 
reported equity capital in the calculation of the ECP charge. 
Therefore, in practice, the ECP charge is calculated for the majority 
of Members that are not broker-dealers using their equity capital, and 
this proposed change is not expected to have a material impact on the 
collection of ECP charges. The proposal would simplify the calculation 
of the ECP charge for Members that are not broker-dealers by stating in 
Section I(B)(2) of Procedure XV that NSCC would use equity capital 
rather than use different measures that are based on other membership 
requirements. This proposed change would also create consistency in the 
calculations across Members.
---------------------------------------------------------------------------

    \35\ Supra note 12.
---------------------------------------------------------------------------

(iv) Establish a Cap for the Excess Capital Ratio
    NSCC is proposing to set a maximum amount of Excess Capital Ratio 
that is used in calculating Members' ECP charge to 2.0. NSCC believes 
capping the multiplier that is used in this calculation would allow 
NSCC to appropriately address the risks it faces without imposing an 
overly burdensome ECP charge. Historically, the Excess Capital Ratio 
has rarely exceeded 2.0 in the calculation of Members' ECP charges, and 
in cases when 2.0 was exceeded NSCC typically exercised the discretion 
provided to it in the Rules to reduce the applicable charge. NSCC's 
discretion was appropriate in these circumstances because NSCC believes 
it is able to mitigate the risks presented to it by a Member's lower 
capital levels by collecting an ECP charge calculated with an Excess 
Capital Ratio that is at or below 2.0.
    Therefore, and consistent with NSCC's proposal to clarify its 
discretion to waive the ECP charge, as described below, NSCC believes 
capping the Excess Capital Ratio at 2.0 would continue to provide NSCC 
with an appropriate measure of the risks presented to it relative to 
Members' capital levels. This proposed change would also provide 
Members with more clarity and transparency into the ECP charge, by 
allowing them to predict and estimate the maximum amount of their 
potential ECP charge.
(v) Improve Transparency Regarding the ECP Charge
    NSCC is proposing changes to Section I(B)(2) of Procedure XV to 
improve transparency regarding the ECP charge by (a) clarifying the 
description of the capital amounts that NSCC uses in the calculation of 
the ECP charge by adopting new defined terms, (b) clarifying the 
particular circumstances in which NSCC retains the ability to waive the 
charge, and (c) providing that NSCC may calculate the charge based on 
updated capital information.
    First, NSCC is proposing to clarify the description of the capital 
amounts that it uses to calculate the ECP charge by introducing defined 
terms and specifying the reporting requirements that NSCC relies on to 
obtain that capital information for Members. As described above, for 
Members that are broker-dealers, NSCC is proposing to use a Member's 
net capital amount, and for all other Members, NSCC would use a 
Member's equity capital in the calculation of the ECP charge. In order 
to improve the clarity of the Rules, NSCC is proposing to introduce a 
defined term for ``Equity Capital'' in Rule 1 and to revise a proposed 
defined term for ``Net Capital'' in order to align the two defined 
terms. The proposal would also revise Section I(B)(2) of Procedure XV 
in describing the calculation of the ECP charge to use these defined 
terms where appropriate. Finally, the proposal would amend Addendum B 
to include the new defined term for Equity Capital.
    The definition of Equity Capital would be, as of a particular date, 
the amount equal to the equity capital as reported on the Member's or 
Limited Member's most recent Call Report, or, if the Member or Limited 
Member is not required to file a Call Report, then as reported on its 
most recent financial statements or equivalent reporting. NSCC would 
also align a proposed definition of Net Capital to be, as of a 
particular date, the amount equal to the net capital as reported on the 
Member's or Limited Member's most recent FOCUS Report, or, if the 
Member or Limited Member is not required to file a FOCUS Report, then 
as reported on its most recent financial statements or equivalent 
reporting.
    In addition to using these new defined terms, NSCC would also add a 
statement to Section I(B)(2) of Procedure XV to clarify to Members that 
the amounts used in the calculation of the ECP charge would be the 
amounts included in their regular reporting that is provided to NSCC 
pursuant to the ongoing membership reporting requirements, specifically 
in their FOCUS Report or Call Report, as applicable, or in an 
equivalent financial statement or report that is delivered to NSCC 
pursuant to the same requirement. Collectively, these proposed changes 
would provide Members with improved clarity and certainty regarding the 
amounts that would be used in calculating the ECP charge.
    Second, the proposed changes would clarify the particular 
circumstances in which NSCC retains the ability to waive the ECP 
charge. NSCC believes that the proposed changes to the calculation of 
the ECP charge described in this filing would have the collective 
impact of eliminating most circumstances in which NSCC would have 
exercised this discretion. For example, the proposal to cap the Excess 
Capital Ratio at 2.0 and the proposal to specify that NSCC may 
calculate an ECP charge based on updated capital amounts, both address 
the most common circumstances when NSCC has either waived or reduced 
the ECP charge in the past. However, NSCC believes that there may still 
be circumstances when it may not be necessary or appropriate to collect 
an ECP charge from a Member, for example, in certain exigent 
circumstances when NSCC observes unexpected changes in market 
volatility or trading volumes. Therefore, NSCC is proposing to retain 
discretion to waive an ECP charge in certain defined circumstances and 
to disclose the governance around the application of such discretion. 
The proposed changes would revise Section I(B)(2) of Procedure XV by 
adding a new subsection (c) to provide Members with transparency 
regarding this retained discretion.
    The proposed subsection (c) would describe the exigent 
circumstances in which NSCC would retain the ability to waive an ECP 
charge. Such exigent circumstances would constitute circumstances when 
NSCC, in its sole discretion, observes extreme market conditions or 
other unexpected changes in factors such as market volatility, trading 
volumes or other similar factors. As noted above, NSCC believes, based 
on a review of past data, that the proposed changes to the calculation 
of the ECP charge would otherwise eliminate most prior instances when 
an ECP charge was waived. However, in further reviewing such data, NSCC 
also observed that there have been instances, particularly in recent 
years, when NSCC has waived the ECP charge in moments covered by the 
concept of exigent circumstances, and that the ECP charge would have 
been triggered in such

[[Page 75110]]

circumstances even under the proposed calculation of the charge. Such 
moments occurred multiple times in recent years, including, for 
example, during the extreme market volatility experienced in early 2020 
related to the global outbreak of the COVID-19 coronavirus and the meme 
stock market event in early 2021.
    Based upon this further review of the data, NSCC believes there 
remains some ongoing possibility that an unexpected increase in market 
volatility, for example, could cause a relative increase in a Member's 
volatility charge, which may, in turn, trigger an ECP charge, even 
under the proposed new ECP charge calculation. In such circumstances, 
under the proposal, NSCC would determine if the ECP charge being 
triggered at that time is not primarily caused by the risk presented by 
a Member's capital levels and whether NSCC can effectively address the 
risk exposure presented by that Member without the collection of the 
ECP charge from that Member. Alternatively, NSCC may determine, based 
on its review of the information available to it, that the ECP charge 
was appropriately triggered by a Member's capital position or trading 
activity and was not driven primarily by the prevailing market 
conditions or other exigent circumstances. Therefore, NSCC believes it 
is appropriate to retain a certain amount of discretion to review an 
ECP charge that is triggered in such circumstances to determine whether 
a waiver of the ECP charge may be appropriate.
    In addition to defining the circumstances in which NSCC may waive 
the ECP charge, the proposed changes would also describe the review 
NSCC would conduct in deciding to waive the charge in the exigent 
circumstances, the information NSCC would consider in such review, and 
the governance around a determination by NSCC to waive the ECP charge. 
More specifically, the proposed rule change provides that NSCC would 
review all relevant facts and other information available to it at the 
time of its decision, including the degree to which a Member's capital 
position and trading activity compare or correlate to the prevailing 
exigent circumstances and whether NSCC can effectively address the risk 
exposure presented by a Member without the collection of the ECP charge 
from that Member. For example, as noted above, if NSCC believes, based 
on its review of the relevant circumstances, that the risk exposure 
presented by a Member is driven by the unexpected increase in market 
volatility and not by a Member's capital levels, NSCC may determine 
that it is appropriate to address such risk through the collection of a 
special charge from that Member rather than an ECP charge.\36\ By 
describing NSCC's review in Procedure XV, the proposed changes would 
alert Members that, while exigent circumstances may permit NSCC to 
consider whether to waive an ECP charge, NSCC would still consider 
information available to it at that time in determining whether a 
waiver is appropriate, including NSCC's ability to effectively manage 
the heightened default risks presented by Members that operate at lower 
capital levels.
---------------------------------------------------------------------------

    \36\ See Section I(A)(1)(c) and (2)(c) of Procedure XV of the 
Rules, under which NSCC may collect, as part of Members' Required 
Fund Deposit to the Clearing fund, ``[a]n additional payment 
(``special charge'') from Members in view of price fluctuations in 
or volatility or lack of liquidity of any security.'' Supra note 12.
---------------------------------------------------------------------------

    Finally, the proposed rule change would provide transparency into 
the governance around a decision to waive an ECP charge by identifying 
the NSCC officer who would be authorized to apply a waiver and 
requiring that the decision be documented.\37\
---------------------------------------------------------------------------

    \37\ NSCC would also update its internal procedures to include 
waivers of the ECP charge in NSCC's regular updates to the 
Commission.
---------------------------------------------------------------------------

    By clarifying the particular circumstances in which NSCC retains 
the ability to waive the ECP charge, the proposal would provide Members 
with more certainty and transparency in predicting when an ECP charge 
may be waived and how NSCC would make a determination to apply such a 
waiver.
    Third, NSCC would provide that it may calculate the ECP charge 
based on updated capital information. As described above, NSCC would 
use the net capital or equity capital amounts that are reported on 
Members' most recent financial reporting or financial statements 
delivered to NSCC in connection with the ongoing membership reporting 
requirements. Under the proposal, if a Member's capital amounts change 
between the dates when it submits these financial reports, it may 
provide NSCC with updated capital information for purposes of 
calculating the ECP charge. Today, when NSCC exercises its discretion 
to waive or reduce the amount of an applicable ECP charge, NSCC 
occasionally does so by applying updated capital information in its 
calculation. Therefore, in connection with clarifying this discretion, 
NSCC would disclose in the Rules that it may use updated capital 
information in the calculation of an ECP charge rather than require 
Members to wait until the issuances of their next financial reporting 
or financial statements for changes in their capital positions to be 
reflected in an ECP charge calculation.
    NSCC is proposing to retain some discretion in when it would accept 
updated capital information for this purpose. For example, NSCC may 
require a Member to provide documentation of the circumstances that 
caused a change in capital information, and if adequate evidence is not 
available or NSCC does not believe the evidence sufficiently verifies 
that the Member's capital position has changed, NSCC would continue to 
calculate the ECP charge for that Member based on the prior capital 
information available to NSCC until the next financial reporting or 
financial statements are delivered. NSCC believes it is appropriate to 
retain some discretion to allow NSCC to determine if updated capital 
information is adequately verified before it agrees to rely on that 
information for this calculation. NSCC believes the proposal to 
disclose that Members would have the opportunity to provide updated 
capital information to NSCC to be used in an ECP charge calculation 
would improve the transparency of the Rules despite NSCC's proposal to 
retain a certain level of discretion.
(vi) Proposed Changes to Procedure XV of the Rules
    The proposal would amend Section I(B)(2) of Procedure XV of the 
Rules to implement the proposed changes to the ECP charge. The proposed 
changes would organize this section into three subsections.
    The proposed subsections (a) and (b) would describe the calculation 
used to determine if an ECP charge may be applicable to a Member and, 
if an ECP charge is applicable, how that charge would be calculated. 
The revised description of these calculations would (i) replace the 
definition of Calculated Amount with Members' volatility charge, (ii) 
replace references to the capital amounts used in the calculation with 
the new defined terms for Net Capital and Equity Capital, and (iii) 
state that the Excess Capital Ratio used in calculating an ECP charge 
is set at a maximum of 2.0. The proposed change would also include a 
statement that the applicable capital amounts used in the calculation 
would be the amounts most recently reported to NSCC on Members' FOCUS 
Reports or Call Reports, as applicable, or other equivalent financial 
reporting submitted to NSCC pursuant to Section 2 of Rule 2B. The 
proposal would also state that NSCC may, in its sole discretion, accept 
updated capital amounts in calculating an ECP charge.

[[Page 75111]]

    The proposed subsection (c) would describe NSCC's discretion to 
waive the ECP charge in certain defined circumstances, the information 
NSCC would consider in deciding to apply this discretion and the 
governance around this decision.
(vii) Impact Study Results
    NSCC has provided the Commission with the results of an impact 
study that reviewed the potential impacts of the proposal during the 
period of June 1, 2020 through December 31, 2021. The study showed that 
the proposed enhancement would have reduced the number of ECP charges 
that would have been triggered by the calculation by 65 percent, from 
347 ECP charges triggered for 19 Members to 122 ECP charges triggered 
for 14 Members. The total aggregate amount that would have been 
triggered by the proposed calculation if the proposal was effective 
during that time would have been reduced from $51.31 billion (the 
actual total amount of ECP charges triggered by the current calculation 
during that period) to approximately $17.44 billion (the total amount 
of ECP charges that would have been triggered during that time by the 
proposed calculation). The average amount that would have been 
calculated for each Member would have been reduced from $147.9 million 
to approximately $143.0 million. The study showed that the proposal 
would have had no impact to NSCC's overall, or Member-level, end-of-day 
Clearing Fund Requirement backtesting coverage.
    Over the impact study period, NSCC waived and adjusted calculated 
ECP charges by $38.80 billion. NSCC waived a total of 33 ECP charges 
that totaled approximately $26.12 billion. If the proposal had been in 
place at that time, 14 of these charges would have been collected from 
Members (although the amount would have been reduced), totaling $6.46 
billion, 14 charges would not have been triggered as the calculated ECP 
ratio was below 1.0, and NSCC would have waived 5 of the ECP charges, 
mainly following receipt of updated financial information. NSCC 
adjusted the amount of 16 ECP charges by a total of approximately 
$12.69 billion. If the proposal had been in place at that time, 7 of 
these charges would have been still collected, totaling $6.48 billion, 
and 9 charges would not have been triggered as the calculated ECP ratio 
was below 1.0.
(viii) Implementation Timeframe
    NSCC would implement the proposed changes no later than 30 days 
after the approval of the proposed rule change by the Commission. NSCC 
would announce the effective date of the proposed changes by Important 
Notice posted to its website.
2. Statutory Basis
    NSCC believes the proposed rule change is consistent with the 
requirements of the Act, and the rules and regulations thereunder 
applicable to a registered clearing agency. In particular, NSCC 
believes the proposed rule change is consistent with Section 
17A(b)(3)(F) of the Act,\38\ and Rules 17Ad-22(e)(4)(i), (e)(6)(i) and 
(e)(23)(ii), each promulgated under the Act,\39\ for the reasons 
described below.
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 78q-1(b)(3)(F).
    \39\ 17 CFR 240.17Ad-22(e)(4)(i), (e)(6)(i) and (e)(23)(ii).
---------------------------------------------------------------------------

    Section 17A(b)(3)(F) of the Act requires that the rules of NSCC be 
designed to, among other things, promote the prompt and accurate 
clearance and settlement of securities transactions and 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.\40\
---------------------------------------------------------------------------

    \40\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    NSCC believes the proposed changes are consistent with the 
requirements of Section 17A(b)(3)(F) of the Act because such changes 
enhance the effectiveness of the ECP charge by (1) replacing the 
Calculated Amount with a Member's volatility component, (2) replacing 
excess net capital with net capital for broker-dealer Members and using 
equity capital for all other Members, and (3) establishing a cap for 
the Excess Capital Ratio. As described above, NSCC believes these 
proposed changes would create a simpler, clearer calculation of the ECP 
charge that is based on more consistent metrics, while allowing NSCC to 
continue to effectively address the heightened default risks presented 
by Members that operate at lower capital levels.
    The Clearing Fund is a key tool that NSCC uses to mitigate 
potential losses to NSCC associated with liquidating a Member's 
portfolio in the event of Member default. Each of the proposed 
enhancements described above are designed to collectively improve 
NSCC's ability to collect amounts that reflect the risks posed by its 
Members. The proposal to enhance the calculation of the ECP charge by 
replacing the Calculated Amounts with Members' volatility charges would 
make the calculation clearer and more predictable to Members. The 
proposal to use net capital for broker-dealer Members and equity 
capital for all other Members in the calculation of the ECP charge 
would result in a more consistent calculation across different types of 
Members. The proposal to cap the Excess Capital Ratio at 2.0 would 
allow NSCC to appropriately address the risks it faces without imposing 
an overly burdensome ECP charge and would reduce the circumstances in 
which NSCC may waive the charge, resulting in a more transparent 
margining methodology.
    Together, by improving the consistency and predictability of the 
ECP charge, the proposed enhancements would also improve NSCC's ability 
to collect amounts that reflect the risks posed by its Members such 
that, in the event of Member default, NSCC's operations would not be 
disrupted, and non-defaulting Members would not be exposed to losses 
they cannot anticipate or control. In this way, the proposed rule 
change is designed to assure the safeguarding of securities and funds 
which are in the custody or control of NSCC or for which it is 
responsible, consistent with Section 17A(b)(3)(F) of the Act.\41\
---------------------------------------------------------------------------

    \41\ Id.
---------------------------------------------------------------------------

    The proposed changes are also designed to improve the transparency 
of the Rules regarding the ECP charge, for example, by introducing new 
defined terms regarding the capital amounts used in the charge and by 
clarifying the exigent circumstances in which NSCC may waive the 
charge. By enhancing the clarity and transparency of the Rules, the 
proposed changes would allow Members to better anticipate their margin 
charges, which would allow them to more efficiently and effectively 
conduct their business in accordance with the Rules. In this way, NSCC 
believes the proposed changes would promote the prompt and accurate 
clearance and settlement of securities transactions, consistent with 
Section 17A(b)(3)(F) of the Act.\42\
---------------------------------------------------------------------------

    \42\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(4)(i) under the Act requires that NSCC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to effectively identify, measure, monitor, and 
manage its credit exposures to participants and those arising from its 
payment, clearing, and settlement processes, including by maintaining 
sufficient financial resources to cover its credit exposure to each 
participant fully with a high degree of confidence.\43\
---------------------------------------------------------------------------

    \43\ 17 CFR 240.17Ad-22(e)(4)(i).
---------------------------------------------------------------------------

    As described above, NSCC believes the proposed rule change would 
enable NSCC to better identify, measure, monitor, and, through the 
collection of Members' Required Fund Deposits,

[[Page 75112]]

manage its credit exposures to Members by maintaining sufficient 
resources to cover those credit exposures fully with a high degree of 
confidence. Specifically, NSCC believes that the proposed enhancements 
to the calculation of the ECP charge to use the volatility charge 
rather than the Calculated Amount, and to use net capital and equity 
capital, as appropriate, would collectively make the calculation 
clearer and more predictable to Members. The proposal to use net 
capital rather than excess net capital for broker-dealer Members, and 
equity capital for all other Members, would also result in a more 
consistent calculation across different types of Members. Additionally, 
the proposal to cap the Excess Capital Ratio at 2.0 would allow NSCC to 
appropriately address the risks it faces without imposing an overly 
burdensome ECP charge and would reduce the circumstances in which NSCC 
may waive the charge, resulting in a more transparent margining 
methodology. Finally, the proposed change to clarify NSCC's discretion 
to waive the ECP charge would enable NSCC to better identify, measure, 
monitor, and manage its credit exposures to Members by permitting NSCC 
to determine, in certain exigent circumstances, when it is necessary to 
collect an ECP charge and when it is appropriate to waive an ECP 
charge.
    Overall, NSCC believes the proposal would improve the clarity and 
predictability of the ECP charge and, in this way, would enhance NSCC's 
ability to effectively identify, measure and monitor its credit 
exposures, and would enhance NSCC's ability to maintain sufficient 
financial resources to cover NSCC's credit exposure to each participant 
fully with a high degree of confidence. As such, NSCC believes the 
proposed rule change is consistent with Rule 17Ad-22(e)(4)(i) under the 
Act.\44\
---------------------------------------------------------------------------

    \44\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(6)(i) under the Act requires that NSCC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to cover its credit exposures to its participants 
by establishing a risk-based margin system that, at a minimum, 
considers, and produces margin levels commensurate with, the risks and 
particular attributes of each relevant product, portfolio, and 
market.\45\
---------------------------------------------------------------------------

    \45\ 17 CFR 240.17Ad-22(e)(6)(i).
---------------------------------------------------------------------------

    The Required Fund Deposits are made up of risk-based components (as 
margin) that are calculated and assessed daily to limit NSCC's 
exposures to Members. NSCC's proposed changes to use the volatility 
charge rather than the Calculated Amount, and to use net capital and 
equity capital, as appropriate, in the calculation of the ECP charge 
would collectively make the calculation clearer and more predictable to 
Members, while continuing to apply an appropriate risk-based charge 
designed to mitigate the risks presented to NSCC. Similarly, the 
proposal to cap the Excess Capital Ratio at 2.0 would allow NSCC to 
appropriately address the risks it faces without imposing an overly 
burdensome ECP charge and would reduce the circumstances in which NSCC 
may waive the charge, resulting in a more transparent margining 
methodology. Finally, the proposed rule change would clarify the 
exigent circumstances when NSCC may determine that it is appropriate to 
waive the ECP charge. Overall, these proposed changes would improve the 
effectiveness of the calculation of the ECP charge and, therefore, 
allow NSCC to more effectively address the increased default risks 
presented by Members that operate with lower capital levels relative to 
their margin requirements. In this way, the proposed changes enhance 
the ability of the ECP charge to produce margin levels commensurate 
with the risks NSCC faces related to its Members' operating capital 
levels. Therefore, NSCC believes the proposed rule change is consistent 
with Rule 17Ad-22(e)(6)(i) under the Act.\46\
---------------------------------------------------------------------------

    \46\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(23)(ii) under the Act requires that NSCC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to provide for providing sufficient information to 
enable participants to identify and evaluate the risks, fees, and other 
material costs they incur by participating in NSCC.\47\ NSCC is 
proposing to improve the clarity and transparency of the Rules related 
to its calculation of the ECP charge in a number of ways described in 
this filing. The proposed changes would clarify the description of the 
capital amounts that NSCC uses in the calculation of the ECP charge by 
adopting new defined terms, clarify NSCC's discretion to waive the 
charge, and provide that NSCC may calculate the charge based on updated 
capital information. Additionally, as described above, the proposed 
changes to use the volatility charge rather than the Calculated Amount, 
and to use net capital and equity capital, as appropriate, in the 
calculation of the ECP charge, would collectively make the calculation 
clearer and more predictable to Members. Finally, the proposed rule 
change would provide clarity and transparency around the circumstances 
in which NSCC may waive the ECP charge, the information NSCC would 
consider in making this determination and the governance around such a 
decision. Through these proposed amendments to the Rules, the proposal 
would assist NSCC in providing its Members with sufficient information 
to identify and evaluate the risks and costs, in the form of Required 
Fund Deposits to the Clearing Fund, that they incur by participating in 
NSCC. In this way, NSCC believes the proposed changes are consistent 
with Rule 17Ad-22(e)(23)(ii) under the Act.\48\
---------------------------------------------------------------------------

    \47\ 17 CFR 240.17Ad-22(e)(23)(ii).
    \48\ Id.
---------------------------------------------------------------------------

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

    NSCC does not believe the proposed rule change to enhance the 
calculation of the ECP charge would impact competition because the 
proposed changes are designed to create a clearer and simpler 
calculation that is based on more consistent metrics and is likely to 
result in lower and less frequent ECP charges than are applied under 
the current methodology. More specifically, the replacement of the 
Calculated Amount with the volatility charge, which is currently a 
portion of the Calculated Amount, when used in the calculation to 
determine if an ECP charge is applicable, is likely to result in fewer 
triggered ECP charges, as evidenced by the impact study referenced 
above. Additionally, the replacement of excess net capital with net 
capital for broker-dealer Members, and using equity capital for all 
other Members, would create more consistent calculations of the ECP 
charge across types of Members, reducing any burden on competition that 
the existing calculation could have presented. Finally, the proposal to 
cap the Excess Capital Ratio to 2.0 in the calculation of the ECP 
charge would limit the total amount a Member could be charged, and 
would provide all Members with more certainty and transparency into 
their potential margin requirements.
    Therefore, by creating a simpler and clearer calculation that uses 
more consistent metrics, the proposals would improve NSCC's ability to 
apply the ECP charge more consistently across its Members and reduce 
the impact this charge could have on competition. As noted above, in 
the impact study results, the proposed changes are also expected

[[Page 75113]]

to result in fewer and lower ECP charges.
    Further, NSCC does not believe the proposed rule change to improve 
the clarity and predictability of the calculation of the ECP charge 
would impact competition because this proposed change would not impact 
the calculation of Members' Required Fund Deposits. Therefore, this 
proposed change would not affect NSCC's operations or the rights and 
obligations of membership. As such, NSCC believes the proposed rule 
change to improve the transparency of the Rules would not have any 
impact on competition.

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

    NSCC has not received or solicited any written comments relating to 
this proposal. If any written comments are received, they will be 
publicly filed as an Exhibit 2 to this filing, as required by Form 19b-
4 and the General Instructions thereto.
    Persons submitting comments are cautioned that, according to 
Section IV (Solicitation of Comments) of the Exhibit 1A in the General 
Instructions to Form 19b-4, the Commission does not edit personal 
identifying information from comment submissions. Commenters should 
submit only information that they wish to make available publicly, 
including their name, email address, and any other identifying 
information.
    All prospective commenters should follow the Commission's 
instructions on how to submit comments, available at https://www.sec.gov/regulatory-actions/how-to-submit-comments. General 
questions regarding the rule filing process or logistical questions 
regarding this filing should be directed to the Main Office of the 
Commission's Division of Trading and Markets at 
[email protected] or 202-551-5777.
    NSCC reserves the right to not respond to any comments received.

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

    Section 19(b)(2) of the Act \49\ provides that proceedings to 
determine whether to approve or disapprove a proposed rule change must 
be concluded within 180 days of the date of publication of notice of 
filing of the proposed rule change. The time for conclusion of the 
proceedings may be extended for up to 60 days if the Commission 
determines that a longer period is appropriate and publishes the 
reasons for such determination.\50\ The 180th day after publication of 
the Notice in the Federal Register is December 5, 2022.
---------------------------------------------------------------------------

    \49\ 15 U.S.C. 78s(b)(2).
    \50\ 15 U.S.C. 78s(b)(2)(B)(ii)(II).
---------------------------------------------------------------------------

    The Commission is extending the period for Commission action on the 
Proposed Rule Change. The Commission finds that it is appropriate to 
designate a longer period within which to take action on the Proposed 
Rule Change so that the Commission has sufficient time to consider the 
issues raised by the Proposed Rule Change and to take action on the 
Proposed Rule Change. Accordingly, pursuant to Section 
19(b)(2)(B)(ii)(II) of the Act,\51\ the Commission designates February 
3, 2023, as the date by which the Commission should either approve or 
disapprove the Proposed Rule Change SR-NSCC-2022-005.
---------------------------------------------------------------------------

    \51\ Id.
---------------------------------------------------------------------------

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-NSCC-2022-005 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NSCC-2022-005. 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 the filing also will be available for inspection 
and copying at the principal office of NSCC and on DTCC's website 
(http://dtcc.com/legal/sec-rulefilings.aspx). 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-NSCC-2022-005 and should be submitted on 
or before December 22, 2022. Any person who wishes to file a rebuttal 
to any other person's submission must file that rebuttal on or before 
December 28, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\52\
---------------------------------------------------------------------------

    \52\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2022-26535 Filed 12-6-22; 8:45 am]
BILLING CODE 8011-01-P


