[Federal Register Volume 85, Number 144 (Monday, July 27, 2020)]
[Notices]
[Pages 45263-45267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16158]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-89361; File No. SR-DTC-2020-010]
Self-Regulatory Organizations; The Depository Trust Company;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
To Revise the Clearing Agency Policy on Capital Requirements
July 21, 2020.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 15, 2020, The Depository Trust Company (``DTC'') filed with the
Securities and Exchange Commission (``Commission'') the proposed rule
change as described in Items I, II and III below, which Items have been
prepared by the clearing agency. DTC filed the proposed rule change
pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(3)
thereunder.\4\ The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ 15 U.S.C. 78s(b)(3)(A).
\4\ 17 CFR 240.19b-4(f)(3).
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I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change
The proposed rule change consists of amendments to the Clearing
Agency Policy on Capital Requirements (``Capital Policy'' or
``Policy'') of DTC and its affiliates, National Securities Clearing
Corporation (``NSCC'') and Fixed Income Clearing Corporation (``FICC,''
and together with DTC and NSCC, the ``Clearing Agencies''). In
particular, the proposed revisions to the Capital Policy would (1)
update the frequency of the calculation of the Total Capital
Requirement (as defined below and in the Policy) to align with the
Clearing Agencies' quarterly financial statements; (2) replace the
description of the calculation of the Recovery/Wind-down Capital
Requirement (as defined below and in the Policy) with a reference to
the Clearing Agencies' Recovery & Wind-down Plans \5\ to eliminate
redundancy between these documents; (3) revise the description of the
additional liquid net assets (``LNA'') funded by equity, referred to as
the ``Buffer'' to provide the Clearing Agencies with flexibility in
calculating this discretionary amount; and (4) make other updates and
revisions to the Capital Policy in order to simplify the language and
improve the clarity of the Policy, as described in greater detail
below.
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\5\ See Securities Exchange Act Release Nos. 83972 (August 28,
2018), 83 FR 44964 (September 4, 2018) (SR-DTC-2017-021); 83953
(August 27, 2018), 83 FR 44381 (August 30, 2018) (SR-DTC-2017-803);
83973 (August 28, 2018), 83 FR 44942 (September 4, 2018) (SR-FICC-
2017-021); 83954 (August 27, 2018), 83 FR 44361 (August 30, 2018)
(SR-FICC-2017-805); 83974 (August 28, 2018), 83 FR 44988 (September
4, 2018) (SR-NSCC-2017-017); 83955 (August 27, 2018), 83 FR 44340
(August 30, 2018) (SR-NSCC-2017-805).
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II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
In its filing with the Commission, the clearing agency included
statements concerning the purpose of and basis for the proposed rule
change and discussed any comments it received on the proposed rule
change. The text of these statements may be examined at the places
specified in Item IV below. The clearing agency has prepared summaries,
set forth in sections A, B, and C below, of the most significant
aspects of such statements.
(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
1. Purpose
The Clearing Agencies are proposing to revise the Capital Policy,
which was adopted by the Clearing Agencies in July 2017 \6\ and is
maintained by the Clearing Agencies in compliance with Rule 17Ad-
22(e)(15) under the Act,\7\ in order to (1) update the frequency of the
calculation of the Total Capital Requirement to align with the Clearing
Agencies' quarterly financial statements; (2) replace the description
of the calculation of the Recovery/Wind-down Capital Requirement with a
reference to the Clearing Agencies' Recovery & Wind-down Plans to
eliminate redundancy between these documents; (3) revise the
description of the additional LNA funded by equity, referred to as the
``Buffer'' to provide the Clearing Agencies with flexibility in
calculating this discretionary amount; and (4) make other updates and
revisions to the Capital Policy in order to simplify the language and
improve the clarity of the Policy, as described in greater detail
below.
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\6\ See Securities Exchange Act Release No. 81105 (July 7,
2017), 82 FR 32399 (July 13, 2017) (SR-DTC-2017-003, SR-FICC-2017-
007, SR-NSCC-2017-004).
\7\ 17 CFR 240.17Ad-22(e)(15).
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Overview of the Capital Policy
The Capital Policy sets forth the manner in which each Clearing
Agency
[[Page 45264]]
identifies, monitors, and manages its general business risk with
respect to the requirement to hold sufficient LNA funded by equity to
cover potential general business losses so the Clearing Agency can
continue operations and services as a going concern if such losses
materialize.\8\ The amount of LNA funded by equity to be held by each
of the Clearing Agencies for this purpose is defined in the Policy as
the General Business Risk Capital Requirement. The Policy provides that
the General Business Risk Requirement is calculated for each Clearing
Agency as the greatest of three separate calculations--(1) an amount
based on that Clearing Agency's general business risk profile (``Risk-
Based Capital Requirement''), (2) an amount based on the time estimated
to execute a recovery or orderly wind-down of the critical operations
of that Clearing Agency (``Recovery/Wind-down Capital Requirement''),
and (3) an amount based on an analysis of that Clearing Agency's
estimated operating expenses for a six month period (``Operating
Expense Capital Requirement''). The General Business Risk Capital
Requirement for each Clearing Agency is determined as the greatest of
these calculations.
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\8\ Supra note 6.
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The Capital Policy also addresses how each Clearing Agency
maintains an amount of LNA funded by equity as a part of its management
of credit risk \9\ pursuant to its respective rules,\10\ referred to as
the ``Corporate Contribution.'' These resources are maintained to
address losses due to a participant default and are held in addition to
the Clearing Agencies' General Business Risk Capital Requirement. The
Capital Policy describes how each Clearing Agency's General Business
Risk Capital Requirement and Corporate Contribution fit within the
Clearing Agencies' Capital Framework, where the ``Total Capital
Requirement'' of each Clearing Agency is calculated as the sum of its
General Business Risk Capital Requirement and Corporate Contribution.
Finally, the Policy provides a plan for the replenishment of capital
through the Clearing Agency Capital Replenishment Plan.
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\9\ LNA funded by equity held as the Clearing Agencies'
Corporate Contribution is held in addition to resources held by the
Clearing Agencies for credit risk in compliance with Rule 17Ad-
22(e)(4) under the Act, and in addition to resources held by the
Clearing Agencies for liquidity risk in compliance with Rule 17Ad-
22(e)(7). 17 CFR 240.17Ad-22(e)(4), (7).
\10\ See Rule 4 of the Rules, By-laws and Organizational
Certificate of DTC (``DTC Rules''), Rule 4 of the Rulebook of the
Government Securities Division of FICC (``GSD Rules''), Rule 4 of
the Clearing Rules of the Mortgage-Backed Securities Division of
FICC (``MBSD Rules''), and Rule 4 of the Rules & Procedures of NSCC
(``NSCC Rules,'' and together with the DTC Rules, GSD Rules and MBSD
Rules, the ``Clearing Agencies' Rules'' or ``Rules''), available at
http://dtcc.com/legal/rules-and-procedures.
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Proposed Revisions to the Capital Policy
The Capital Policy is reviewed and approved by the Boards annually.
In connection with the most recent annual review of the Policy, the
Clearing Agencies are proposing revisions and updates, described in
greater detail below. These proposed changes are designed to update the
Capital Policy and enhance the clarity of the Policy to ensure that it
continues to operate as intended.
1. Update Frequency of Calculation of Total Capital Requirement
The Clearing Agencies are proposing to update the Capital Policy to
change the frequency of the calculation of the Total Capital
Requirement to occur quarterly, and clarify that the calculation of the
Total Capital Requirement would use the most recently completed
calculations of the General Business Risk Capital Requirement and the
Corporate Contribution. In connection with this proposed change, the
Capital Policy would also be amended to remove references to the timing
of the other calculations.
As described above, the Total Capital Requirement is the sum of the
General Business Risk Capital Requirement and the Corporate
Contribution; and the General Business Risk Capital Requirement is the
greatest of the Risk-Based Capital Requirement, Recovery/Wind-down
Capital Requirement and the Operating Expense Capital Requirement.
Currently the Capital Policy states that the Total Capital Requirement
is calculated monthly. The Capital Policy also describes the frequency
of each of the other calculations that are used in calculating the
Total Capital Requirement, which occur at different intervals
throughout the year.
The Clearing Agencies are proposing to update the Capital Policy to
state that the Total Capital Requirement will be calculated quarterly,
using the most recently calculated components. This proposed change
would align the timing of this calculation with the timing of each of
the Clearing Agencies' quarterly financial statements, where the
results of this calculation is reported. While the calculation would
occur less frequently than it is currently conducted, the Total Capital
Requirement amount does not change materially from month to month.\11\
Therefore, the Clearing Agencies believe the calculation would still be
completed on an appropriate frequency.
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\11\ The Total Capital Requirement amount has been reported in
footnote 9 to the Clearing Agencies' financial statements since the
third quarter of 2018, available at https://www.dtcc.com/legal/financial-statements.
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The proposed change would also simplify the Capital Policy by
removing the reference to the frequency of each of the other
calculations. Each of the other calculations that determine the Total
Capital Requirement are completed at different frequencies throughout
the year, as currently described in the Capital Policy, and all occur
at least annually. The proposed change would state that the most recent
results of these calculations would be used in the quarterly
calculation of the Total Capital Requirement. These calculations have
different purposes and provide the Clearing Agencies with different
measures. Therefore, these calculations are completed at different
frequencies during the year, generally timed to occur when updated
information is available. By removing the frequency of these
calculations from the Capital Policy, and only specifying the frequency
of the Total Capital Requirement calculation, which would use the most
recent results of these underlying calculations, the proposed change
would simplify the Policy and would provide the Clearing Agencies with
flexibility to adjust the timing of these calculations as necessary.
In order to reflect this change, the Clearing Agencies are
proposing to update Section 4 of the Capital Policy to state that the
Total Capital Requirement would be calculated quarterly, using the most
recent calculations of the General Business Risk Capital Requirement
and Corporate Contribution. The proposed changes would also remove
statements in Sections 5, 6, 6.1.2 and 6.3 regarding the timing of the
underlying calculations.
2. Update Description of Recovery/Wind-Down Capital Requirement To
Refer to the Recovery & Wind-Down Plans of the Clearing Agencies
The Clearing Agencies are proposing to amend the Capital Policy
with respect to the Recovery/Wind-down Capital Requirement to update
references to the Recovery & Wind-down Plans of the Clearing Agencies.
In connection with this change, the Capital Policy would also be
updated to clarify the role of management in advising the Boards in
connection with their annual determination of the Recovery/Wind-down
Capital Requirement.
[[Page 45265]]
First, the proposed changes would replace descriptions of the
calculation of the Recovery/Wind-down Capital Requirement with
references to the Clearing Agencies' Recovery & Wind-down Plans, which
have been adopted by the Clearing Agencies and include detailed
descriptions of the calculation of this amount.\12\ The Recovery/Wind-
down Capital Requirement is an amount based on the time estimated to
execute a recovery or orderly wind-down of the critical operations of
that Clearing Agency and is used by the Clearing Agencies to determine
their General Business Risk Capital Requirement, as described above.
Each of the Clearing Agencies have adopted a Recovery & Wind-down Plan,
which provides plans for the recovery and orderly wind-down of each of
the Clearing Agencies necessitated by credit losses, liquidity
shortfalls, losses from general business risk, or any other losses.\13\
Section 8.7 of each of the Recovery & Wind-down Plans includes an
analysis of the calculation of the Recovery/Wind-down Capital
Requirement.
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\12\ Supra note 5.
\13\ Id.
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The Clearing Agencies believe their respective Recovery & Wind-down
Plans are the appropriate documents for the description of the
calculation of the Recovery/Wind-down Capital Requirement. The proposed
change would remove redundancy between these documents and minimize the
risk of inconsistency in this description.
In order to implement this change, the Clearing Agencies are
proposing to (1) revise the definition of Recovery/Wind-down Capital
Requirement in Section 2 of the Capital Policy to refer to the
description of this amount in the Recovery & Wind-down Plan of each
Clearing Agency; and (2) revise Section 6.2 of the Capital Policy to
remove the description of the calculation of the Recovery/Wind-down
Capital Requirement and replace it with a reference to this description
in the Recovery & Wind-down Plan of each of the Clearing Agencies.
Second, the proposed changes would clarify the role of management
with respect to the Boards' annual determination of the Recovery/Wind-
down Capital Requirement. Pursuant to the Clearing Agencies' Recovery &
Wind-down Plans, and in compliance with the requirements of Rule 17Ad-
22(e)(15)(ii) under the Act,\14\ the Boards are responsible for
determining the Recovery/Wind-down Capital Requirement for each
Clearing Agency on an annual basis.
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\14\ 17 CFR 240.17Ad-22(e)(15)(ii).
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The Treasury group of The Depository Trust & Clearing Corporation
(``DTCC Treasury group'') and members of management in other relevant
groups may provide the Boards with analyses and relevant data to
facilitate this determination. Therefore, the Clearing Agencies are
proposing to amend Section 6.2 of the Capital Policy to state that the
DTCC Treasury group and members of management in other relevant groups
may provide such information to the Boards.
3. Revise Description of Buffer Amount
The Clearing Agencies are proposing to amend the Capital Policy to
revise the description of the additional, discretionary amount of LNA
funded by equity held by the Clearing Agencies in addition to the Total
Capital Requirement, which is referred to as a ``Buffer.'' Currently,
the Capital Policy states that the amount of LNA funded by equity held
as Buffer would be periodically assessed by the DTCC Treasury group and
would generally equal approximately four to six (4-6) months of
operating expenses for the respective Clearing Agency. The Clearing
Agencies are proposing to make two changes to the description of the
Buffer in the Capital Policy, described below.
First, the Clearing Agencies are proposing to remove the
specificity regarding how the Buffer amount held by the Clearing
Agencies is measured. This proposed change would provide the Clearing
Agencies with flexibility to manage capital when determining the
appropriate amount of LNA funded by equity that they would each hold in
addition to the Total Capital Requirement. The Clearing Agencies would
implement this proposed change by amending the description of Buffer in
Section 4 of the Capital Policy to remove the reference to four to six
(4-6) months of operating expenses, and state simply that this amount
is determined based on various factors, including historical
fluctuations of LNA and estimates of potential losses from general
business risk.
Second, the Clearing Agencies are proposing to amend Section 4 of
the Capital Policy to clarify that the Buffer will be calculated at
least annually. Currently the Capital Policy states that the Buffer
will be calculated periodically. This proposed change would provide
more specificity regarding the frequency of this calculation.
4. Technical Revisions and Clarifications
In addition to the proposed changes described above, the Clearing
Agencies are also proposing the following technical revisions to the
Capital Policy.
First, the proposed changes would update the description of the
Corporate Contribution in Figure 1 of Section 4 of the Capital Policy.
The proposed change would replace the current description of this
amount with a reference to the Clearing Agencies' Rules, where this
amount is defined. The proposed change would align the description in
Figure 1 of Section 4 with the description of the Corporate
Contribution in Section 5 of the Capital Policy, which also describes
the Corporate Contribution by referring to the Clearing Agencies'
Rules.
Second, the proposed changes would revise Section 6.3 of the
Capital Policy to use the defined term for Operating Expense Capital
Requirement, which is defined in the Glossary of Key Terms in Section 2
of the Capital Policy.
Third, the proposed changes would also revise Section 6.3 to
clarify that the data used to estimate prospective Clearing Agency
expenses in calculating the Operating Expense Capital Requirement comes
from a budget developed by the Financial Planning & Analysis department
for the respective Clearing Agencies.
Finally, the proposed changes would update Section 7.2 of the
Capital Policy, which describes where the Clearing Agencies report
their assessment of LNA funded by equity against the Total Capital
Requirement. The proposed change would state that, in addition to
internal reporting, this assessment is also reported publicly in the
Clearing Agencies' financial statements.
Each of these proposed changes would make technical drafting
corrections or clarifications to the existing descriptions in the
Capital Policy. While these proposed changes would not substantively
alter the descriptions in the Capital Policy, they would improve the
clarity of the Policy.
2. Statutory Basis
The Clearing Agencies believe that the proposed rule changes to the
Capital Policy are consistent with the requirements of the Act, and the
rules and regulations thereunder applicable to a registered clearing
agency. In particular, the Clearing Agencies believe that the proposed
changes are consistent with Section 17A(b)(3)(F) of the Act \15\
[[Page 45266]]
and Rule 17Ad-22(e)(15) under the Act,\16\ for the reasons described
below.
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\15\ 15 U.S.C. 78q-1(b)(3)(F).
\16\ 17 CFR 240.17Ad-22(e)(15).
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Section 17A(b)(3)(F) of the Act requires, in part, that the rules
of the Clearing Agencies be designed to 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 Agencies or for which they are responsible.\17\
The Capital Policy is designed to ensure that each of the Clearing
Agencies hold sufficient LNA funded by equity to cover potential
general business losses so that they can continue the prompt and
accurate clearance and settlement of securities transactions, and can
continue to assure the safeguarding of securities and funds which are
in their custody or control or for which they are responsible if those
losses materialize.
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\17\ 15 U.S.C. 78q-1(b)(3)(F).
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The proposed changes described above would not materially alter how
the Capital Policy accomplishes this goal. The proposed changes would
update the frequency of the calculation of the amount of LNA funded by
equity held by the Clearing Agencies. Changing this frequency would not
alter the Clearing Agencies' ability to hold an amount needed to cover
potential general business losses, as the result of these calculations
do not currently change materially on a month to month basis. The
proposed change to refer to the Clearing Agencies' Recovery & Wind-down
Plans for the description of the Recovery/Wind-down Capital Requirement
would reduce the redundancy between the Policy and these plans, and
would not alter the calculation of this amount. The proposed change to
the description of the Buffer would provide the Clearing Agencies with
additional flexibility in calculating this amount, which is held in
addition to the amounts needed to meet compliance with their regulatory
requirements. Finally, the proposed technical revisions would simplify
and clarify the descriptions in the Policy, and would not alter the way
the Policy operates.
The proposed revisions would not materially change how the Policy
ensures that each of the Clearing Agencies hold sufficient LNA funded
by equity to cover potential general business losses but would allow
the Clearing Agencies to maintain this document to operate in the way
it was intended. Therefore, such proposed revisions would be consistent
with the requirements of Section 17A(b)(3)(F) of the Act.\18\
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\18\ Id.
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Rule 17Ad-22(e)(15) under the Act requires the Clearing Agencies to
establish, implement, maintain and enforce written policies and
procedures reasonably designed to identify, monitor, and manage their
respective general business risk and hold sufficient liquid net assets
funded by equity to cover potential general business losses so that the
Clearing Agencies can continue operations and services as a going
concern if those losses materialize.\19\ As originally implemented, the
Capital Policy was designed to meet the requirements of Rule 17Ad-
22(e)(15). For the reasons described above, the proposed revisions
would not materially alter how the Clearing Agencies comply with their
requirements under this rule. Therefore, the proposed changes would
allow the Clearing Agencies to maintain the Capital Policy in a way
that continues to be consistent with the requirements of Rule 17Ad-
22(e)(15) under the Act.\20\
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\19\ 17 CFR 240.17Ad-22(e)(15).
\20\ Id.
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(B) Clearing Agency's Statement on Burden on Competition
Each of the Clearing Agencies believes that none of the proposed
revisions to the Capital Policy would have any impact, or impose any
burden, on competition. The Policy is maintained by the Clearing
Agencies in order to satisfy their regulatory requirements and
generally reflect internal tools and procedures. Tools and procedures
that have a direct impact on the rights, responsibilities or
obligations of members or participants of the Clearing Agencies are
reflected in the Clearing Agencies' Rules. Accordingly, the Capital
Policy enhances the Clearing Agencies' regulatory compliance and
internal management and does not have any impact, or impose any burden,
on competition.
The proposed revisions would not effect any changes to the
fundamental purpose or materially impact the operation of the Capital
Policy. As such, the proposed changes also would not have any impact,
or impose any burden, on competition.
(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants, or Others
The Clearing Agencies have not solicited or received any written
comments relating to this proposal. The Clearing Agencies will notify
the Commission of any written comments received by the Clearing
Agencies.
III. Date of Effectiveness of the Proposed Rule Change, and Timing for
Commission Action
The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) \21\ of the Act and paragraph (f) \22\ of Rule 19b-4
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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\21\ 15 U.S.C 78s(b)(3)(A).
\22\ 17 CFR 240.19b-4(f).
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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-DTC-2020-010 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549.
All submissions should refer to File Number SR-DTC-2020-010. 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,
[[Page 45267]]
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 DTC and on DTCC's
website (http://dtcc.com/legal/sec-rule-filings.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-DTC-2020-010 and should be submitted on
or before August 17, 2020.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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\23\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-16158 Filed 7-24-20; 8:45 am]
BILLING CODE 8011-01-P