[Federal Register Volume 61, Number 49 (Tuesday, March 12, 1996)]
[Notices]
[Pages 10051-10053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5844]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-36930; File No. SR-NSCC-95-17]


Self-Regulatory Organizations; National Securities Clearing 
Corporation; Notice of Filing of a Proposed Rule Change To Establish 
Additional Procedures for Placing Settling Members on Class A 
Surveillance and Collecting Clearing Fund and Other Collateral Deposits 
for Settling Members

March 6, 1995.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on December 20, 1995, the 
National Securities Clearing Corporation (``NSCC'') 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 primarily by NSCC. The Commission is publishing this 
notice to solicit comments from interested persons.

    \1\ 15 U.S.C. 78s(b)(1) 1988).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The proposed rule change seeks to establish additional procedures 
in connection with placing NSCC members on Class A surveillance. The 
proposal also seeks approval of special clearing fund deposit and other 
collateral requirements for NSCC members placed on Class A 
surveillance.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A), 
(B), and (C) below, of the most significant aspects of such 
statements.\2\

    \2\ The Commission has modified the text of the summaries 
prepared by NSCC.
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(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    Rule 15, Section 3 of NSCC's rules provides that any settling 
member \3\ shall furnish NSCC such adequate assurances of its financial 
responsibility and operational capability as NSCC may at any time or 
from time to time deem necessary or advisable in order to protect NSCC. 
Section 4 of rule 15 further states that such adequate assurances may 
include, but are not be limited to, requiring increased clearing fund 
deposits of settling members. Section III.B.1.o. of Addendum B to 
NSCC's rules permits NSCC to place any settling member on Class A 
surveillance status due to the presence of any condition which could 
materially impact the operational or financial viability of a settling 
member which increases or may potentially increase exposure to NSCC.

    \3\ NSCC Rule 1 defines a ``settling member'' as any NSCC member 
or non-clearing member, and except where a contrary intent is 
expressed in the rules, settling member includes a special 
representative.
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    NSCC's Board of Directors has determined that settling members can 
materially impact their financial viability by conducting significant 
clearing business for over-the-counter (``OTC'') market makers or by 
engaging in OTC market making. In turn, this could potentially increase 
exposure to NSCC when the market maker, either along or acting in 
concert with other market makers, takes net street-side trading 
positions that constitute a disproportionately large percentage of the 
total net street-side buys or net street-side sells in any issue (i.e., 
the market maker dominates one side of the market in the issue) and has 
insufficient capital or access to capital to support the positions in 
dominated issues.
    The potential for increased exposure to NSCC becomes greater to the 
extent that one or more additional risk factors are present. These 
additional risk factors include, without limitation:
    (1) Concentrated short selling in dominated issues;
    (2) Undue concentration of inventory in the market maker(s) for 
dominated issues;
    (3) Dominated issues also being IPSs less than six months past 
initial issuance particularly when the current value of the issue is 
significantly different from its initial sales price or there is undue 
concentration of inventory in the managing underwriter(s); and
    (4) Clearing positions of market makers in dominated issues away 
from their primary clearing brokers.
    To the extent that a market maker's net street-side trading 
positions in dominated issues result from legitimate customer orders, 
the potential adverse impact on the financial viability of a settling 
member and the potential for increased exposure to NSCC would be 
mitigated.
    In light of the foregoing, NSCC has filed for approval its policy 
of placing settling members on Class A surveillance if they clear for 
or are themselves OTC market makers, and they do not have sufficient 
capital or access to capital to support either potential increases in 
market making activity in dominated issues of the type described above 
or if there is the presence of the additional risk factors described 
above in current volumes of market marker activity. At it discretion, 
NSCC may elect not to place settling members on Class A surveillance if 
it has obtained sufficient assurances of a high degree of mitigating 
circumstances. However, the mere fact that a market maker has a large 
customer base may not necessarily constitute the necessary mitigating 
circumstances especially if the customers are retail and/or the market 
maker has a history of customer complaints or other adverse regulatory 
or disciplinary actions.
    Pursuant to Rule 15, NSCC has filed for approval its proposed 
interim collateralization policy which would permit NSCC, in its 
discretion, to require settling members placed on

[[Page 10052]]
Class A surveillance who clear for or are themselves OTC market makers 
to meet special collateralization requirements as follows.
    (1) To the extent that the sum of the absolute values of the net 
unsettled trading positions of any such settling member in all the 
securities dominated \5\ by a market maker exceeds the market maker's 
excess net capital, NSCC may require the settling member to deposit the 
amount of the excess with NSCC at such times and in such manner as NSCC 
may designate, including an immediate deposit of same-day funds.\6\ In 
determining the size of net unsettled trading positions, NSCC may take 
into account offsetting, pending (i.e., non-fail) institutional 
delivery (``ID'') transactions that have been confirmed, and when NSCC 
deems appropriate, affirmed \7\ through the ID system of a clearing 
agency registered under Section 17A of the Act (``registered clearing 
agency'').\8\ In addition, if a market maker's net unsettled trading 
positions in dominated issues are cleared by one or more other settling 
members, including any settling member on Class A surveillance, NSCC 
will have the discretion, for purposes of calculating the special 
collateral deposit, of treating those positions as if they were all 
cleared by a settling member on Class A surveillance.

    \5\ Domination will be determined according to criteria 
specified by NSCC from time to time.
    \6\ The term ``same-day funds'' refers to payment in funds that 
are immediately available and generally are transferred by 
electronic means.
    \7\ In determining net unsettled trading positions, NSCC in its 
discretion under certain circumstances may elect to take into 
account offsetting pending confirmed ID transactions only if such 
transactions also have been affirmed. Moreover, NSCC may decline to 
consider any ID transaction if it has reason to believe that the 
institutional counterparty may not or cannot settle such 
transaction.
    \8\ 15 U.S.C. Sec. 78q-1 (1988).
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    (2) To the extent that the unsettled positions referred to in 
paragraph (1) above are short (i.e., net sells), NSCC may in its 
discretion collect more than 100% of the market maker's excess net 
capital or may require or accept in lieu of cash collateral a book-
entry delivery of securities to NSCC sufficient to cover the short 
position.
    (3) NSCC will reserve the right at all times to accept alternative 
arrangements for its protection in any of the above situations. NSCC 
may require special collateral deposits with respect to trading 
positions in issues dominated by a market maker even when the value of 
those positions do not exceed the market maker's excess net capital. 
NSCC may also choose to forego collecting such special collateral even 
when the value of those positions exceed the market maker's excess net 
capital (but do not exceed some higher threshold) as the situation may 
warrant depending upon, among other things, the presence or absence of 
additional risk factors or mitigating circumstances.
    The special collateralization requirements described above are 
interim measures for settling members on Class A surveillance which 
will be in effect until NSCC has gained enough experience in 
surveillance of OTC market maker trading activities to impose permanent 
special collateralization requirements. Additionally, if there is 
concentrated short selling in dominated issues, NSCC will maintain its 
right to collect special collateral deposits from the settling members 
clearing the short sales without regard to their surveillance status. 
Special collateral collected from any settling member pursuant to the 
above procedures will be in addition to the settling member's clearing 
fund deposit computed in accordance with the formulae set forth in NSCC 
Procedure XV or in accordance with the alternative method set forth 
below.
    NSCC also recognizes that settling members on Class A surveillance 
have been determined to present a higher than normal risk of default 
and insolvency. As a result, NSCC has proposed that such settling 
members be required to make clearing fund deposits keyed to the close-
out risk presented by their unsettled positions in NSCC's systems. 
Therefore, pursuant to Rule 15 NSCC proposes that it shall have the 
discretion to compute the continuous net settlement (``CNS'') clearing 
fund requirements for any settling member on Class A surveillance 
without regard to particular individual circumstances and in accordance 
with the following alternative method rather than as set forth in NSCC 
Procedure XV.
    (1) NSCC may calculate on a daily or periodic basis the volatility 
of any such settling member's net unsettled trading positions in CNS 
eligible issues (``net CNS trading positions''). Such positions shall 
be determined after taking into account offsetting pending (i.e., non-
fail) ID transactions that have been confirmed, and when NSCC deems 
appropriate, affirmed \9\ through the ID system a registered clearing 
agency. Such calculation will be made in accordance with the Capital 
Asset Pricing Model or any other generally accepted portfolio 
volatility model including without limitation any margining formula 
employed by any other registered clearing agency provided, however, 
that not less than two standard deviations' volatility shall be 
calculated under any model chosen. Such calculation will be made 
utilizing such assumptions and based on such historical data as NSCC 
deems reasonable and shall cover such range of historical volatility as 
NSCC from time to time deems appropriate. If such volatility is 
calculated on a periodic basis, it may be expressed as a percentage of 
the sum of the absolute values of the firm's net CNS trading positions. 
Any such calculations, whether expressed as a dollar value or 
percentage, may be rounded as NSCC deems appropriate.

    \9\ Id.
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    (2) NSCC shall have the discretion to exclude from the above 
calculations net CNS trading positions in classes of securities whose 
volatility is (i) less amendable to statistical analysis, such as OTC 
bulletin board or pink sheet issues or issues trading below a 
designated dollar threshold (e.g., five dollars), or (ii) amenable to 
generally accepted statistical analysis only in a complex manner (e.g., 
municipal or corporate bonds). The amount of clearing fund required 
with respect to net CNS trading positions in such issues shall be 
determined by multiplying the absolute value of such positions by a 
percentage designated by NSCC, which percentage may vary depending on 
such factors as NSCC deems relevant.
    (3) The amounts calculated in accordance with the immediately 
preceding two numbered paragraphs will be substituted for the amount 
calculated in accordance with paragraph (1)(c) of Sections A.I.(a), 
A.II.(a), and A.II.(b) of Procedure XV set forth in NSCC's rules. In 
addition, NSCC may in its discretion reduce or eliminate the amount 
calculated in accordance with paragraph (1)(a) of such sections.
    (4) NSCC in its discretion also may calculate the total clearing 
fund requirement of any settling member on a daily basis instead of a 
twenty day rolling average basis and may collect deficiencies at such 
times and in such manner as specified by NSCC from time to time, 
including immediate collection of same-day funds.
    Nothing in the foregoing rule proposal should be construed to limit 
NSCC's discretion with respect to placing settling members on Class A 
surveillance or requiring settling members to furnish adequate 
assurances of financial responsibility or operational capability as set 
forth in NSCC's Rules.
    NSCC believes that the proposed rule change is consistent with the 
requirements of Section 17A(b)(3)(F) \10\ of the Act and the rules and 
regulations

[[Page 10053]]
thereunder applicable to NSCC because the default or insolvency of any 
settling member potentially imposes burdens and costs on NSCC and all 
of its members and that the procedures described above are designed to 
reduce these burdens and costs.

    \10\ 15 U.S.C. Sec. 78q-1(b)(3)(F) (1988).
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(B) Self-Regulatory Organization's Statement on Burden on Competition

    NSCC does not believe that the proposed rule will have an impact or 
impose a burden on competition.

(C) Self-Regulatory Organization's Statement on Comments on the 
Proposed Rule Change Received From Members, Participants or Others

    No written comments relating to the rule filing have been solicited 
or received. NSCC will notify the Commission of any written comments 
received.

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

    Within thirty-five days of the date of publication of this notice 
in the Federal Register or within such longer period (i) as the 
Commission may designate up to ninety days of such date if it finds 
such longer period to be appropriate and publishes its reasons for so 
finding or (ii) as to which NSCC consents, the Commission will:
    (a) By order approve such proposed rule change or
    (b) Institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing. Persons making written submission 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street, N.W., Washington D.C. 20549. 
Copies of the submissions, 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. Sec. 552, will be available for inspection and copying in 
the Commission's Public Reference Room, 450 Fifth Street, N.W., 
Washington, D.C. 20549. Copies of such filings will also be available 
for inspection and copying at the principal office of NSCC. All 
submissions should refer to the file number SR-NSCC-95-17 and should be 
submitted by April 2, 1996.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\11\

    \11\ 17 CFR 200.30-3(a)(12) (1994).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-5844 Filed 3-11-96; 8:45 am]
BILLING CODE 8010-01-M