Notice2021-22438
Self-Regulatory Organizations; National Securities Clearing Corporation; Order Approving the Proposed Rule Change Relating to Confidential Information, Market Disruption Events, and Other Changes
Primary source
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Published
October 14, 2021
Issuing agencies
Securities and Exchange Commission
Full Text
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<title>Federal Register, Volume 86 Issue 196 (Thursday, October 14, 2021)</title>
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[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Notices]
[Pages 57229-57234]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22438]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93278; File No. SR-NSCC-2021-007]
Self-Regulatory Organizations; National Securities Clearing
Corporation; Order Approving the Proposed Rule Change Relating to
Confidential Information, Market Disruption Events, and Other Changes
October 8, 2021.
I. Introduction
On June 25, 2021, National Securities Clearing Corporation
(``NSCC'') filed with the Securities and Exchange Commission
(``Commission'') proposed rule change SR-NSCC-2021-007 (the ``Proposed
Rule Change'') pursuant to Section 19(b)(1) of the Securities Exchange
Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder \2\ to amend NSCC's
[[Page 57230]]
rules relating to confidentiality requirements, Market Disruption
Events, and procedures for disconnecting a participant from NSCC's
network, among other changes.\3\ The Proposed Rule Change was published
for comment in the Federal Register on July 13, 2021.\4\ The Commission
received comments that it has considered with respect to the Proposed
Rule Change.\5\ For the reasons discussed below, the Commission is
approving the Proposed Rule Change.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Notice of Filing, infra note 4, at 86 FR 36815.
\4\ See Securities Exchange Act Release No. 92334 (June 25,
2021), 86 FR 36815 (July 13, 2021) (File No. SR-NSCC-2021-007)
(``Notice of Filing'').
\5\ Specifically, the Commission received comments on a proposed
rule change filed by NSCC's affiliate, the Depository Trust Company,
regarding parallel changes to DTC's Rules. See Securities Exchange
Act Release No. 92342 (June 25, 2021), 86 FR 36833 (July 13, 2021)
(File No. SR-DTC-2021-011). The comment letters are available on the
Commission's website at <a href="https://www.sec.gov/comments/sr-dtc-2021-011/srdtc2021011.htm">https://www.sec.gov/comments/sr-dtc-2021-011/srdtc2021011.htm</a>. Because the comments address issues that also
appear in this Proposed Rule Change, the Commission has considered
it in connection with NSCC's proposal as well. Several comments
generally supported the Proposed Rule Change, and the Commission
considers the additional comments in its analysis at Section III
infra.
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II. Description of the Proposed Rule Change
Pursuant to the Proposed Rule Change, NSCC is proposing three main
changes to its Rules & Procedures (``Rules''): \6\ (1) Standardizing
the confidentiality requirement applicable to NSCC with respect to its
participants' information and adding confidentiality requirement
applicable to participants with respect to NSCC's information, (2)
updating its Market Disruption and Force Majeure Rule (``Force Majeure
Rule'') to authorize two additional officers to determine that a Market
Disruption Event has occurred, and (3) adding a new rule setting forth
the procedures under which NSCC would be able to disconnect a
participant from its network in certain circumstances (``Systems
Disconnect Rule''). The Commission provides relevant background and
describes each of these proposed changes in greater detail below.
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\6\ Capitalized terms not defined herein are defined in the
Rules, available at https://dtcc.com/~/media/Files/Downloads/legal/
rules/nscc_rules.pdf.
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A. Background
NSCC provides clearance, settlement, risk management, central
counterparty services, and a guarantee of completion for virtually all
broker-to-broker trades involving equity securities, corporate and
municipal debt securities, American depository receipts, exchange
traded funds, and unit investment trusts. In light of NSCC's critical
role in the marketplace, NSCC was designated a Systemically Important
Financial Market Utility (``SIFMU'') under Title VIII of the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010.\7\ Due to
NSCC's unique position in the marketplace, a failure or a disruption to
NSCC could, among other things, significantly disrupt settlement of
securities transactions cleared by NSCC and increase the risk of
substantial liquidity problems spreading among financial institutions
or markets, and thereby threaten the stability of the financial system
in the United States.\8\
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\7\ 12 U.S.C. 5465(e)(1); Financial Stability Oversight Counsel
2012 Annual Report, Appendix A (``FSOC 2012 Report''), available at
<a href="http://www.treasury.gov/initiatives/fsoc/Documents/2012%20Annual%20Report.pdf">http://www.treasury.gov/initiatives/fsoc/Documents/2012%20Annual%20Report.pdf</a>.
\8\ See FSOC 2012 Report, supra note 7.
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NSCC participants connect to NSCC's systems, either directly
through the Securely Managed and Reliable Technology (``SMART'')
network or through a third party service provider or service bureau.\9\
NSCC's parent company, The Depository Trust & Clearing Corporation
(``DTCC'') manages the SMART network, which connects a nationwide
complex of networks, processing centers, and control facilities.\10\
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\9\ See Securities Exchange Act Release No. 87696 (December 9,
2019), 84 FR 68243 (December 13, 2019) (File No. SR-NSCC-2019-003)
(describing the DTCC SMART network).
\10\ DTCC provides a set of core business processes for NSCC and
DTCC's other subsidiaries, including the technology systems and
networks, that provide connectivity between NSCC and its
participants and that provide NSCC with the ability to provide its
services as required under the Rules. Most corporate functions are
established and managed on an enterprise-wide basis pursuant to
intercompany agreements under which it is generally DTCC that
provides services to NSCC and DTCC's other subsidiaries.
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B. Proposed Changes
1. Confidentiality Requirements
Confidentiality Requirements Applicable to NSCC: NSCC collects
confidential information from its participants to assess whether each
participant meets NSCC's membership requirements either to gain or
continue access to NSCC's clearance and settlement services.\11\ In
turn, NSCC is required to maintain the confidentiality of any
information furnished by its participants. Currently, NSCC's Rules
obligate NSCC to hold participants' information in the same degree of
confidence as may be required by law or the rules and regulations
(hereinafter collectively, ``regulations'') of the appropriate
regulatory body having jurisdiction over the participant.\12\
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\11\ See Rule 2A, supra note 6 (establishing NSCC's right to
require applicants to furnish information to become Members or
Limited Members of NSCC); and Rule 15, supra note 4 (establishing
NSCC's right to require participants to furnish information relating
to assurances of financial responsibility and operational
capability).
\12\ See Section 1.C. of Rule 2A and Section 3 of Rule 15, supra
note 6.
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NSCC states that its current Rules create ambiguity because NSCC's
obligations depend on each participant's regulatory requirements, which
could lead to unequal treatment of participants and conflicts of law
with NSCC's regulatory requirements or with respect to a participant
who is subject to multiple jurisdictions' regulations.\13\ NSCC also
states that applying different standards creates operational burdens
because NSCC must track the regulations applicable to each of its
participants and must maintain the confidentiality of each
participant's information to the same degree as required by the
applicable regulations.\14\
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\13\ See Notice of Filing, supra note 4, at 36816.
\14\ See id.
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In order to clarify its confidentiality requirements and to enhance
its operational efficiency, NSCC proposes to revise its Rules to
establish a standard, which will require NSCC to hold participant
confidential information to the same degree as NSCC's regulatory
requirements that relate to the confidentiality of records, and to
remove the references to each participant's particular regulatory
obligations. NSCC represents that the proposed change would provide
participants with similar protections because NSCC believes its
regulatory requirements are comparable to the regulations applicable to
its participants and, therefore, would not result in changes to NSCC's
current practices or the protection offered to its participants'
confidential information.\15\
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\15\ See id.
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Confidentiality Requirements Applicable to Participants: NSCC's
Rules do not include obligations for its participants to protect
confidential information furnished by NSCC or its affiliates.\16\
However, NSCC states that, in connection with the development of cyber
and information security programs pursuant to applicable participant
regulatory requirements, NSCC and DTCC have received an increasing
number of requests from
[[Page 57231]]
participants for confidential information, such as information
regarding DTCC's network operations, data security practices, and legal
settlements.\17\ Additionally, NSCC states that participants may
request NSCC or DTCC to disclose confidential information regarding its
cyber threat indicators, sources of cyber threat information, or other
information and actions taken following a cyber incident relating to a
participant, NSCC, or DTCC.\18\
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\16\ NSCC states that, historically, it has generally not
provided, nor been requested to provide, information that contains
confidential or proprietary information of NSCC or its affiliates to
its participants except for information necessary for participants
to connect to DTCC Systems, which is typically protected under
intellectual property laws. See id.
\17\ See Notice of Filing, supra note 4, at 36817. See also,
supra discussion in Section II.A (Background) relating to DTCC
Systems.
\18\ See Notice of Filing, supra note 4, at 36817.
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To facilitate information sharing by NSCC while protecting the
confidentiality of proprietary and confidential information NSCC shares
with its participants, NSCC proposes to add participant confidentiality
requirements to its Rules. The new provisions will require participants
to maintain the confidentiality of information furnished by NSCC
through proper safeguards to prevent disclosure of such confidential
information, except as necessary to perform its obligations under
NSCC's Rules or as otherwise required by applicable law. NSCC proposes
that participants be required to maintain the confidentiality of this
information to the same extent and using the same means the participant
uses to protect its own confidential information, but no less than a
reasonable standard of care. NSCC's proposal will also entitle NSCC or
DTCC to seek any temporary or permanent injunctive or other equitable
relief in addition to any monetary damages under the Rules if a
participant breaches its confidentiality requirements. Additionally,
NSCC's proposal will entitle NSCC to impose other disciplinary
proceedings or restrictions on access to services for a participant's
failure to comply with its confidentiality requirements, consistent
with the existing tools available to NSCC regarding a participant's
failure to comply with its Rules.
2. Market Disruption Event
NSCC's Rules contain provisions that identify the events or
circumstances that NSCC would consider to be a Market Disruption Event,
including, for example, events that lead to the suspension or
limitation of trading or banking in the markets in which NSCC operates,
or the unavailability or failure of any material payment, bank
transfer, wire or securities settlement systems.\19\ Upon the
declaration of a Market Disruption Event, NSCC's Rules provide NSCC
with tools to address such an event, such as suspending any or all
services and taking, or requiring participants to take, any actions
NSCC considers appropriate to facilitate the continuation of NSCC's
services.\20\
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\19\ See Rule 60, supra note 6. See also Securities Exchange Act
Release Nos. 83955 (August 27, 2018), 83 FR 44340 (August 30, 2018)
(File No. SR-NSCC-2017-805); 83974 (August 28, 2018), 83 FR 44988
(September 4, 2018) (File No. SR-NSCC-2017-017).
\20\ See Rule 60, supra note 6.
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Currently, NSCC's Board of Directors may declare a Market
Disruption Event and may take any actions authorized by NSCC's Rules to
address the event.\21\ However, NSCC's Rules also authorize certain
officers to make an interim declaration of a Market Disruption Event,
to allow NSCC to prevent delays in addressing a Market Disruption Event
if the Board of Directors is unable to convene.\22\ In the event of
such an interim declaration, the Board of Directors must ratify,
modify, or rescind the officer's determination as soon as
practicable.\23\ Currently, the officers authorized to make such
determination are the Chief Executive Officer, Chief Financial Officer,
Group Chief Risk Officer, and General Counsel.\24\
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\21\ See Section 2 of Rule 60, id.
\22\ See id.
\23\ See id.
\24\ See id.
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NSCC proposes to add two additional officers of NSCC, the Chief
Information Officer and the Head of Clearing Agency Services, to the
list of authorized officers that could make such an interim
determination if the Board of Directors is unable to convene. NSCC
states these two officers, like the other officers currently provided
in the Rules, maintain senior executive level positions at NSCC,
oversee divisions of NSCC, and hold positions at NSCC that would
provide them a necessary global view into NSCC's operations and systems
to enable them to determine the existence of a Market Disruption
Event.\25\ NSCC states adding these two additional officers would
facilitate NSCC's ability to implement its emergency procedures in the
event of a Market Disruption Event.\26\
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\25\ See Notice of Filing, supra note 4, at 36817.
\26\ See id.
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3. Systems Disconnect Rule
As mentioned above in Section II.A (Background), NSCC's
participants connect to NSCC's systems, either through the DTCC-managed
SMART network or through other electronic means, such as through a
third party service provider or service bureau. NSCC's Rules do not
address NSCC's ability to disconnect a participant whose network
connection risks harming NSCC's systems. NSCC's proposal will establish
procedures under which NSCC would be able to disconnect a participant
from its network due to the risk of an imminent threat to NSCC,
participants, or other market participants.\27\
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\27\ See Notice of Filing, supra note 4, at 36817.
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NSCC's proposal will address NSCC's authority to take certain
actions upon the occurrence, and during the pendency, of a Major Event.
A ``Major Event'' will be defined as the happening of one or more
``Systems Disruptions'' reasonably likely to have a significant impact
on NSCC's operations, including ``DTCC Systems,'' \28\ that affect the
business, operations, safeguarding of securities or funds, or physical
functions of NSCC, its participants, or other market participants.
``Systems Disruption'' will, in turn, be defined as the unavailability,
failure, malfunction, overload, or restriction (whether partial or
total) of a DTCC Systems Participant's systems that disrupts or
degrades the normal operation of such DTCC Systems Participant's
systems; or anything that impacts or alters the normal communication or
the files that are received, or information transmitted, to or from the
DTCC Systems.
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\28\ ``DTCC Systems'' will be defined as the systems, equipment
and technology networks of DTCC, NSCC and/or their Affiliates,
whether owned, leased, or licensed, software, devices, IP addresses
or other addresses or accounts used in connection with providing the
services set forth in the Rules, or used to transact business or to
manage the connection with NSCC.
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NSCC's proposal would also provide governance procedures applicable
to NSCC's determination whether, and how, to implement the provisions
of the Systems Disconnect Rule. The same officers with delegated
authority under the Force Majeure Rule may make a determination that a
Major Event has occurred. As discussed in Section II.B.2 (Market
Disruption Event) above, NSCC states these officers maintain senior
executive level positions at NSCC, oversee divisions of NSCC, and hold
positions at NSCC that would provide them a necessary global view into
NSCC's operations and systems to enable them to determine the existence
of a Market Disruption Event, which would also enable them to determine
the existence of a Major Event.
However, the proposed process for declaring a Major Event, by
contrast, would start with a designated officer, whereas, for a Market
Disruption Event, the officer would make an interim determination only
if the Board of Directors were unable to timely convene. NSCC states it
designed the
[[Page 57232]]
process in this way to improve its ability to respond quickly,
efficiently, and effectively to a Major Event that arises abruptly.\29\
Following this determination, any management committee including all of
the officers authorized to determine a Major Event would convene, and
NSCC would convene a Board of Directors meeting as soon as practicable
thereafter, and in any event within five Business Days following such
determination, to ratify, modify, or rescind the Officer Major Event
Action.\30\
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\29\ See Notice of Filing, supra note 4, at 36818.
\30\ See id.
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In addition, the proposed rule will require participants to notify
NSCC immediately upon becoming aware of a Major Event, and, likewise,
will require NSCC to notify its participants promptly of any action
NSCC takes or intends to take with respect to a Major Event.\31\
Finally, the proposal will address certain miscellaneous related
matters including: (i) A limitation of liability for any failure or
delay in performance, in whole or in part of NSCC's obligations under
the Rules, arising out of or related to a Major Event, (ii) a statement
that NSCC's power to take any action pursuant to the Systems Disconnect
Rule also includes the power to repeal, rescind, revoke, amend or vary
such action, (iii) a statement that NSCC's powers pursuant to the
Systems Disconnect Rule shall be in addition to, and not in derogation
of, authority granted elsewhere in the Rules to take action as
specified therein, (iv) a requirement that participants shall keep any
confidential information provided to them by NSCC in connection with a
Major Event confidential, and (v) a statement that in the event of any
conflict between the provisions of the Systems Disconnect Rule and any
other Rules or Procedures, the provisions of the Systems Disconnect
Rule would prevail.
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\31\ See id.
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III. Discussion and Commission Findings
Section 19(b)(2)(C) of the Act \32\ 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. After careful consideration, the
Commission finds that the Proposed Rule Change is consistent with the
requirements of the Act and the rules and regulations applicable to
NSCC. In particular, the Commission finds that the Proposed Rule Change
is consistent with Section 17A(b)(3)(F) \33\ of the Act and Rules 17Ad-
22(e)(1),\34\ (e)(2),\35\ and (e)(17)(i) \36\ thereunder.
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\32\ 15 U.S.C. 78s(b)(2)(C).
\33\ 15 U.S.C. 78q-1(b)(3)(F).
\34\ 17 CFR 240.17Ad-22(e)(1).
\35\ 17 CFR 240.17Ad-22(e)(2).
\36\ 17 CFR 240.17Ad-22(e)(17)(i).
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A. Consistency With Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) \37\ of the Exchange Act requires, in part,
that the rules of a clearing agency, such as NSCC, be designed, in
part, to promote the prompt and accurate clearance and settlement of
securities transactions and to 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 finds that the Proposed
Rule Change is consistent with Section 17A(b)(3)(F) of the Act \38\ for
the reasons discussed below.
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\37\ 15 U.S.C. 78q-1(b)(3)(F).
\38\ Id.
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As described above in Section II.B.1 (Confidentiality
Requirements), NSCC proposes to revise its Rules to establish a
standard relating to NSCC's obligation to maintain the confidentiality
of information it collects from participants to assess each
participant's compliance with NSCC's membership requirements. The
Commission believes such a uniform standard will help NSCC meet its
obligations and will help each participant better understand NSCC's
obligations for maintaining the confidential information it shares with
NSCC, which, in turn, may facilitate the sharing of such information
and improve NSCC's ability to evaluate its participants' eligibility to
access NSCC's clearance and settlement services.
Also, as described above in Section II.B.1 (Confidentiality
Requirements), NSCC proposes to add participant confidentiality
requirements to its Rules to ensure participants maintain the
confidentiality of information NSCC shares, which participants may then
use to determine whether to participate in NSCC's clearance and
settlement services by understanding NSCC system requirements and NSCC
system safeguards. The Commission believes participant confidentiality
requirements will help each participant better understand its rights
and obligations for maintaining the confidential information NSCC
shares, which, in turn, may facilitate participant compliance.
Therefore, the Commission believes the proposed changes to NSCC and
participant confidentiality requirements are consistent with promoting
the prompt and accurate clearance and settlement of securities
transactions by NSCC.
As described above in Section II.B.2 (Market Disruption Event) and
Section II.B.3 (Systems Disconnect Rule), risks, threats, and potential
vulnerabilities due to a Market Disruption Event or a Major Event could
impede NSCC's ability to provide its clearance and settlement services.
NSCC proposes to add two officers authorized to make an interim
determination that a Market Disruption Event has occurred if the Board
of Directors is unable to timely convene. The Commission believes the
proposed change will improve NSCC's ability to respond quickly to a
Market Disruption Event, which could help NSCC mitigate the impact of
such event on NSCC, its participants, and the broader market.
Additionally, as described above in Section II.B.3 (Systems
Disconnect Rule), NSCC proposes to add the Systems Disconnect Rule,
which will set forth the procedures under which NSCC would be
authorized, upon the occurrence of a Major Event (as defined in the
proposed rules), to take certain actions, including disconnecting a
participant from NSCC's systems, suspending data transmissions between
NSCC and the participant, and requiring the participant to take other
actions necessary to protect NSCC and its participants. The Commission
believes the proposed Systems Disconnect Rule will enable NSCC to
respond quickly to a potential cyber threat or other network
disruption, which could help NSCC prevent the spread of a participant's
systems disruptions to NSCC, its participants, and other market
participants that could otherwise cause losses to NSCC or its
participants.
One commenter suggests certain revisions to the definition of Major
Event so that certain terms in the Systems Disconnect Rule are
consistent with the definition of Market Disruption Event in the Force
Majeure Rule.\39\ The Commission disagrees. Consistency between the
Systems Disconnect Rule and Force Majeure Rule is not necessary because
NSCC designed the Systems Disconnect Rule for a different purpose.
Although both rules relate to events that, if left unaddressed, could
affect NSCC's ability to provide clearance and settlement services, the
Force Majeure Rule is designed to cover events caused by external
forces that impact NSCC and its participants, whereas the Systems
Disconnect Rule is designed only to
[[Page 57233]]
cover disruptions to participant's computer systems or network that
could flow through to NSCC systems. Therefore, differences between the
two rules do not raise consistency concerns, because of their different
purposes.\40\
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\39\ See letter from Anonymous, dated July 28, 2021, supra note
5.
\40\ The commenter also suggests adding language to the end of
the Major Event definition to indicate that, to avoid doubt, a Major
Event would not include disruptions due to normal market forces. The
Commission does not believe that such additional language is
necessary because, as discussed above in Section II.B.3 (Systems
Disconnect Rule), a Major Event is limited to one or more ``Systems
Disruption(s)'' (as defined in the proposed rule), which is properly
limited to disruptions to participant systems or its network
connection.
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Therefore, for the reasons described above, the Commission believes
the proposed changes relating to a Market Disruption Event or a Major
Event will help promote the prompt and accurate clearance and
settlement of securities transactions and with assuring NSCC safeguards
securities and funds that are in its custody or control or for which it
is responsible. Accordingly, the Commission finds that the
implementation of the Proposed Rule Change is consistent with Section
17A(b)(3)(F) of the Act.\41\
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\41\ 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) under the Exchange Act requires that a covered
clearing agency 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.\42\ The Commission
finds that the Proposed Rule Change is consistent with Rule 17Ad-
22(e)(1) of the Exchange Act \43\ for the reasons discussed below.
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\42\ 17 CFR 240.17Ad-22(e)(1).
\43\ Id.
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As described above in Sections II.B.1 (Confidentiality
Requirements) and II.B.2 (Market Disruption Event), NSCC proposes to
establish a consistent standard for its obligation to maintain the
confidentiality of information it collects from its participants and to
establish participant confidentiality requirements. The Commission
believes a consistent standard for NSCC's confidentiality requirements
will provide for clear and transparent standard rules for participants,
rather than maintaining potentially different confidentiality standards
for participants based on the various, unrelated regulatory bodies
governing those participants. Additionally, the Commission believes
that imposing specific legal standards applicable to both NSCC and its
participants to follow will provide for a well-founded legal basis for
the sharing and maintaining of confidential information between NSCC
and its participants.\44\
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\44\ One commenter suggests adding an exception for negligence
or fraud to the limitation of liability clause in the proposed
Systems Disconnect Rule, which the commenter states is customary
contractual language. See letter from Anonymous, dated July 28,
2021, supra note 5. The Commission notes NSCC has already included
similar language in its Rules, which would be applicable to this
aspect of the proposal. See Section 2 of Rule 58, supra note 6
(providing for NSCC liability to its participants for ``gross
negligence, willful misconduct, or violations of Federal securities
laws for which there is a private right of action'' notwithstanding
any other provision in the Rules).
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Accordingly, the Commission finds that the implementation of the
Proposed Rule Change is consistent with Rule 17Ad-22(e)(1) of the
Exchange Act.\45\
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\45\ 17 CFR 240.17Ad-22(e)(1).
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C. Consistency With Rule 17Ad-22(e)(2)
Rule 17Ad-22(e)(2) under the Exchange Act requires, in part, that a
covered clearing agency establish, implement, maintain and enforce
written policies and procedures reasonably designed to provide for
governance arrangements that are clear and transparent and that specify
clear and direct lines of responsibility.\46\ The Commission finds that
the Proposed Rule Change is consistent with Rule 17Ad-22(e)(2) of the
Exchange Act \47\ for the reasons discussed below.
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\46\ 17 CFR 240.17Ad-22(e)(2).
\47\ Id.
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The Commission believes NSCC's proposal, as described above in
Section II.B.2 (Market Disruption Event), to add two officers
authorized to make an interim determination of a Market Disruption
Event if the Board of Directors is unable to convene in a timely manner
provides for governance arrangements that are clear and transparent and
that provide clear and direct lines of responsibility. Likewise, the
Commission believes NSCC's proposal to identify the officers authorized
to make an interim determination of a Major Event, which will then be
ratified, modified, or rescinded by the management committee and the
Board of Directors will provide for clear and transparent governance
procedures and will specify clear and direct lines of responsibility.
Accordingly, the Commission finds that the implementation of the
Proposed Rule Change is consistent with Rule 17Ad-22(e)(2) of the
Exchange Act.\48\
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\48\ Id.
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D. Consistency With Rule 17Ad-22(e)(17)(i)
Rule 17Ad-22(e)(17)(i) under the Exchange Act requires that a
covered clearing agency establish, implement, maintain and enforce
written policies and procedures reasonably designed to manage the
covered clearing agency's operational risks by identifying the
plausible sources of operational risk, both internal and external, and
mitigating their impact through the use of appropriate systems,
policies, procedures, and controls.\49\ The Commission finds that the
Proposed Rule Change is consistent with Rule 17Ad-22(e)(17)(i) of the
Exchange Act \50\ for the reasons discussed below.
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\49\ 17 CFR 240.17Ad-22(e)(17)(i).
\50\ Id.
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The Commission believes NSCC's proposal, as described above in
Section II.B.2 (Market Disruption Event), to add two officers
authorized to make an interim determination of a Market Disruption
Event could help NSCC mitigate the impact of a Market Disruption Event
by ensuring NSCC can respond quickly to such event if the Board of
Directors were unable to convene in a timely manner. Likewise, the
Commission believes the proposed Systems Disconnect Rule, as described
in Section II.B.3 above, provides a rules-based process that will
enable NSCC to identify potential cyber threats or other network
disruptions, which could help NSCC prevent the spread of a
participant's systems disruptions to NSCC, its participants, and other
market participants that could otherwise cause losses to NSCC or its
participants.
One commenter suggests revising the definition of Major Event to be
consistent with the definition of Market Disruption Event in the Force
Majeure Rule.\51\ The commenter further argues the impact to NSCC
covered by the definition of Major Event should be limited to ``DTCC
Systems'' (as defined in the proposed rule) to ensure the scope of the
proposed rule is limited to technical systems.\52\ The Commission
disagrees. As noted above, the purposes of both the Force Majeure Rule
and the Systems Disconnect Rule are different. The Force Majeure Rule
is designed to cover events external to NSCC and its participants that
materially impact, or are likely to materially impact, NSCC's ability
to provide its clearance and settlement services. The Systems
[[Page 57234]]
Disconnect Rule, by contrast, is designed to cover a participant's
systems or network disruption, which through its connection to NSCC, is
reasonably likely to have a significant impact on NSCC's systems. The
differences between the rules' purposes support the need for differing
standards.\53\ Furthermore, the Commission notes the reference to
``including DTCC Systems'' in the proposed definition of Major Event
takes into account how NSCC's operations, i.e., its clearance and
settlement services, work, in that they utilize DTCC Systems.
Consequently, the commenter's proposed revisions are not necessary.\54\
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\51\ Specifically, the commenter suggests deleting reference to
``reasonably'' and by replacing ``significant'' with ``material''
when describing the likelihood and level of impact to NSCC. See
letter from Anonymous, dated July 28, 2021, supra note 5.
\52\ See id.
\53\ The Commission also disagrees with the commenter's
suggestion to remove the references to ``reasonably'' with respect
to the likelihood of an event impacting NSCC's operations. The
Commission believes that NSCC's assessment of the likelihood of such
an impact should be reasonable before taking actions like
disconnecting a participant from its systems. In addition, the
Commission notes that NSCC's references to ``reasonably likely'' and
``significant impact'' in the proposed definition of Major Event are
consistent with the Commission's definition of a ``Major SCI Event''
under Regulation SCI. 17 CFR 242.1000. Likewise, the Commission
notes that references in the proposed rule text to ``reasonable
basis'' and ``appropriate'' is consistent with the obligations
related to a Major SCI Event under Regulation SCI. 17 CFR 242.1002.
\54\ Another commenter expressed concern that the proposed
Systems Disconnect Rule could be used to benefit the trading
activity of certain participants at the detriment of disconnected
participants. See letter from Jarrod Knudson, dated June 27, 2021,
supra note 5. The Commission disagrees because the proposed rule, by
its terms, would only apply when certain Systems Disruptions occur
at a participant that could impact NSCC's operations.
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Accordingly, the Commission finds that the implementation of the
Proposed Rule Change is consistent with Rule 17Ad-22(e)(17)(i) of the
Exchange Act.\55\
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\55\ 17 CFR 240.17Ad-22(e)(17)(i).
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IV. 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 of the Act \56\ and
the rules and regulations promulgated thereunder.
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\56\ 15 U.S.C. 78q-1.
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It is therefore ordered, pursuant to Section 19(b)(2) of the Act
\57\ that Proposed Rule Change SR-NSCC-2021-007, be, and hereby is,
approved.\58\
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\57\ 15 U.S.C. 78s(b)(2).
\58\ In approving the Proposed Rule Change, the Commission
considered the proposals' impact on efficiency, competition, and
capital formation. 15 U.S.C. 78c(f).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\59\
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\59\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-22438 Filed 10-13-21; 8:45 am]
BILLING CODE 8011-01-P
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</html>Indexed from Federal Register on October 14, 2021.
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