[Federal Register Volume 78, Number 89 (Wednesday, May 8, 2013)]
[Notices]
[Pages 26838-26841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10848]



[[Page 26838]]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69497; File No. SR-NSCC-2013-04]


Self-Regulatory Organizations; National Securities Clearing 
Corporation; Notice of Filing of Proposed Rule Change in Connection 
With the Implementation of the Foreign Account Tax Compliance Act 
(FATCA)

May 2, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby 
given that on April 22, 2013, 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 substantially prepared by NSCC. 
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.
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I. Clearing Agency's Statement of the Terms of Substance of the 
Proposed Rule Change

    The proposed rule change modifies NSCC's Rules and Procedures 
(``Rules''), as described below, in connection with the implementation 
of sections 1471 through 1474 of the Internal Revenue Code of 1986, as 
amended, which sections were enacted as part of the Foreign Account Tax 
Compliance Act, and the Treasury Regulations or other official 
interpretations thereunder (collectively ``FATCA'').

II. Clearing Agency'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.\3\
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    \3\ The Commission has modified the text of the summaries 
prepared by the clearing agency.
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(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis 
for, the Proposed Rule Change

Background
    FATCA was enacted on March 18, 2010, as part of the Hiring 
Incentives to Restore Employment Act, and became effective, subject to 
transition rules, on January 1, 2013. The U.S. Treasury Department 
finalized and issued various implementing regulations (``FATCA 
Regulations'') on January 17, 2013. FATCA's intent is to curb tax 
evasion by U.S. citizens and residents through their use of offshore 
bank accounts. FATCA generally requires foreign financial institutions 
(``FFIs'') \4\ to become ``participating FFIs'' by entering into 
agreements with the Internal Revenue Service (``IRS''). Under these 
agreements, FFIs are required to report to the IRS information on U.S. 
persons and entities that have (directly or indirectly) accounts with 
these FFIs. If an FFI does not enter into such an agreement with the 
IRS, FATCA will impose a 30% withholding tax on U.S.-source interest, 
dividends and other periodic amounts paid to such ``nonparticipating 
FFI'' (``Income Withholding''), as well as on the payment of gross 
proceeds arising from the sale, maturity or redemption of securities or 
any instrument yielding U.S.-source interest and dividends (``Gross 
Proceeds Withholding,'' and, together with Income Withholding, ``FATCA 
Withholding''). The 30% FATCA Withholding taxes will apply to payments 
made to a nonparticipating FFI acting in any capacity, including 
payments made to a nonparticipating FFI that is not the beneficial 
owner of the amount paid and acting only as a custodian or other 
intermediary with respect to such payment. To the extent that U.S.-
source interest, dividend, and other periodic amount or gross proceeds 
payments are due to a nonparticipating FFI in any capacity, a U.S. 
payor, such as NSCC, transmitting such payments to the nonparticipating 
FFI will be liable to the IRS for any amounts of FATCA Withholding that 
the U.S. payor should, but does not, withhold and remit to the IRS. For 
the reasons described below, NSCC is not in a position to accept this 
liability and, by making the proposed rule changes set forth herein, is 
implementing preventive measures to protect itself against such 
liability.
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    \4\ Non-U.S. financial institutions are referred to as ``foreign 
financial institutions'' or ``FFIs'' in the FATCA Regulations.
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    In addition, under FATCA, a U.S. payor, such as NSCC, could be 
required to deduct Income Withholding with regard to a participating 
FFI if either: (x) the participating FFI makes a statutory election to 
shift its withholding responsibility under FATCA to the U.S. payor; or 
(y) the U.S. payor is required to ignore the actual recipient and treat 
the payment as if made instead to certain owners, principals, 
customers, account holders or financial counterparties of the 
participating FFI. NSCC is not in a position to accept this burden 
shift and, by making the proposed rule changes set forth herein, is 
implementing preventive measures to protect itself against such a 
burden.
    As an alternative to FFIs entering into individual agreements with 
the IRS, the U.S. Treasury Department provided another means of 
complying with FATCA for FFIs which are resident in Non-U.S. 
jurisdictions that enter into intergovernmental agreements (``IGA'') 
with the United States.\5\ Generally, such a jurisdiction (``FATCA 
Partner'') would pass laws to eliminate the conflicts of law issues 
that would otherwise make it difficult for FFIs in its jurisdiction to 
collect the information required under FATCA and transfer this 
information, directly or indirectly, to the United States. An FFI 
resident in a FATCA Partner jurisdiction would either transmit FATCA 
reporting to its local competent tax authority, which in turn would 
transmit the information to the IRS, or the FFI would be authorized/
required by FATCA Partner law to enter into an FFI agreement and 
transmit FATCA reporting directly to the IRS. Under both IGA models, 
payments to such FFIs would not be subject to FATCA Withholding so long 
as the FFI complies with the FATCA Partner's laws mandated in the IGA.
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    \5\ As of the date of this proposed rule change filing, the 
United Kingdom, Mexico, Ireland, Switzerland, Spain, Norway, 
Denmark, Italy, and Germany have signed or initialed an IGA with the 
United States. The U.S. Treasury Department has announced that it is 
engaged in negotiations with more than 50 countries and 
jurisdictions regarding entering into an IGA.
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    Under the FATCA Regulations, (A) beginning January 1, 2014, NSCC 
will be required to do Income Withholding on any payments made to any 
nonparticipating FFI approved for membership by NSCC as of such date or 
thereafter, (B) beginning July 1, 2014, NSCC will be required to do 
Income Withholding on any payments made to any nonparticipating FFI 
approved for membership by NSCC prior to January 1, 2014 and (C) 
beginning January 1, 2017, NSCC will be required to do Gross Proceeds 
Withholding on all nonparticipating FFIs, regardless when any such 
FFI's membership was approved.

[[Page 26839]]

Preparing for Implementation of FATCA
    In preparation for FATCA's implementation, FFIs are being asked to 
identify their expected FATCA status as a condition of continuing to do 
business. Customary legal agreements in the financial services industry 
already contain provisions allocating the risk of any FATCA Withholding 
tax that will need to be collected, and requiring that, upon FATCA's 
effectiveness, foreign counterparties must certify (and periodically 
recertify) their FATCA status using the relevant tax forms that the IRS 
has announced it will provide.\6\ Advance disclosure by an FFI client 
or counterparty would permit a withholding agent to readily determine 
whether it must, under FATCA, withhold on payments it makes to the FFI. 
If an FFI fails to provide appropriate compliance documentation to a 
withholding agent, such FFI would be presumed to be a nonparticipating 
FFI and the withholding agent will be obligated to withhold on certain 
payments.
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    \6\ For example, credit agreements now routinely require foreign 
lenders to agree to provide certifications of their FATCA status 
under approved IRS forms to U.S. borrowers, and subscription 
agreements for alternative investment funds that are anticipated to 
earn U.S.-source income are routinely requiring similar covenants.
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    As it applies to NSCC specifically, FATCA will require NSCC to 
deduct FATCA Withholding on payments to certain members and limited 
members arising from certain transactions processed by NSCC on behalf 
of such members.\7\ Because FATCA treats any entity holding financial 
assets for the account of others as a ``financial institution,'' NSCC 
believes that almost all of its members and limited members which are 
treated as non-U.S. entities for federal income tax purposes, including 
those members and limited members that are U.S. branches of non-U.S. 
entities, will likely be FFIs under FATCA (collectively, ``FFI 
Members'').\8\ As such, NSCC will be liable to the IRS for any failures 
to withhold correctly under FATCA on payments made to its FFI Members.
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    \7\ FFI members and limited members resident in IGA countries 
that are compliant with the terms of applicable IGAs should not be 
subject to FATCA Withholding.
    \8\ Currently, only a small percentage of the Corporation's 
members and limited members are treated as non-U.S. entities for 
federal income tax purposes.
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    In light of this, NSCC has evaluated its existing systems and 
services to determine whether and how it may comply with its FATCA 
obligations. As a result of this evaluation, NSCC has determined that 
its existing systems cannot process the new FATCA Withholding 
obligations with regard to the securities transactions processed by it, 
as no similar withholding obligation of this magnitude has ever been 
imposed upon it to date, and NSCC has therefore not built its systems 
to support such an obligation.
    In addition, the vast majority of the transactions that are 
processed at NSCC are processed through its Continuous Net Settlement 
(``CNS'') System. CNS is NSCC's core netting, allotting, and fail-
control engine. Within CNS, each security and related money settlement 
obligation is netted to one net security and/or payment position per 
member, including FFI Members, with NSCC as its central counterparty. 
CNS maintains an orderly flow of security and money balances, providing 
clearance and settlement for equities, corporate bonds, unit investment 
trusts and municipal bonds that are eligible for book entry delivery at 
The Depository Trust Company (``DTC''), an affiliate of NSCC.
    Further, NSCC's related Money Settlement Service provides for net 
money settlement with regard to payments attributable to CNS, as well 
as with regard to payments attributable to other Corporation-processed 
transactions, including mutual fund and insurance transactions. Money 
settlement at NSCC occurs at the end of the day and, from an 
operational perspective, is centralized with DTC's end-of-day money 
settlement in order to provide common Corporation members/DTC 
participants with consolidated reporting and a single point of access 
for all settlement information. Throughout the day, debit and credit 
data generated by member activity are recorded in the settlement 
system. At the end of the processing day, the data is summarized by 
product category (e.g., CNS, mutual funds, etc.) and netted to produce 
an aggregate debit or credit for each member. Similarly, DTC activity 
is also recorded and netted, separately. Following the determination of 
final net numbers for each Corporation member and/or DTC participant, 
these amounts are further netted to produce a consolidated net 
settlement obligation. So, for example, a member with a settlement 
debit at NSCC, which member is also a DTC participant, will have that 
debit netted against its settlement credit at DTC. Settling banks, who 
may settle on behalf of multiple Corporation members and/or DTC 
participants, must separately acknowledge the respective settlement 
balances of their customer members/participants at each clearing 
agency. The consolidated net balances of their respective member/
participant customers are then further netted to produce a single net-
net settling bank consolidated debit or credit. Settlement of these 
net-net balances occurs through use of the Federal Reserve's National 
Settlement Service, whereby DTC, on its own behalf and as NSCC's 
settlement agent, submits instructions to have the Federal Reserve 
accounts of the settling banks charged for their net-net debit balances 
and credited with their net-net credit balances. NSCC believes that 
this net-net settlement functionality could make FATCA Withholding 
virtually impossible, or, at the very least, would create onerous 
efficiency and liquidity issues for both NSCC and its membership.
    Undertaking FATCA Withholding, given NSCC's net-net settlement 
functionality, could require NSCC in certain circumstances to resort to 
a draw on NSCC's clearing fund (``Clearing Fund'') in order to fund 
FATCA Withholding taxes with regard to nonparticipating FFI Members in 
non-FATCA Partner jurisdictions whenever the net credit owed to such 
FFI Member is less than the 30% FATCA tax. For example, if a 
nonparticipating FFI (in a non-FATCA Partner jurisdiction) is owed a 
$100M payment from the sale of U.S. securities, but such 
nonparticipating FFI is in a net debit position at the end of that day 
because of NSCC's net settlement functionality and end-of-day crediting 
and debiting, there would be no payment to this FFI Member from which 
NSCC can withhold. In this example, NSCC would likely need to fund the 
$30M FATCA Withholding tax until such time as the FFI Member can 
reimburse NSCC and, as NSCC has no funds for this purpose, it likely 
would require a draw on the Clearing Fund.\9\ NSCC would need to 
consider an increase in the amount of cash required to be deposited 
into the

[[Page 26840]]

Clearing Fund, either by FFI Members or perhaps all of its members, 
which would reduce such member's liquidity and could have significant 
systemic effects. The amount of the FATCA Withholding taxes would be 
removed from market liquidity, which could lead to increased risk of 
member failure and increased financial instability.
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    \9\ We note that the FATCA Regulations provide that ``clearing 
organizations'', which settle money on a net basis, may withhold on 
a similar net basis for FATCA purposes. However, the end-of-day net 
settlement amounts, which are attributable to the sales and 
dispositions of many different securities as well as debits and 
credits for other items, would likely not qualify for the special 
FATCA netting rule. Additionally, as discussed above, each of the 
Corporation's member's end-of-day money settlement obligation is 
cross-netted with such member's respective money settlement 
obligation at DTC, and therefore, qualifying as a ``clearing 
organization'' under FATCA would still not prevent the possibility 
that the Corporation would need to fund FATCA Withholding taxes from 
the Clearing Fund. Even if the end-of-day net-net settlement amount 
would qualify as the correct amount from which to do FATCA 
Withholding, the liquidity risks described herein are still present. 
This is because the sheer dollar value attributable to the 
Corporation's net daily payments among the Corporation and members 
means that withholding FATCA tax from such net settlement payments, 
in any material proportion, would likely reduce liquidity and thus 
increase financial instability.
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    For the reasons explained above and the following additional 
reasons, NSCC is proposing amendments to its Rules (detailed below) to 
implement preventive measures that would generally require all of 
NSCC's (i) existing members and limited members that are treated as 
Non-U.S. entities for federal tax income purposes and (ii) any 
applicants applying to become members or limited members, that are 
treated as Non-U.S. entities for federal income tax purposes to be 
participating FFIs:
     Undertaking FATCA Withholding by NSCC (even if possible) 
would make it economically unfeasible for affected FFI Members to 
engage in transactions involving U.S. securities. It would likely also 
quickly cause a significant negative impact on such FFI Members' 
liquidity because such withholding taxes would be imposed on the very 
large sums that NSCC pays to such FFI Members. Furthermore, FFI Members 
would be burdened with extra costs and the negative impact on liquidity 
caused by the likely need to substantially increase the amount of cash 
required to be deposited into the Clearing Fund.
     The cost of implementing a FATCA Withholding system for a 
small number of nonparticipating FFI Members would be substantial and 
disproportionate to the related benefit. Under the Model I IGA form and 
its executed versions with various FATCA Partners, NSCC would not be 
required to withhold with regard to FFI residents in such FATCA Partner 
jurisdictions. Accordingly, NSCC's withholding obligations under FATCA 
would effectively be limited to nonparticipating FFI Members in non-
FATCA Partner jurisdictions. Since the cost of developing and 
maintaining a complex FATCA Withholding system would be passed on to 
NSCC's members at large, it may burden members that otherwise comply 
with, or are not subject to, FATCA Withholding.
     As briefly noted above, if the proposed rule changes were 
not to take effect, in order to avoid counterparty credit risk, NSCC 
would likely require each of the nonparticipating FFI Members in non-
FATCA Partner jurisdictions to make initial or additional cash deposits 
to the Clearing Fund as collateral for the approximate potential FATCA 
tax liability of such nonparticipating FFI Member or otherwise adjust 
required deposits to the Clearing Fund. The amount of such deposits, 
which could amount to billions of dollars, would be removed from market 
liquidity.
     From the nonparticipating FFI Member's perspective, having 
30% of its payments withheld and sent to the IRS would have a severe 
negative impact on such nonparticipating FFI Member's financial status. 
In many cases, the gross receipts would be for client accounts, and the 
nonparticipating FFI Member would need to make such accounts whole. 
Without receipt of full payment for its dispositions, the 
nonparticipating FFI Member would not have sufficient assets to fund 
its client accounts.
     The proposed rule changes set forth herein should not 
create business issues or be onerous to NSCC's membership because 
requiring FFIs to certify (and to periodically recertify) their FATCA 
status, and imposing the costs of non-compliance on them, are becoming 
standard market practice in the United States, separate and apart from 
membership in NSCC.
Proposed Rule Changes
    Managing the risks inherent in executing securities transactions is 
a key component of NSCC's business. The globalization of financial 
markets, the trading of more complex instruments and the application of 
new technology all make risk management more critical and challenging. 
NSCC's risk tolerances (i.e., the levels of risk NSCC is prepared to 
confront, under a range of possible scenarios, in carrying out its 
business functions) are determined by the Board of Directors, in 
consultation with the Group Chief Risk Officer. NSCC uses a combination 
of risk management tools, including strict criteria for membership, to 
mitigate the risks inherent in its business. In line with its risk 
management focus, NSCC has determined that compliance with FATCA, such 
that NSCC shall not be responsible for FATCA Withholding, should be a 
general membership requirement (A) for all applicants that are treated 
as non-U.S. entities for federal income tax purposes, and (B) for all 
existing FFI Members.\10\ In connection therewith, NSCC proposes to 
amend its Rules as follows:
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    \10\ NSCC may grant a waiver under certain circumstances, 
provided, however, that NSCC will not grant a waiver if it causes 
NSCC to be obligated to withhold under FATCA on gross proceeds from 
the sale or other disposition of any property.
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     Rule 1: adding ``FFI Member,'' ``FATCA,'' ``FATCA 
Certification,'' ``FATCA Compliance Date'' \11\ and ``FATCA Compliant'' 
as defined terms;
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    \11\ Although Income Withholding with regard to FFI Members 
approved for membership by the Corporation prior to January 1, 2014 
is first required under FATCA beginning July, 1 2014, the proposed 
amendments to the Rules would require such existing FFI Members to 
be FATCA compliant approximately 60 days prior to July 1, 2014 in 
order for the Corporation to comply with its disciplinary and notice 
processes as set forth in its Rules.
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     Rule 2, Section 4: requiring that all FFI Members (both 
new and existing), in general: (i) Agree not to conduct any transaction 
or activity through NSCC if such FFI Member is not FATCA Compliant, 
(ii) certify and, as required under the timelines set forth under 
FATCA, periodically recertify, to NSCC that they are FATCA Compliant, 
and (iii) indemnify NSCC for any losses sustained by NSCC resulting 
from such FFI Member's failure to be FATCA Compliant;
     Rule 2A, Section 1.B.: adding FATCA Compliance as a 
qualification requirement for any applicant that will be an FFI Member;
     Rule 2A, Section 1.B., Foot Note 1: making a technical 
clarification to expressly include the policy statement set forth in 
Addendum O as other qualification standards that NSCC has promulgated 
with regard to certain applicants;
     Rule 2A, Section 1.C.: adding that each applicant must 
complete and deliver a FATCA Certification to NSCC as part of its 
membership application unless NSCC has waived this requirement with 
regard to membership type;
     Rule 2B, Section 1: Making a technical clarification by 
adding a footnote to expressly include the policy statement set forth 
in Addendum O as qualifications and standards which are continuing 
membership requirements;
     Rule 2B, Section 2.B: Specifying that failure to be FATCA 
Compliant creates a duty upon an FFI Member (both new and existing) to 
inform NSCC;
     Addendum O: Requiring applicants that are subject to this 
Policy Statement (i) to be FATCA Compliant, (ii) to deliver to NSCC a 
FATCA Certification, and to periodically recertify such FATCA 
Certification, (iii) to agree not to submit any order for processing 
through NSCC if the applicant fails to be FATCA Compliant at any time, 
and (iv) to agree to indemnify NSCC for any losses sustained by NSCC 
resulting from the applicant's failure to be FATCA Compliant, as 
conditions to admission and continued membership.
     NSCC believes the proposed rule changes are consistent 
with the requirements of the Exchange Act. In

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particular, the proposed rule changes are consistent with Section 
17A(b)(3)(F) of the Exchange Act \12\ because they promote the prompt 
and accurate clearing and settlement of securities transactions by 
eliminating an uncertainty in payment settlement that would arise if 
NSCC were subject to FATCA Withholding obligations under FATCA. The 
proposed rule changes are also consistent with Section 17A(b)(3)(D) of 
the Exchange Act \13\ because they provide for the equitable allocation 
of reasonable dues, fees, and other charges among NSCC's members. 
Specifically, the proposed rule changes allow NSCC to comply with FATCA 
Regulations without developing and maintaining a complex FATCA 
Withholding system, the cost of which, as discussed above, would be 
would be passed on to NSCC's members at large for the benefit of a 
small number of nonparticipating FFI Members.
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    \12\ 12 U.S.C. 78q-1(b)(3)(F).
    \13\ 12 U.S.C. 78q-1(b)(3)(D).
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(B) Clearing Agency's Statement on Burden on Competition

    NSCC does not believe that the proposed rule change will 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

    NSCC has not solicited, and does not intend to solicit, comments 
regarding the proposed rule changes. NSCC has not received any 
unsolicited written comments from interested parties. To the extent 
NSCC receives written comments on the proposed rule changes, NSCC will 
forward such comments to the Commission.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

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 Exchange 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-2013-04 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NSCC-2013-04 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 Web site (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 Web site 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 
NSCC's Web site (http://www.dtcc.com/legal/rule_filings/nscc/2013.php). All comments received will be posted without change; the 
Commission does not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should refer to File Number SR-
NSCC-2013-04 and should be submitted on or before May 29, 2013.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-10848 Filed 5-7-13; 8:45 am]
BILLING CODE 8011-01-P