[Federal Register Volume 85, Number 158 (Friday, August 14, 2020)]
[Notices]
[Pages 49697-49701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17745]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-89515; File No. SR-OCC-2020-805]
Self-Regulatory Organizations; The Options Clearing Corporation;
Notice of Filing of Advance Notice Concerning Proposed Changes To
Enhance OCC's Stock Loan Close-Out Process
August 10, 2020.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, entitled Payment, Clearing
and Settlement Supervision Act of 2010 (``Clearing Supervision Act'')
\1\ and Rule 19b-4(n)(1)(i) \2\ under the Securities Exchange Act of
1934 (``Exchange Act''),\3\ notice is hereby given that on July 14,
2020, the Options Clearing Corporation (``OCC'') filed with the
Securities and Exchange Commission (``Commission'') an advance notice
as described in Items I, II and III below, which Items have been
prepared by OCC. The Commission is publishing this notice to solicit
comments on the advance notice from interested persons.
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\1\ 12 U.S.C. 5465(e)(1).
\2\ 17 CFR 240.19b-4(n)(1)(i).
\3\ 15 U.S.C. 78a et seq.
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I. Clearing Agency's Statement of the Terms of Substance of the Advance
Notice
This advance notice is submitted in in connection with proposed
changes to OCC Rules 2211 and 2211A, which concern the close-out of a
defaulting Hedge Clearing Member's or Market Loan Clearing Member's
(each a ``defaulting Clearing Member'') stock loan positions,
respectively, to require Lending Clearing Members or Borrowing Clearing
Members (each a ``non-defaulting Clearing Member'') whom OCC instructs
to buy-in or sell-out securities to execute such transactions and
provide OCC notice of such action by the settlement time for a Clearing
Member's obligations to OCC on the business day after OCC gives the
instruction.\4\ In addition, OCC proposes to amend Rules 2211 and 2211A
to provide that if a non-defaulting Clearing Member so instructed does
not execute the trades and provide notice by that time, OCC will
terminate the Stock Loan and effect settlement based upon the Marking
Price at the close of business on the day that OCC provided the
instruction. OCC submitted the proposed amendments to OCC's Rules in
Exhibit 5. Material proposed to be added to OCC's Rules as currently in
effect is marked by underlining and material proposed to be deleted is
marked with strikethrough text. All terms with initial capitalization
that are not otherwise defined herein have the same meaning as set
forth in the By-Laws and Rules.\5\
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\4\ ``Buy-in'' refers to a non-defaulting lender purchasing
replacement stock. ``Sell-out'' refers to a non-defaulting borrower
selling the loaned securities in order to recoup its collateral.
\5\ OCC's By-Laws and Rules can be found on OCC's public
website: http://optionsclearing.com/about/publications/bylaws.jsp.
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II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Advance Notice
In its filing with the Commission, OCC included statements
concerning the purpose of and basis for the advance notice and
discussed any comments it received on the advance notice. The text of
these statements may be examined at the places specified in Item IV
below. OCC has prepared summaries, set forth in sections A and B below,
of the most significant aspects of these statements.
(A) Clearing Agency's Statement on Comments on the Advance Notice
Received From Members, Participants or Others
Written comments were not and are not intended to be solicited with
respect to the advance notice and none have been received. OCC will
notify the Commission of any written comments received by OCC.
(B) Advance Notices Filed Pursuant to Section 806(e) of the Payment,
Clearing, and Settlement Supervision Act
Description of the Change
This advance notice concerns a change to OCC's operations to amend
OCC Rules 2211 and 2211A to ensure that OCC has authority and
operational capacity to take timely action to contain losses and
liquidity demands and continue to meet its obligations in the event of
a Clearing Member default by more closely aligning the close-out of
stock loan positions through buy-in and sell-out transactions with the
timing of an auction of a defaulting Clearing Member's other positions
and to ensure that the close-out of a defaulting Clearing Member's
stock loan positions by buy-in or sell-out transactions occurs within
OCC's two-day liquidation assumption. The proposed amendments to the
Rules are discussed in more detail below.
Background
OCC operates two programs in which it acts as a central
counterparty for stock loan transactions: (1) The Stock Loan/Hedge
Program and (2) Market Loan Program (collectively, the ``Stock Loan
Programs''). Stock Loan/Hedge Program transactions are initiated
directly between Clearing Members on a bilateral basis (i.e., ``broker-
to-broker'' model) and Market Loan Program transactions are initiated
on either a broker-to-broker basis or anonymously through the matching
of bids and offers (i.e., ``market'' model). Both programs rely on The
Depository Trust Company (``DTC'') to facilitate the settlement of
equity securities and cash collateral between members.
[[Page 49698]]
Under the Stock Loan Programs, OCC novates the transaction and
becomes the lender to the Borrowing Clearing Member and the borrower to
the Lending Clearing Member upon receiving reports from DTC showing
completed Stock Loans, provided that OCC has not rejected such
transactions.\6\ As the principal counterparty to the Borrowing and
Lending Clearing Members, OCC guarantees the return of the full value
of cash collateral to a Borrowing Clearing Member and guarantees the
return of the Loaned Stock (or value of that Loaned Stock) to the
Lending Clearing Member.\7\ After novation, as part of the guaranty,
OCC makes Mark-to-Market Payments for all cleared Stock Loans on a
daily basis to collateralize all loans to the negotiated levels.
Settlements generally are combined and netted against other OCC
settlement obligations in a Clearing Member's account, including trade
premiums and margin deficits. Clearing Member open positions in the
Stock Loan Programs are factored into the Clearing Member's overall
Margin \8\ and Clearing Fund contribution requirements.\9\
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\6\ See OCC Rules 2202(b) and 2202A(b). OCC receives DTC
confirmation upon settlement of delivery versus payment. See
generally DTC Settlement Services Guide, available at http://
www.dtcc.com/~/media/Files/Downloads/legal/service-guides/
Settlement.pdf (discussing the operation of the ``Option Exercise &
Assignment Loan Program'').
\7\ Under the Market Loan Program, OCC also provides a limited
guaranty of dividend and rebate payments.
\8\ See OCC Rules 601 and 2203.
\9\ See OCC Rule 1001.
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In the event a Clearing Member defaults, OCC closes the defaulting
Clearing Member's positions, liquidates collateral, and deposits any
proceeds into a Liquidating Settlement Account. The close-out of
positions other than stock loan positions would typically be effected
by an auction that would occur on the morning prior to market opening
on the day after a default occurs.\10\ In contrast, OCC's Rules allow
OCC to close stock loan positions by instructing the non-defaulting
Clearing Members who are parties to the defaulting Clearing Member's
loans to sell-out or buy-in securities as applicable.\11\ A non-
defaulting Clearing Member is required to provide OCC with evidence of
the execution price at which each transaction occurred. This execution
price is used as the settlement price to facilitate the final mark
between the non-defaulting Clearing Member and the Liquidating
Settlement Account. Currently, non-defaulting Clearing Members are
required to buy-in or sell-out the relevant securities by the close of
business on the stock loan business day after OCC's instruction.\12\ If
a non-defaulting Clearing Member fails to execute such buy-in or sell-
out, OCC would terminate the stock loan position and mark the
transaction based upon the Marking Price at close of business on the
business day after OCC's instruction.\13\
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\10\ While this timing describes the typical scenario, the
timing of an auction is not set by regulation or OCC's By-Laws or
Rules, which allows for an auction on an accelerated timeline, if
needed. In addition, OCC's Rules also allow for the close-out of a
defaulting Clearing Member's portfolio by open market transactions
and hedging transactions to reduce the risks to OCC associated with
holding open positions. See OCC Rule 1106.
\11\ OCC may also effect the close-out of stock loan positions
by re-matching Matched-Book Positions, an auction, or in such other
manner as OCC determines to be the most orderly manner practicable
under the circumstances. OCC Rules 2210(b) and 2210A(b).
\12\ See OCC Rules 2211 (Suspension of Hedge Clearing Members--
Buy-In and Sell-Out Procedures) and 2211A (Suspension of Market Loan
Clearing Members--Buy-In and Sell-Out Procedures).
\13\ Id.
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The buy-in/sell-out process for stock loan positions has
significant benefits as it distributes the liquidity demands across
multiple counterparties, each of whom effectively act as independent
liquidating agents. The buy-in/sell-out process also aligns the
liquidity demands necessary to facilitate an unwind with the Clearing
Member receiving proceeds from the origination of the loan and
currently in possession of the collateral. However, the difference in
timing between an auction and the buy-in/sell-out process presents
credit and liquidity risks for OCC. Specifically, because OCC's
portfolio-based margin methodology combines stock loan positions with
options, futures, and margin collateral when determining margin
requirements, the difference in timing could expose OCC to increased
credit and liquidity risk should the price of the stock loan positions
move unfavorably between the time of auction and determination of the
final settlement price for remaining buy-in/sell-out transactions and
should that price differential exceed the amount of margin on deposit
for such positions.
Enhancement to Stock Loan Programs Close-Out Rules
In response to these concerns, OCC proposes to amend OCC Rules 2211
and 2211A to require buy-in or sell-out transactions to be complete by
the settlement time for a Clearing Member's obligations to OCC, defined
in Article I of the By-Laws,\14\ on the stock loan business day after
OCC gives non-defaulting Clearing Members the buy-in/sell-out
instruction. If a non-defaulting Clearing Member does not execute the
trades and provide notice by that time, OCC would terminate the Stock
Loan and effect settlement based upon the Marking Price at the close of
business the previous business day (i.e., the day that OCC provided the
instruction). This Marking Price (i.e., closing price) would be the
last settlement price captured in OCC's systems prior to the time by
which the non-defaulting Clearing Member was supposed to have taken
such actions.
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\14\ By-Law Article I, Section 1.S.(16) defines ``settlement
time'' with respect of a Clearing Member's obligations to OCC to
mean 9:00 a.m. Central Time.
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This proposed enhancement is designed to mitigate the risks
associated with the difference in timing between close-out of stock
loan positions and an auction for the remainder of defaulting Clearing
Member's portfolio. In the typical case, an auction to close positions
for other products would occur on the morning prior to market opening
on the day after a default event occurs. Accelerating the deadline for
buy-in or sell-out transactions to that morning--rather than the end of
the stock loan business day--would reduce credit and liquidity risks by
aligning liquidation timing across products more closely.
The proposed enhancement also is designed to ensure that the close-
out process for the Stock Loan Programs would occur in a manner
consistent with OCC's two-day liquidation assumption (which is
applicable to all products without differentiation). At the earliest, a
defaulting Clearing Member would have made its last margin payment at
the settlement time on the business day prior to default. When that
Clearing Member fails to make its margin or mark-to-market payments the
next morning, OCC would suspend it and typically would issue the buy-
in/sell-out instruction to non-defaulting Clearing Members. The
proposed requirement that non-defaulting Clearing Members execute buy-
in and sell-out transactions by the settlement time on the business day
after default ensures that close-out occurs in a manner consistent with
the two-day liquidation assumption.
OCC considered requiring non-defaulting Clearing Members to execute
buy-in or sell-out transactions by the end of the business day on the
same day as OCC's instruction but believes extending the process to the
following morning is the better option. In discussion with several
Clearing Members, they expressed a preference
[[Page 49699]]
for setting the deadline at 9:00 a.m. Central Time the following
business day because doing so would allow a non-defaulting Clearing
Member the opportunity to trade at market opening. OCC believes
allowing non-defaulting Clearing Members to trade at market opening the
following morning would provide additional time to execute the buy-in
and sell-out method in a manner consistent with OCC's two-day
liquidation assumption.\15\ OCC also presented the proposed change at a
meeting of its Financial Risk Advisory Council (``FRAC''), a working
group comprised of exchanges, Clearing Members and other market
participants.\16\ No participant objected to OCC's proposal to
accelerate the close-out timing. While questions were raised about the
proposal to use the Marking Price at the close of business the day
prior in the event a Clearing Member fails to act by the settlement
time the next day, OCC believes using the last Marking Price available
in its system prior to the time by which a Clearing Member is obligated
to take action is superior because OCC's automated systems are designed
to determine the Marking Price based on closing securities prices. The
manual processes that OCC would need to institute to pull pricing
information other than closing prices would make the stock loan close-
out process more susceptible to delay and errors.
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\15\ OCC is considering a proposal to move its settlement time
from 9:00 a.m. settlement time earlier in the day, in which case the
deadline for a non-defaulting Clearing Member instructed to buy-in
or sell-out would change to the new settlement time.
\16\ OCC submitted the relevant portions of the presentation
provided at the April 16, 2019 FRAC meeting in confidential Exhibit
3.
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Implementation Timeframe
OCC expects to implement the proposed changes within thirty (30)
days after the date that OCC receives all necessary regulatory
approvals for the proposed changes. OCC will announce the
implementation date of the proposed change by an Information Memorandum
posted to its public website at least one (1) weeks prior to
implementation.
Anticipated Effect on and Management of Risk
OCC believes that the proposed changes would reduce the nature and
level of risk presented by OCC because they would enhance the overall
resilience of OCC's Stock Loan Programs by enhancing the default
management processes for the Stock Loan Programs to mitigate the risks
associated with the buy-in/sell-out described above.
OCC proposes to amend OCC Rules 2211 and 2211A to require buy-in or
sell-out transactions to be complete by the settlement time for a
Clearing Member's obligations to OCC, defined in Article I of the By-
Laws,\17\ on the stock loan business day after OCC gives non-defaulting
Clearing Members the buy-in/sell-out instruction. If a non-defaulting
Clearing Member does not execute the trades and provide notice by that
time, OCC would terminate the Stock Loan and effect settlement based
upon the Marking Price at the close of business the previous business
day (i.e., the day that OCC provided the instruction).
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\17\ By-Law Article I, Section 1.S.(16) defines ``settlement
time'' with respect of a Clearing Member's obligations to OCC to
mean 9:00 a.m. Central Time.
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OCC believes the proposed changes help to mitigate the risks
associated with the difference in timing between close-out of stock
loan positions and an auction for the remainder of defaulting Clearing
Member's portfolio. In the typical case, an auction to close positions
for other products would occur on the morning prior to market opening
on the day after a default event occurs. Accelerating the deadline for
buy-in or sell-out transactions to that morning--rather than the end of
the stock loan business day--would reduce credit and liquidity risks by
aligning liquidation timing across products more closely. OCC also
believes the proposed changes helps to mitigate credit risks by
ensuring that the close-out process for the Stock Loan Programs would
occur in a manner consistent with OCC's two-day liquidation assumption
(which is applicable to all products without differentiation). In
addition, OCC believes using the last Marking Price available in its
system prior to the time by which a Clearing Member is obligated to
take action helps manage risk in situations where a Clearing Member
fails to take action because OCC's automated systems are designed to
determine the Marking Price based on closing securities prices. The
manual processes that OCC would need to institute to pull pricing
information other than closing prices would make the stock loan close-
out process more susceptible to delay and errors.
Consistency With the Clearing Supervision Act
The stated purpose of the Clearing Supervision Act is to mitigate
systemic risk in the financial system and promote financial stability
by, among other things, promoting uniform risk management standards for
systemically important financial market utilities and strengthening the
liquidity of systemically important financial market utilities.\18\
Section 805(a)(2) of the Clearing Supervision Act \19\ also authorizes
the Commission to prescribe risk management standards for the payment,
clearing and settlement activities of designated clearing entities,
like OCC, for which the Commission is the supervisory agency. Section
805(b) of the Clearing Supervision Act \20\ states that the objectives
and principles for risk management standards prescribed under Section
805(a) shall be to:
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\18\ 12 U.S.C. 5461(b).
\19\ 12 U.S.C. 5464(a)(2).
\20\ 12 U.S.C. 5464(b).
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Promote robust risk management;
promote safety and soundness;
reduce systemic risks; and
support the stability of the broader financial system.
The Commission has adopted risk management standards under Section
805(a)(2) of the Clearing Supervision Act and the Exchange Act in
furtherance of these objectives and principles.\21\ Rule 17Ad-22
requires registered clearing agencies, like OCC, to establish,
implement, maintain, and enforce written policies and procedures that
are reasonably designed to meet certain minimum requirements for their
operations and risk management practices on an ongoing basis.\22\
Therefore, the Commission has stated \23\ that it believes it is
appropriate to review changes proposed in advance notices against Rule
17Ad-22 and the objectives and principles of these risk management
standards as described in Section 805(b) of the Clearing Supervision
Act.\24\
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\21\ 17 CFR 240.17Ad-22. See Exchange Act Release Nos. 68080
(October 22, 2012), 77 FR 66220 (November 2, 2012) (S7-08-11)
(``Clearing Agency Standards''); 78961 (September 28, 2016), 81 FR
70786 (October 13, 2016) (S7-03-14) (``Standards for Covered
Clearing Agencies'').
\22\ 17 CFR 240.17Ad-22.
\23\ See, e.g., Exchange Act Release No. 86182 (June 24, 2019),
84 FR 31128, 31129 (June 28, 2019) (SR-OCC-2019-803).
\24\ 12 U.S.C. 5464(b).
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OCC believes the proposed changes are consistent with the
objectives and principles of Section 805(b) of the Clearing Supervision
Act.\25\ The proposed changes are generally designed to enhance OCC's
overall framework for managing member defaults by mitigating credit and
liquidity risks associated with the difference in timing between the
close-out of a defaulting Clearing Member's stock loan positions with
the auction of the remainder of its positions and
[[Page 49700]]
ensuring that the close-out occurs within OCC's two-day liquidation
time horizon. These proposed changes would help OCC avoid credit losses
or liquidity shortfalls that could disrupt OCC's operations. In this
way, OCC believes that the proposed enhancements to its overall
framework for managing liquidity risk would improve OCC's resilience as
a systemically important market utility by promoting robust risk
management; promoting safety and soundness; reducing systemic risks;
and supporting the stability of the broader financial system.
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\25\ Id.
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OCC also believes that the proposed changes are consistent with the
risk management standards adopted by the Commission under Section
805(a)(2) of the Clearing Supervision Act; \26\ specifically, Rule
17Ad-22(e)(13) \27\ and Rule 17Ad-22(e)(23).\28\ Rule 17Ad-22(e)(13)
requires covered clearing agencies to establish, implement, maintain
and enforce written policies and procedures reasonably designed to, in
part, ensure the covered clearing agency has the authority and
operational capacity to take timely action to contain losses and
liquidity demands and continue to meet its obligations in the event of
a Clearing Member default.\29\ By more closely aligning the close-out
of stock loan positions with the close-out of other positions, these
proposed changes to OCC's default management processes would help
mitigate credit and liquidity risks should the price of the stock loan
positions move unfavorably between the time of auction and
determination of the final settlement price for remaining buy-in/sell-
out transactions and should that price differential exceed the amount
of margin on deposit for such positions. In addition, the proposed
changes would give OCC the authority and operational capacity to take
timely action to contain credit losses by authorizing OCC to cash
settle positions by the close of OCC's two-day liquidation time horizon
should a non-defaulting Clearing Member fail to report buy-in or sell-
out transactions as instructed. For these reasons, OCC believes the
proposed changes are reasonably designed to ensure that OCC's default
management processes contain losses and liquidity demands and continue
to meet settlement demands in the event of a Clearing Member default.
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\26\ 12 U.S.C. 5464(a)(2).
\27\ 17 CFR 240.17Ad-22(e)(13).
\28\ 17 CFR 240.17Ad-22(e)(23)
\29\ 17 CFR 240.17Ad-22(e)(13).
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In addition, Rule 17Ad-22(e)(23) requires covered clearing agencies
to maintain written policies and procedures reasonably designed to,
among other things, provide for publicly disclosing all relevant rules
and material procedures, including key aspects of its default rules and
procedures.\30\ The proposed changes would amend OCC's Rules, which are
available on OCC's websites, to provide for the new deadline for non-
defaulting Clearing Members to buy-in or sell-out if so instructed by
OCC in the event of a Clearing Member default, as well as how OCC would
close out a stock loan position if a non-defaulting Clearing Member
failed to do so. Therefore, OCC believes the proposed changes would
disclose default rules and procedures to the public and to Clearing
Members so that they can understand their obligations in the event of a
Clearing Member default.
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\30\ 17 CFR 240.17Ad-22(e)(23).
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For the foregoing reasons, OCC believes that the proposed changes
are consistent with Section 805(b) of the Clearing Supervision Act \31\
and Rules 17Ad-22(e)(13) \32\ and (e)(23) \33\ under the Exchange Act.
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\31\ 12 U.S.C. 5464(b).
\32\ 17 CFR 240.17Ad-22(e)(7).
\33\ 17 CFR 240.17Ad-22(e)(23).
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III. Date of Effectiveness of the Advance Notice and Timing for
Commission Action
The proposed change may be implemented if the Commission does not
object to the proposed change within 60 days of the later of (i) the
date the proposed change was filed with the Commission or (ii) the date
any additional information requested by the Commission is received. OCC
shall not implement the proposed change if the Commission has any
objection to the proposed change.
The Commission may extend the period for review by an additional 60
days if the proposed change raises novel or complex issues, subject to
the Commission providing the clearing agency with prompt written notice
of the extension. A proposed change may be implemented in less than 60
days from the date the advance notice is filed, or the date further
information requested by the Commission is received, if the Commission
notifies the clearing agency in writing that it does not object to the
proposed change and authorizes the clearing agency to implement the
proposed change on an earlier date, subject to any conditions imposed
by the Commission.
OCC shall post notice on its website of proposed changes that are
implemented. The proposal shall not take effect until all regulatory
actions required with respect to the proposal are completed.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the advance
notice is consistent with the Clearing Supervision Act. Comments may be
submitted by any of the following methods:
Electronic Comments
Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-OCC-2020-805 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549.
All submissions should refer to File Number SR-OCC-2020-805. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the advance notice that are filed with the
Commission, and all written communications relating to the advance
notice 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 the self-regulatory
organization.
All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-OCC-2020-805 and
should be submitted on or before August 31, 2020.
[[Page 49701]]
By the Commission.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-17745 Filed 8-13-20; 8:45 am]
BILLING CODE 8011-01-P