[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Notices]
[Pages 3838-3842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02114]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-85072; File No. SR-ICEEU-2019-001]
Self-Regulatory Organizations; ICE Clear Europe Limited; Notice
of Filing and Order Granting Accelerated Approval of Proposed Rule
Change Relating to Clearing Member Termination
February 7, 2019.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on January 30, 2019, ICE Clear Europe Limited (``ICE Clear Europe'' or
the ``Clearing House'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change described in Items
I and II below, which Items have been prepared by ICE Clear Europe. The
Commission is publishing this notice and order to solicit comments on
the proposed rule change from interested persons and to approve the
proposed rule change on an accelerated basis.
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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
ICE Clear Europe proposes to amend certain provisions of its
Clearing Rules \3\ relating to termination by the Clearing House of the
membership of a CDS Clearing Member.
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\3\ Capitalized terms used but not defined herein have the
meanings specified in the ICE Clear Europe Clearing Rules (the
``Rules'').
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II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries,
set forth in sections (A), (B), and (C) below, of the most significant
aspects of such statements.
(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
(a) Purpose
ICE Clear Europe proposes to amend certain provisions of its Rules
(and specifically its Continuing CDS Rule Provisions as defined
therein) relating to termination by the Clearing House of the
membership of a CDS Clearing Member.
The Continuing CDS Rule Provisions are certain provisions of the
Rules as they were in effect prior to the adoption of rule amendments
relating to recovery, wind-down and default management for the F&O
Contract Category,\4\ and which continued in effect with respect to the
CDS Contract Category, as provided in ICE Clear Europe Circular C14/012
of 31 January 2014 and in the definition thereof in the Rules.
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\4\ ICE Clear Europe adopted these rules, relating to Clearing
House recovery and wind-down for the F&O and FX Contract Categories,
in 2014. Exchange Act Release No. 34-71450 (SR-ICEEU-2014-013) (Jan.
31, 2014), 79 FR 7250 (Feb. 6, 2014).
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The Continuing CDS Rule Provisions include Rule 209 as it relates
to the CDS Contract Category and/or CDS Clearing Members. Under Rule
209(b) under the Continuing CDS Rule Provisions, the Clearing House may
terminate the clearing membership of a CDS Clearing Member on not less
than three months' notice.\5\ ICE Clear Europe proposes to change the
notice period for such a termination to 30 Business Days. Such change
would be made through an amendment to the definition of
[[Page 3839]]
``Continuing CDS Rule Provisions'' in the Rules, as set forth in
Exhibit 5.
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\5\ ICE Clear Europe may use this provision to terminate the
membership of a Clearing Member for a variety of reasons. It may,
for example, be used in a scenario where such termination is
required in order for the Clearing House and its operations to
remain in compliance with applicable laws in relevant jurisdictions.
The Clearing House has the right to terminate a CDS Clearing
Member without notice in a variety of other circumstances, generally
relating to the conduct or circumstances of the Clearing Member, as
specified in Rule 209(a) of the Continuing CDS Rule Provisions.
Those provisions would be unaffected by the proposed amendment.
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The change would make the notice period for termination of a CDS
Clearing Member consistent with the notice period for termination of an
F&O Clearing Member, which is also 30 Business Days under the Rules.
The current difference in treatment exists for historical reasons
relating the timing of the adoption of recovery, wind-down and default
management related rules for the F&O product category as compared to
the CDS product category. At this time, ICE Clear Europe does not
believe that there is a substantive reason to have a different notice
period for CDS Clearing Members. Furthermore, the current provision
creates a disparity among F&O Clearing Members, as the three-month
notice period also applies to F&O Clearing Members that are also CDS
Clearing Members, whereas the 30 Business Day notice period applies to
F&O Clearing Members that are not CDS Clearing Members.
In particular, in a scenario where ICE Clear Europe determined that
it was necessary or appropriate to terminate the membership of a
Clearing Member or a group or category of Clearing Members, ICE Clear
Europe believes that having the shorter, 30 Business Day notice period
apply to all Clearing Members, both CDS and F&O (including joint CDS
and F&O Clearing Members), will avoid the additional disruption that
would be caused by having different notice periods for different
categories of Clearing Member.
ICE Clear Europe is proposing to adopt the amendment now in
connection with the expected departure of the United Kingdom (``UK'')
from the European Union (``EU''), which pursuant to the European Union
(Withdrawal) Act 2018 will occur on March 29, 2019. When the UK ceases
to be an EU member state, there may be regulatory limitations on ICE
Clear Europe's ability to provide clearing services to persons located
in the EU. As a result, it may become necessary for ICE Clear Europe to
terminate the membership of a Clearing Member or a group or category of
Clearing Members in advance of March 29, 2019 in order for the Clearing
House to remain in compliance with applicable laws in all relevant
jurisdictions. Failure to terminate EU-based Clearing Members in that
scenario, in an orderly and timely way, could, among other
consequences, result in legal uncertainty as to the rights and
obligations of the Clearing House and its Clearing Members, and thus
cause potential disruptions to clearing operations generally, including
for clearing members in non-EU jurisdictions.
(b) Statutory Basis
ICE Clear Europe believes that the changes described herein are
consistent with the requirements of Section 17A of the Act \6\ and the
regulations thereunder applicable to it. Section 17A(b)(3)(F) of the
Act \7\ in particular requires, among other things, that the rules of
the clearing agency be designed to promote the prompt and accurate
clearance and settlement of securities transactions and, to the extent
applicable, derivative agreements, contracts and transactions, to
assure the safeguarding of securities and funds in the custody or
control of the clearing agency or for which it is responsible and, in
general, protect investors and the public interest. When the UK ceases
to be an EU member state, there may be limitations on ICE Clear
Europe's ability to provide clearing services to persons located in the
EU. As a result, it may become necessary for ICE Clear Europe to
terminate the membership of a Clearing Member or a group or category of
Clearing Members in order to remain in compliance with applicable laws
and to avoid resulting legal uncertainty and related potential
disruptions to the functioning of the Clearing House, including with
respect to default management, use and protection of margin and
guaranty fund contributions and other matters. As a result, in ICE
Clear Europe's view, the amendments will facilitate the continued
prompt and accurate clearance and settlement of cleared transactions,
the safeguarding of securities and funds in the custody or control of
ICE Clear Europe or for which it is responsible, and the protection of
investors and the public interest, within the meaning of Section
17A(b)(3)(F) of the Act.\8\
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\6\ 15 U.S.C. 78q-1.
\7\ 15 U.S.C. 78q-1(b)(3)(F).
\8\ 15 U.S.C. 78q-1(b)(3)(F).
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Section 17A(b)(3)(F) further requires that the rules of the
clearing agency not be designed to permit unfair discrimination in the
admission of participants or among participants in the use of the
clearing agency.\9\ The proposed amendments eliminate an unnecessary
distinction between the termination notice period for CDS Clearing
Members and F&O Clearing Members. In so doing, the amendments will also
better enable the Clearing House to manage any scenario in which it may
determine to terminate Clearing Members (or a category of Clearing
Members), in response to the UK's expected departure from the EU and
the resulting potential limitations on ICE Clear Europe's ability to
provide clearing services to persons located in the EU. As a result, in
ICE Clear Europe's view, the amendments will facilitate the continued
prompt and accurate clearance and settlement of cleared transactions
and will avoid unfair discrimination among Clearing Members, within the
meaning of Section 17A(b)(3)(F).\10\
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\9\ 15 U.S.C. 78q-1(b)(3)(F).
\10\ 15 U.S.C. 78q-1(b)(3)(F).
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The amendments are also consistent with Rule 17Ad-22(e)(1), which
requires in relevant part that a covered clearing agency have policies
and procedures reasonably designed to ``provide for a well-founded,
clear, transparent and enforceable legal basis for each aspect of its
activities in all relevant jurisdictions.'' \11\ As noted above, the
amendments will permit the Clearing House to terminate the membership
of CDS Clearing Members, on the same basis as F&O Clearing Members,
where the Clearing House determines it is necessary or appropriate to
do so in order to remain in compliance with applicable laws in all
relevant jurisdictions.
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\11\ 17 CFR 240.17Ad-22(e)(1).
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(B) Clearing Agency's Statement on Burden on Competition
ICE Clear Europe does not believe the proposed rule changes would
have any impact, or impose any burden, on competition not necessary or
appropriate in furtherance of the purpose of the Act. The amendments
will provide for a uniform notice period for termination of Clearing
Members, across the F&O and CDS product categories. As such, ICE Clear
Europe does not believe the amendments will in themselves materially
affect the cost of, or access to, clearing. Although the market for
cleared services may be adversely affected if ICE Clear Europe
terminates the membership of Clearing Members or categories of Clearing
Members, the amendments will, in ICE Clear Europe's view, assist with
Clearing House with mitigating and managing any such adverse
consequences. As a result, ICE Clear Europe does not believe the
proposed rule changes impose any burden on competition that is
inappropriate in furtherance of the purposes of the Act.
(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants or Others
Written comments relating to the proposed rule changes have not
been
[[Page 3840]]
solicited or received. ICE Clear Europe will notify the Commission of
any written comments received by ICE Clear Europe.\12\
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\12\ ICE Clear Europe has previously conducted public
consultations with respect to proposed rule changes (not ultimately
adopted) that included the change in termination notice period
addressed in these amendments. See ICE Clear Europe Circular C17107
(Sept. 22, 2017) and C13009 (Feb. 15, 2013), available at https://www.theice.com/clear-europe/circulars. No comments were received in
those consultations with respect to that proposed change.
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III. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml) or
Send an email to [email protected]. Please include
File Number SR-ICEEU-2019-001 on the subject line.
Paper Comments
Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-ICEEU-2019-001. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filings will also be available for inspection
and copying at the principal office of ICE Clear Europe and on ICE
Clear Europe's website at https://www.theice.com/clear-europe/regulation. 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-ICEEU-2019-001 and should be
submitted on or before March 6, 2019.
IV. Commission's Findings and Order Granting Accelerated Approval of
the Proposed Rule Change
Section 19(b)(2)(C) of the Act 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.\13\ For the reasons given below, the Commission finds
that the proposed rule change is consistent with Section 17A(b)(3)(F)
of the Act \14\ and Rule 17Ad-22(e)(1) thereunder.\15\
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\13\ 15 U.S.C. 78s(b)(2)(C).
\14\ 15 U.S.C. 78q-1(b)(3)(F).
\15\ 17 CFR 240.17Ad-22(e)(1).
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(A) Consistency with Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) of the Act requires, among other things, that
the rules of ICE Clear Europe be designed to promote the prompt and
accurate clearance and settlement of securities transactions and, to
the extent applicable, derivative agreements, contracts, and
transactions, to assure the safeguarding of securities and funds which
are in the custody or control of ICE Clear Europe or for which it is
responsible, and, in general, to protect investors and the public
interest.\16\
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\16\ 15 U.S.C. 78q-1(b)(3)(F).
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As discussed above, when the UK withdraws from the EU on March 29,
2019, ICE Clear Europe believes that, in certain circumstances, there
may be regulatory limitations on its ability to provide clearing
services to persons located in the EU. As a result, ICE Clear Europe
believes it may become necessary to terminate the membership of
Clearing Members located in the EU in advance of March 29, 2019 to
remain in compliance with applicable EU law. In that event, the
Commission believes the proposed rule change would allow ICE Clear
Europe to terminate the membership of such Clearing Members. As
discussed above, Rule 209 of the Continuing CDS Rule Provisions
currently provides CDS Clearing Members with three months' notice
before ICE Clear Europe may terminate their membership (as opposed to
30 business days for F&O Clearing Members). If, as a result of the UK
ceasing to be an EU member state on March 29, 2019, it becomes unlawful
under applicable law for ICE Clear Europe to continue providing
clearing services to persons located in the EU, under current Rule 209
ICE Clear Europe would not be able to terminate the membership of such
Clearing Members because the deadline for providing three months'
notice in advance of March 29, 2019 has already passed. By changing the
notice required for termination of CDS Clearing Members from three
months to thirty business days, consistent with the existing notice
period for F&O Clearing Members, the Commission believes that the
proposed rule change would allow ICE Clear Europe to terminate the
membership of CDS Clearing Members if it determines that doing so is
necessary to avoid providing clearing services to persons located in
the EU without legal authorization.
The Commission further understands that, in the event that it
becomes unlawful for ICE Clear Europe to provide clearing services for
persons located in the EU as a result of the UK withdrawing from the
EU, ICE Clear Europe could incur legal liability, and its personnel
could incur personal legal liability. Potential sanctions for such
legal liability could include, among other penalties, monetary
penalties and fines, potentially putting at risk funds which are in the
custody or control of ICE Clear Europe or for which it is responsible.
Moreover, providing clearing services to persons located in the EU
without legal authorization could potentially put at risk ICE Clear
Europe's ability to safeguard securities and funds held on behalf of
such persons by negating the legal basis for holding such securities
and funds. Thus, by allowing ICE Clear Europe to terminate the
membership of CDS Clearing Members located in the EU if necessary to
avoid providing clearing services to such Clearing Members in
contravention of applicable law after March 29, 2019, the Commission
believes that the proposed rule change would help assure the
safeguarding of securities and funds which are in the custody or
control of ICE Clear Europe or for which it is responsible.
Conversely, the Commission believes that, to help mitigate
potential disruption to the CDS markets that could result from the
termination of the membership of EU-based CDS Clearing Members, it
would be beneficial for ICE Clear Europe to have (i) sufficient time
prior to March 29, 2019 to determine
[[Page 3841]]
whether it will be able to provide clearing services to persons located
in the EU after the UK's withdrawal from the EU without violating
applicable law, and (ii) Rules that provide it with sufficient
flexibility to avoid prematurely terminating the membership of EU-based
CDS Clearing Members in the event that it makes such a determination.
Under the current Rule requiring three months' notice ICE Clear Europe
cannot terminate the membership of EU-based CDS Clearing Members prior
to March 29, 2019. The Commission believes that, by aligning the
termination notice period for CDS Clearing Members with the thirty
business days' notice period for F&O Clearing Members, the proposed
rule change would allow ICE Clear Europe additional time to determine
whether it will be able to provide clearing services to persons located
in the EU after the UK's withdrawal from the EU without violating
applicable law and, if no such determination is made, still provide ICE
Clear Europe sufficient time to provide notice of termination of
membership to EU-based CDS Clearing Members prior to March 29, 2019. In
allowing ICE Clear Europe to avoid prematurely or unnecessarily
terminating the membership of EU-based CDS Clearing Members, the
Commission believes that the proposed rule change would help ICE Clear
Europe avoid the potential disruptions that could result from Clearing
Members in the EU no longer being able to clear at ICE Clear Europe.
For example, if a Clearing Member in the EU is not able to clear CDS
contracts at ICE Clear Europe and is unable to either reduce its
positions or transfer them to an alternative clearing house, then the
Clearing Member may need to cease entering into CDS contracts with its
clients. Such a potential disruption to the clearing of CDS contracts
could negatively affect the prompt and accurate clearance and
settlement of such contracts, and, in general, the protection of
investors and the public interest.
Section 17A(b)(3)(F) further requires that the rules of ICE Clear
Europe not be designed to permit unfair discrimination in the admission
of participants or among participants in the use of the clearing
agency.\17\ As discussed above, the proposed rule change would resolve
a disparity in ICE Clear Europe's rules. Under the current rules,
Clearing Members that only clear F&O products are provided thirty
business days' notice before ICE Clear Europe may terminate their
membership, while Clearing Members that clear CDS contracts (including
those that also clear F&O products) are provided three months' notice.
The Commission understands that, as ICE Clear Europe explains above,
this disparity is the result of ICE Clear Europe adopting recovery,
wind-down and default management rules with respect to the F&O product
category but not yet adopting similar rules with respect to the CDS
product category. Further, the Commission agrees with ICE Clear Europe
that there is no substantive reason for this difference in notice
periods and that allowing it to continue could result in unfair
discrimination between those Clearing Members that only clear F&O
products and those Clearing Members that also clear CDS contracts. The
Commission finds that the proposed rule change would resolve this
disparity and help avoid potential unfair discrimination between F&O
Clearing Members and CDS Clearing Members.
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\17\ 15 U.S.C. 78q-1(b)(3)(F).
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For these reasons, the Commission finds that the proposed rule
change is consistent with Section 17A(b)(3)(F) of the Exchange Act.\18\
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\18\ 15 U.S.C. 78q-1(b)(3)(F).
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(B) Consistency With Rule 17Ad-22(e)(1)
Rule 17Ad-22(e)(1) requires that ICE Clear Europe establish,
implement, maintain and enforce written policies and procedures
reasonably designed to provide for a well-founded, clear, transparent,
and enforceable legal basis for each aspect of its activities in all
relevant jurisdictions.\19\
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\19\ 17 CFR 240.17Ad-22(e)(1).
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As discussed above, ICE Clear Europe believes that, in certain
circumstances, it could become unlawful under applicable law to
continue providing clearing services to EU-based Clearing Members after
the UK's withdrawal from the EU on March 29, 2019. In that event, ICE
Clear Europe may determine that it must terminate the membership of
such Clearing Members prior to that date in order to remain in
compliance with applicable law. However, because Rule 209 of the
Continuing CDS Rule Provisions currently provides CDS Clearing Members
with three months' notice before ICE Clear Europe may terminate their
membership, ICE Clear Europe would not be able to terminate the
membership of EU-based CDS Clearing Members by March 29, 2019 because
the deadline for providing notice by that time has already passed. The
Commission believes that the proposed rule change would remedy this
issue by permitting ICE Clear Europe to provide thirty business days'
notice rather than three months, which would be consistent with the
current notice requirement for F&O Clearing Members and allow ICE Clear
Europe sufficient time to determine whether it must terminate the
membership of EU-based Clearing Members and, if such a determination is
made, provide the required notice. At the same time, if ICE Clear
Europe determines that it continues to be able to comply with
applicable laws and still provide clearing services to EU-based
Clearing Members after March 29, 2019, the proposed rule change would
allow ICE Clear Europe to avoid prematurely terminating the membership
of such Clearing Members. Thus, by permitting ICE Clear Europe to
remain in compliance with applicable law and with its own Rules, and by
providing ICE Clear Europe sufficient time to determine whether it must
terminate the membership of EU-based CDS Clearing Members to remain in
compliance with applicable law, the Commission believes that the
proposed rule change would allow ICE Clear Europe to provide for a
well-founded, clear, transparent, and enforceable legal basis for its
clearing services as required by Rule 17Ad-22(e)(1).
For these reasons, the Commissions finds that the proposed rule
change is consistent with Rule 17Ad-22(e)(1).\20\
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\20\ 17 CFR 240.17Ad-22(e)(1).
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(C) Accelerated Approval of the Proposed Rule Change
In its filing, ICE Clear Europe requests that the Commission grant
accelerated approval of the proposed rule change pursuant to Section
19(b)(2)(C)(iii) of the Exchange Act.\21\ Under Section
19(b)(2)(C)(iii) of the Act,\22\ the Commission may grant accelerated
approval of a proposed rule change if the Commission finds good cause
for doing so. ICE Clear Europe believes that accelerated approval is
warranted because, in the event that ICE Clear Europe determines that
it must terminate the membership of EU-based Clearing Members to remain
in compliance with applicable law following the UK's withdrawal from
the EU on March 29, 2019, the thirty business day notice period that
would be afforded by the proposed rule change is necessary to provide
ICE Clear Europe with sufficient time prior to that date to provide
such Clearing Members with the required notice of termination.
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\21\ 15 U.S.C. 78s(b)(2)(C)(iii).
\22\ Id.
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The Commission finds good cause, pursuant to Section
19(b)(2)(C)(iii) of
[[Page 3842]]
the Act,\23\ for approving the proposed rule change on an accelerated
basis, prior to the 30th day after the date of publication of notice in
the Federal Register, because the proposed rule change is required to
permit ICE Clear Europe to terminate the membership of EU-based CDS
Clearing Members prior to the UK's withdrawal from the EU on March 29,
2019 should ICE Clear Europe determine that such termination is
necessary to remain in compliance with applicable law after that date.
Additionally, the Commission notes that the proposed rule change would
help ICE Clear Europe to avoid prematurely terminating the membership
of EU-based CDS Clearing Members in the event that ICE Clear Europe
determines that it can continue to provide clearing services to such
members after March 29, 2019 while remaining in compliance with
applicable law.
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\23\ 15 U.S.C. 78s(b)(2)(C)(iii).
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V. Conclusion
On the basis of the foregoing, the Commission finds that the
proposed rule change is consistent with the requirements of the Act and
in particular with the requirements of Section 17A(b)(3)(F) of the Act
\24\ and the Rule 17Ad-22(e)(1) \25\ thereunder.
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\24\ 15 U.S.C. 78q-1(b)(3)(F).
\25\ 17 CFR 240.17Ad-22(e)(1).
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It is therefore ordered pursuant to Section 19(b)(2) of the Act
\26\ that the proposed rule change (SR-ICEEU-2019-001) be, and hereby
is, approved on an accelerated basis.\27\
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\26\ 15 U.S.C. 78s(b)(2).
\27\ In approving the proposed rule change, the Commission
considered the proposal's impact on efficiency, competition, and
capital formation. 15 U.S.C. 78c(f).
\28\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-02114 Filed 2-12-19; 8:45 am]
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