[Federal Register Volume 82, Number 85 (Thursday, May 4, 2017)]
[Notices]
[Pages 20945-20948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08982]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80555; File No. SR-OCC-2017-004]


Self-Regulatory Organizations; The Options Clearing Corporation; 
Order Approving Proposed Rule Change Concerning Enhancements to OCC's 
Stock Loan Programs

April 28, 2017.
    On February 28, 2017, The Options Clearing Corporation (``OCC'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change SR-OCC-2017-004 pursuant to Section 19(b)(1) of 
the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 
thereunder.\2\ The proposed rule change was published for comment in 
the Federal Register on March 14, 2017.\3\ The Commission did not 
receive any comment letters on the proposed rule change. This order 
approves the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 34-80323 (March 8, 
2017), 82 FR 13690 (March 14, 2017) (File No. SR-OCC-2017-004) 
(``Notice'').
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I. Description of the Proposed Rule Change

    OCC operates two Stock Loan Programs--the Hedge Program and Market 
Loan Program--in which a participating clearing member can lend an 
agreed-upon number of shares of eligible stock \4\ to another clearing 
member in exchange for an agreed-upon value of U.S. dollar cash 
collateral and then novate the loan to OCC for clearing.\5\ The Hedge 
Program permits clearing members to bilaterally execute stock loans and 
negotiate collateralization and other terms before submitting such 
stock loans to OCC for novation and clearing.\6\ The Market Loan 
Program is operationally similar to the Hedge Program, but it permits 
clearing members to execute stock loans through a multilateral loan 
market.\7\ In each case, upon completion of the novation process, OCC, 
in its capacity as a central counterparty, guarantees return of (i) 
loaned stock, or that stock's value, to the lending clearing member, 
and (ii) the value of cash collateral to the borrowing clearing 
member.\8\ In addition, OCC makes mark-to-market margin payments on a 
daily basis to ensure stock loans remain fully collateralized.
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    \4\ See OCC Rules 2202 and 2202A (providing that stock loans 
under the Hedge Program and the Market Loan Program, respectively, 
must effect transfer only of ``Eligible Stock,'' as defined in 
Article I of OCC's By-laws). OCC permits clearing members to execute 
stock loans involving 6,191 eligible securities as March 29, 2017, 
available at https://www.theocc.com/webapps/stock loan-eligible-
securities.
    \5\ The Hedge Program is governed by Article XXI of OCC's By-
Laws and Chapter XXII of OCC's Rules. The Market Loan Program is 
governed by Article XXIA of OCC's By-Laws and Chapter XXIIA of OCC's 
Rules. The Commission understands that OCC cleared approximately 10-
15% of the overall U.S.-equities stock loan market through the two 
programs, as of November 2015.
    \6\ The Commission understands that the Hedge Program accounts 
for approximately 95% of cleared stock loan volume at OCC, as of 
November 2015.
    \7\ Automated Equity Finance Markets, Inc. is the sole loan 
market through which clearing members can execute stock loans in the 
Market Loan Program.
    \8\ See OCC Rules 2202(b) and 2202A(b).
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    OCC proposes a number of changes to the Stock Loan Programs and its 
Rules governing those Programs.\9\ First, to improve trade certainty 
and transparency concerning clearing member exposures, OCC proposes 
amendments to its rules governing the Stock Loan Programs to do the 
following: (1) Require clearing members to have policies and procedures 
to reconcile stock loan positions each business day; (2) state 
explicitly that the controlling record for stock loan positions for 
margin and other purposes is OCC's ``golden'' record; and (3) provide 
that stock loan positions remain in effect until OCC's records reflect 
stock loan terminations. Second, to mitigate risks that may arise in 
the event of a clearing member suspension, OCC proposes amendments to 
its rules governing the Stock Loan Programs to do the following: (1) 
Provide a two-day trading window in which clearing members must execute 
close-out transactions, also known as ``buy-in'' or ``sell-out'' 
transactions; (2) provide broad authority for OCC to use reasonable 
prices to settle close-out transactions; and (3) permit OCC to close 
out and re-establish the matched-book stock loan positions of a 
suspended Hedge Program clearing member through termination by offset 
and ``re-matching'' with other clearing members. Each of these 
proposals is discussed in more detail below.
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    \9\ For a more detailed description of the specific rule changes 
OCC is proposing, see Notice, supra note 3.
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A. Proposed Measures To Improve Trade Certainty and Transparency

    OCC proposes three amendments to the rules governing its Stock Loan 
Programs that are intended to improve trade certainty and transparency 
for clearing members and OCC.
1. Daily Reconciliation of Stock Loan Positions
    Clearing members that participate in the Hedge Program and the 
Market Loan Program execute and terminate stock loans on a bilateral 
basis. Following execution or termination of stock loans, OCC requires 
clearing members to promptly report stock loans directly to OCC, or to 
facilitate such reporting to OCC through the Depository Trust 
Corporation (``DTC''), ensuring OCC accepts stock loans for clearing 
and records the novation or termination for margin and other purposes. 
Under the current trade-reporting process, clearing members may fail to 
report (or to have DTC report) stock loans to OCC in a timely manner, 
increasing uncertainty in the novation process and decreasing 
transparency with respect to OCC's

[[Page 20946]]

stock loan positions and obligations as a central counterparty and 
guarantor. The current process thereby presents risk management risks 
both to OCC and clearing members.
    To address these risk management risks, OCC proposes to require 
each clearing member to have adequate policies and procedures to 
perform daily reconciliations of stock loan positions against OCC's 
records and to resolve stock loan discrepancies, if any, by 9:30 a.m. 
Central Time the following business day.\10\ These proposed rule 
changes, according to OCC, would improve trade certainty and 
transparency for clearing members participating in the Hedge Program 
and the Market Loan Program and thereby reduce operational and other 
risks for OCC and clearing members.
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    \10\ See Proposed Rule 2205 of the Hedge Program and Proposed 
Rule 2205A of the Market Loan Program.
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2. Controlling Records for Stock Loan Positions
    To support and supplement the proposed daily reconciliation 
requirements for clearing member participation in the Stock Loan 
Programs, OCC proposes to explicitly state in its rules that OCC's 
stock loan records constitute the controlling records for margin and 
other purposes. Specifically, the proposed rules would specify that 
OCC's records, which OCC refers to as the ``golden copy'' records, 
prevail in the event of a conflict with clearing member records and 
that clearing members must continue to perform on obligations relating 
to open stock loan positions identified in the golden copy records.\11\ 
The proposed rules, according to OCC, support trade certainty and 
transparency in the Hedge and Market Loan Programs.
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    \11\ See Proposed Articles XXI and XXIA of OCC's By-Laws.
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3. Termination Records for Stock Loan Positions
    Finally, to conform OCC's stock loan termination provisions to the 
proposed changes relating to controlling records described above, OCC 
proposes rule changes to clarify that stock loans would be considered 
terminated for margin and other purposes only when OCC's records 
reflect termination of the stock loan.\12\ OCC states that these 
conforming changes also would support trade certainty and transparency 
in the Stock Loan Programs by ensuring consistency among and within the 
different rules applicable to the Stock Loan Programs.
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    \12\ See Proposed Rule 2209 in the Hedge Program and Proposed 
Rule 2209A in the Market Loan Program.
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B. Proposed Measures To Mitigate Stock Loan Risks in the Event of a 
Clearing Member Suspension

    In addition to the proposals intended to improve trade certainty 
and transparency, the proposed rule change also proposes three 
amendments to address certain risks that may arise in the event that 
OCC suspends a clearing member participant in the Stock Loan Programs.
1. Stock Loan Close-Out Timeframe in the Event of a Clearing Member 
Suspension
    Under current Stock Loan Program rules, OCC may seek to close out a 
suspended clearing member's stock loan positions by instructing non-
suspended clearing member counterparties to execute close-out 
transactions within a reasonable period of time.\13\ Although non-
suspended clearing members must be prepared to defend the timeliness of 
close-out transactions under current rules, clearing members are not 
required to execute close-out transactions based on OCC's instructions 
within a specific period of time. Accordingly, if non-suspended 
clearing members execute buy-in or sell-out transactions over an 
extended period of time following OCC's close-out instruction, OCC 
incurs a risk that close-out prices may vary significantly from the 
prices used to mark the stock loan positions to market for margin 
purposes. OCC's credit exposure, in part, depends on the significance 
of these price differences relative to the suspended clearing member's 
available margin resources.
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    \13\ More specifically, Rules 2209(b) and (f) and 2211 of the 
Hedge Program, and Rules 2209A(b) and (c) and 2211A of the Market 
Loan Program require clearing members to execute close-out 
transactions in a ``commercially reasonable manner'' and to be 
prepared to defend the timing, prices, and costs of such 
transactions.
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    To mitigate these risks, OCC proposes to require clearing members 
to execute close-out transactions within a fixed two-day trading window 
in the event of a clearing member suspension. More specifically, OCC 
proposes to require non-suspended clearing members to execute close-out 
transactions by the end of the business day following OCC's instruction 
to close out stock loans with the suspended clearing member. If a non-
suspended clearing member is unable to execute the close-out 
transactions within that two-day timeframe, OCC itself would terminate 
the clearing member's relevant stock loans and effect settlement based 
on the market price of the underlying securities, as determined by OCC. 
According to OCC, the proposed changes are intended to ensure that non-
suspended clearing members execute close-out transactions in a 
timeframe consistent with OCC's two-day liquidation assumption for 
stock loan margin purposes, which should reduce OCC's credit exposure 
from significant differences between clearing member-effectuated close-
out prices and the prices used to collect mark-to-market payments from 
the suspended clearing member.
2. Reasonable Prices for Stock Loan Close-Out Transactions in the Event 
of a Clearing Member Suspension
    Under current rules, OCC may seek to close out a suspended clearing 
member's stock loan positions by instructing non-suspended clearing 
member counterparties to execute buy-in or sell-out transactions. These 
close-out transactions must be executed in a ``commercially reasonable 
manner.'' \14\ If a borrowing clearing member is suspended and unable 
to return securities under a stock loan, OCC may instruct the lending 
clearing member to execute a ``buy-in'' transaction for the number of 
shares in the stock loan's underlying security that would be necessary 
to return the lending clearing member to its position prior to entering 
into the stock loan with the suspended clearing member. If the lending 
clearing member is suspended and unable to return the value of 
collateral, OCC similarly may instruct the borrowing clearing member to 
execute a ``sell-out'' transaction for the number of shares in the 
underlying security that would be necessary to return the borrowing 
clearing member to its position prior to entering into the stock loan. 
In each case, the non-suspended clearing member's stock loan position 
is terminated and settled based on the price reported for the close-out 
transaction.
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    \14\ Id.
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    To incentivize ``reasonable'' pricing of close-out transactions in 
the event of a clearing member suspension, OCC proposes to provide 
itself authority to withdraw from a clearing member's account the value 
of any difference between clearing member-reported prices and 
``reasonable'' close-out transaction prices, as determined by OCC based 
on an assessment of market conditions at the time of execution.\15\

[[Page 20947]]

This proposed price-substitution authority, according to OCC, would 
incentivize non-suspended clearing members to execute and report close-
out transactions in a commercially reasonable manner.\16\
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    \15\ See Proposed Rule 2211. The proposal provides that a 
clearing member may demonstrate that a close-out transaction was 
executed at a ``reasonable'' price by providing evidence that the 
transaction fell within the underlying stock's trading range on the 
date of execution. Id. To the extent a clearing member impacts the 
market price of an underlying security through close-out 
transactions, OCC, in its discretion, may consider such impact in 
its assessment of market conditions at the time of execution.
    \16\ If the close-out transaction is not executed within the 
two-day period provided in Proposed Rule 2212, however, the stock 
loan would be terminated and settled based on OCC's marking price at 
the end of the period.
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3. Re-Matching in the Event of a Hedge Clearing Member Suspension
    Under OCC's current rules, in the event of a clearing member 
suspension, OCC can fully unwind a suspended Hedge Clearing Member's 
matched-book positions \17\ only if it recalls all borrowed securities 
from specific borrowing clearing members and returns those securities 
to specific lending clearing members. Under current rules, this recall-
and-return process is operationally complex because the nature of these 
unwinds would require OCC to (i) effect transfer of significant numbers 
of securities to significant numbers of non-suspended clearing members; 
and (ii) settle an equal number of payments against final settlement 
prices. Moreover, during this recall-and-return process, the non-
suspended clearing members may experience unexpected imbalances in 
their overall stock loan positions, resulting in increased margin 
requirements or price risks relating to re-execution of the stock loans 
in a potentially distressed market.\18\
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    \17\ See definition of ``Matched-Book Positions'' in Article I 
of OCC's By-laws. A clearing member that maintains a ``matched 
book'' for stock loans generally borrows no more of a specific 
security than it lends to other clearing members in the program. See 
also Notice, supra note 3 at 8.
    \18\ OCC's present margin methodology nets matched-book stock 
loan positions prior to calculating clearing member exposures. Thus, 
a non-suspended clearing member's margin requirements may increase 
on account of the temporary stock loan imbalances resulting from a 
clearing member suspension.
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    To address these operational complexities and the potential 
consequences for both OCC and its clearing members, OCC proposes new 
rules that would permit it to terminate a suspended Hedge Clearing 
Member's matched-book stock loans in the Hedge Program by offset and to 
``re-match'' the positions of the non-suspended counterparties 
according to priorities established by OCC's matching algorithm.\19\ 
According to OCC, re-matching stock loans pursuant to an algorithm 
would facilitate orderly and efficient termination and re-establishment 
of stock loans involving a suspended Hedge Clearing Member, thereby 
mitigating operational and pricing risks that may arise for non-
suspended clearing members during the recall-and-return process.
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    \19\ OCC's matching algorithm would implement priorities in 
OCC's Proposed Rule 2212(d), which establishes an order of 
operations based on the size of stock loan positions and the 
existence of master securities lending agreements between the non-
suspended clearing members.
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II. Discussion and Commission Findings

    Section 19(b)(2)(C) of the Act \20\ directs the Commission to 
approve a proposed rule change of a self-regulatory organization if it 
finds that such proposed rule change is consistent with the 
requirements of the Act and the rules and regulations thereunder 
applicable to such organization. The Commission finds that the proposal 
is consistent with Section 17A(b)(3)(F) of the Act \21\ and Rules 17Ad-
22(e)(13) \22\ and 17Ad-22(e)(23) \23\ thereunder, as described in 
detail below.
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    \20\ 15 U.S.C. 78s(b)(2)(C).
    \21\ 15 U.S.C. 78q-l(b)(3)(F).
    \22\ 17 CFR 240.17Ad-22(e)(13).
    \23\ 17 CFR 240.17Ad-22(e)(23).
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A. Consistency With Section 17A(b)(3)(F) of the Act

    The Commission finds that the proposed rule change is consistent 
with Section 17A(b)(3)(F) of the Act,\24\ which requires, among other 
things, that the rules of a clearing agency be designed to do the 
following: (1) Promote the prompt and accurate clearance and settlement 
of securities transactions; and (2) assure the safeguarding of 
securities and funds which are in the custody or control of the 
clearing agency or for which it is responsible. The Commission believes 
each of the proposals in OCC's proposed rule change discussed above is 
consistent with promoting the prompt and accurate clearance and 
settlement of securities transactions and assuring the safeguarding of 
securities and funds which are in the custody or control of the 
clearing agency or for which it is responsible.
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    \24\ 15 U.S.C. 78q-l(b)(3)(F).
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    First, the Commission believes that OCC's three proposals to 
improve trade certainty and transparency in the Stock Loan Programs are 
consistent with promoting the prompt and accurate clearance and 
settlement of securities transactions as well as assuring the 
safeguarding of securities and funds which are in OCC's custody or 
control, or for which it is responsible. The Commission believes that 
OCC's proposal to require clearing members to implement adequate 
policies and procedures to reconcile stock loan positions with OCC's 
records on a daily basis would promote the prompt and accurate 
clearance and settlement of stock loan transactions, and assure the 
safeguarding of securities and funds exchanged through the programs, by 
reducing financial and other risks to OCC and clearing members. The 
Commission also believes that OCC's proposal to provide explicitly in 
its rulebook that its stock loan records would prevail in the event of 
a conflict with clearing member records, and that clearing members must 
continue to perform on all stock loan positions reflected in OCC's 
records, promotes the prompt and accurate clearance and settlement of 
securities transactions and assures the safeguarding of securities and 
funds by encouraging clearing members to understand, manage, and 
promptly report stock loan transactions.
    Finally, the Commission believes that OCC's proposal to provide 
that stock loan positions remain in effect until OCC's records reflect 
stock loan terminations promotes the prompt and accurate clearance and 
settlement of stock loan transactions and assures the safeguarding of 
securities and funds exchanged through the programs by emphasizing that 
OCC's records supersede the records of clearing members and further 
encouraging clearing members to understand, manage, and promptly report 
stock loan transactions. The Commission therefore finds these specific 
proposals are consistent with promoting the prompt and accurate 
clearance and settlement of securities transactions and assuring the 
safeguarding of securities and funds which are in OCC's custody or 
control, or for which it is responsible as guarantor in the Stock Loan 
Programs.
    Second, the Commission believes that OCC's three proposals to 
mitigate certain risks in the event of a clearing member suspension are 
consistent with promoting the prompt and accurate clearance and 
settlement of securities transactions and assuring the safeguarding of 
securities and funds which are in OCC's custody or control, or for 
which it is responsible. The proposal to provide a two-day trading 
window in which clearing members must execute close-out transactions, 
or opt for mandatory settlement, is consistent with promoting the 
prompt and accurate clearance and settlement of securities transactions 
and assuring the safeguarding of securities and funds by requiring non-
suspended clearing members to complete close-out

[[Page 20948]]

transactions in a timeframe that is consistent with OCC's liquidation 
assumptions. The proposed alignment of the close-out period with OCC's 
liquidation assumptions mitigates OCC's credit risks by reducing the 
risk that close-out prices vary too significantly from the prices used 
to mark the suspended clearing member's stock loans to market. OCC's 
proposed price-substitution authority also promotes the prompt and 
accurate clearance and settlement of stock loan transactions and 
assures the safeguarding of securities and funds under the programs by 
further encouraging non-suspended clearing members to execute close-out 
transactions in a commercially reasonable manner, thereby reducing 
financial risk to OCC.
    Finally, the proposed rule changes in the Hedge Program to permit 
OCC to terminate and re-establish a suspended clearing member's 
positions through offset and ``re-match'' promote the prompt and 
accurate clearance and settlement of securities transactions and assure 
the safeguarding of securities and funds by facilitating orderly and 
efficient termination and re-establishment of stock loans involving a 
suspended clearing member, which mitigates operational and pricing 
risks that may arise for OCC and clearing members during the recall-
and-return process. The Commission therefore finds that these aspects 
of the proposal are consistent with promoting prompt and accurate 
clearance and settlement of securities transactions and assuring the 
safeguarding of securities and funds which are in OCC's custody or 
control, or for which it is responsible.
    Based on the conclusions discussed above, the Commission finds that 
OCC's proposed rule changes are consistent with promoting the prompt 
and accurate clearance and settlement of securities transactions and 
assuring the safeguarding of securities and funds which are in OCC's 
custody or control, or for which it is responsible as a guarantor in 
the Stock Loan Programs. Accordingly, the Commission finds that the 
proposals are consistent with Section 17A(b)(3)(F) of the Act.\25\
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    \25\ 15 U.S.C. 78q-1(b)(3)(F).
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B. Consistency With Rules 17Ad-22(e)(13) and (e)(23) of the Act

    The Commission finds that OCC's proposals are consistent with Rules 
(e)(13) and (e)(23) under the Act.\26\ Rule 17Ad-22(e)(13) under the 
Act requires each covered clearing agency to establish, implement, 
maintain, and enforce policies and procedures reasonably designed to, 
among other things, ensure it has the authority and operational 
capacity to take timely action to contain losses and continue to meet 
its obligations in the event of a clearing member default.\27\ More 
generally, Rule 17Ad-22(e)(23) under the Act requires covered clearing 
agencies to establish, implement, maintain, and enforce policies and 
procedures reasonably designed to, among other things, provide for the 
public disclosure of all relevant rules and material procedures, 
including key aspects of default rules and procedures.\28\
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    \26\ 17 CFR 240.17Ad-22(e)(13), and 17 CFR 240.17Ad-22(e)(23).
    \27\ 17 CFR 240.17Ad-22(e)(13).
    \28\ 17 CFR 240.17Ad-22(e)(23).
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    The Commission believes that the proposed changes relating to 
clearing member suspension are consistent with Rule 17Ad-22(e)(13) 
under the Act. By proposing a fixed trading window in which clearing 
members must either execute close-out transactions relating to a 
clearing member suspension or opt for OCC-mandated settlements, OCC is 
seeking new authority that the Commission believes will better ensure 
that OCC can take timely actions to contain suspension-related losses 
and continue to meet stock loan-related obligations in the Stock Loan 
Programs. The Commission further believes that the proposed authority 
permitting OCC to withdraw the value of any difference between the 
clearing member-reported prices and OCC-determined close-out prices 
likewise better ensures that OCC can contain suspension-related losses, 
as clearing members would be further incentivized to execute timely 
close-out transactions at market prices. Finally, the Commission 
believes that the proposal relating to re-matching-in-suspension better 
ensures that OCC has authority and operational capacity to contain 
losses and meet obligations to clearing members in the Hedge Program, 
in particular through new rules and mechanisms that reduce the 
operational, credit, and re-execution risks attendant to the recall-
and-return process. The Commission therefore believes OCC's proposal is 
consistent with Rule 17Ad-22(e)(13) under the Act.
    The Commission also believes that OCC's proposals are consistent 
with Rule 17Ad-22(e)(23) under the Act. Each aspect of OCC's proposed 
rule change is proposed to be disclosed publicly in OCC's rules 
governing the Stock Loan Programs, including the key suspension-related 
aspects of its rules providing for close-out transaction timeframes, 
new price-substitution authority, and termination and re-matching-in-
suspension. The Commission therefore believes that OCC's proposal is 
consistent with Rules 17Ad-22(e)(23) under the Act.

III. Conclusion

    On the basis of the foregoing, the Commission finds that the 
proposed change is consistent with the requirements of the Act, and in 
particular, with the requirements of Section 17A of the Act \29\ and 
the rules and regulations thereunder.
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    \29\ In approving this proposed rule change, the Commission has 
considered the proposed rule's impact on efficiency, competition, 
and capital formation. See 15 U.S.C. 78c(f).
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    It is therefore ordered, pursuant to Section 19(b)(2) of the 
Act,\30\ that the proposed rule change (SR-OCC-2017-004) be, and it 
hereby is, approved.
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    \30\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\31\
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    \31\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-08982 Filed 5-3-17; 8:45 am]
BILLING CODE 8011-01-P