Notice2022-16251
Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of Filing of Proposed Rule Change Relating to the Clearing Rules
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Published
July 29, 2022
Issuing agencies
Securities and Exchange Commission
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<title>Federal Register, Volume 87 Issue 145 (Friday, July 29, 2022)</title>
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[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Notices]
[Pages 45840-45844]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16251]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-95357; File No. SR-ICC-2022-012]
Self-Regulatory Organizations; ICE Clear Credit LLC; Notice of
Filing of Proposed Rule Change Relating to the Clearing Rules
July 25, 2022.
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 July 19, 2022, ICE Clear Credit LLC (``ICE Clear Credit'' or
``ICC'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared primarily by ICC. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
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I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change
The principal purpose of the proposed rule change is to implement
certain amendments to ICC's Clearing Rules (the ``Rules'') to permit it
to take advantage of certain additional settlement finality protections
under applicable UK and EU law. The text of the proposed amendments is
attached in Exhibit 5 [sic].
II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
In its filing with the Commission, ICC included statements
concerning the purpose of and basis for the proposed rule change,
security-based swap submission, or advance notice and discussed any
comments it received on the proposed rule change, security-based swap
submission, or advance notice. The text of these statements may be
examined at the places specified in Item IV below. ICC has prepared
summaries, set forth in sections (A), (B), and (C) below, of the most
significant aspects of these statements.
(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change
(a) Purpose
The purpose of the proposed changes is to modify certain provisions
of the Rules to permit the clearing house to take advantage of certain
protections for default rights and remedies under applicable United
Kingdom (``UK'') and European Union (``EU'') Settlement Finality Laws
and regulations. The amendments are expected to be principally relevant
in the case of an insolvency of an ICC clearing participant
(``Participant'') domiciled in the UK or an EU member state. The
amendments would rely on certain protections in such Settlement
Finality Laws and regulations that provide additional support (on top
of existing protections in applicable law) for the enforceability of
the clearing house's default rights and remedies under the Rules
without interference in such an insolvency.
By way of background, the EU Settlement Finality Directive \3\
introduced various insolvency-related protections in relation to
``designated systems'' used by EU participants to transfer financial
instruments and payments, and participation in those systems. The
Settlement Finality Directive aims to ensure that as a matter of EU
member state laws, transfer orders which enter into such systems are
finally settled, regardless of whether the sending participant has gone
into an insolvency process. Transfer orders for this purpose include
instructions to make cash payments (including margin payments) and
instructions to transfer securities (including as margin or in physical
settlement of a cleared transaction, if applicable). Under the
Settlement Finality Directive, transfer orders and related netting
arrangements
[[Page 45841]]
are enforceable, even in the event of insolvency proceedings against a
participant, provided that the transfer order was entered into the
system before the opening of the insolvency proceeding.\4\ Further,
under the Settlement Finality Directive, the right of the operator of a
designated system to realize and apply collateral security provided by
a participant would not be affected by insolvency proceedings against
the participant.\5\
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\3\ EU Directive 98/26/EC.
\4\ Settlement Finality Directive Article 3(1).
\5\ Settlement Finality Directive Article 9.
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``Designated systems'' are defined as formal arrangements between
three or more participants with common rules and standard arrangements
for clearing or execution of transfer orders between participants which
are governed by the law of an EU member state and have been designated
as a system and notified to the European Securities and Markets
Authority (``ESMA'').\6\ Although the Settlement Finality Directive
itself does not establish an equivalent regime for systems operated
under the laws of a non-EU member state (``third-country systems''),
such as United States (``US'') clearing houses, Recital 7 of the
Settlement Finality Directive provides that member states may choose to
apply the provisions of the Settlement Finality Directive to their
domestic institutions which participate directly in third country
systems and to collateral security provided in connection with
participation in such systems. As a result, in some EU member states it
is possible for a third country system such as ICE Clear Credit to
receive national designation or be otherwise protected as a designated
system for the purposes of that member state's national law.
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\6\ Settlement Finality Directive Article 2(a).
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The UK has implemented similar settlement finality regulations that
continue to apply following the withdrawal of the UK from the EU, and
which are also potentially applicable to UK institutions that
participate in third country systems (such as a US clearing house).\7\
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\7\ Financial Markets and Insolvency (Settlement Finality)
Regulations 1999.
As used herein, the EU Settlement Finality Directive, national
implementing legislation and the UK Settlement Finality Regulations
are collectively referred to as ``Settlement Finality Laws.''
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As discussed in further detail herein, ICE Clear Credit is
proposing to adopt amendments to its Rules to introduce explicit
provisions relating to the settlement finality of transfer orders, in
order to take advantage of the protections of Settlement Finality Laws.
Specifically, the amendments would address which ``transfer orders''
arise in its system, when they become irrevocable, who is bound by them
and when they terminate. ICE Clear Credit believes that the amendments
would facilitate obtaining the relevant protections of the Settlement
Finality Directive and UK Settlement Finality Regulations, which will
principally be relevant in the case of an insolvency of a Participant
that is domiciled in an EU member state or in the UK. The amendments
would not otherwise affect the clearing house's rights and obligations
under the Rules, including default rights and remedies, and would not
be expected to be relevant to an insolvency proceeding involving a
Participant organized in the US or otherwise outside of the EU or the
UK. ICC proposes to move forward with implementation of these changes
following Commission approval of the proposed rule change.
ICE Clear Credit would adopt a new Part 10 of the Rules addressing
Settlement Finality Laws. Rule 1000 would add a number of related
definitions, including definitions for relevant legislation and
regulations, such as ``EMIR,'' ``Financial Collateral Directive,''
``Financial Collateral Regulations,'' ``FSMA,'' ``Settlement Finality
Directive,'' ``Settlement Finality Regulations'' and ``UK EMIR.'' The
rule would also adopt key definitions relating to the settlement
finality provisions, including ``ICE Systems'' (referencing ICE Clear
Credit's trade registration, clearing processing and finance systems),
``SFD System'' (referencing the third country system operated by ICE
Clear Credit for purposes of the Settlement Finality Laws), ``Payment
Transfer Order,'' ``Securities Transfer Order'' and ``Transfer Order''
(representing the types of transfer orders used in the ICE system and
covered by the Settlement Finality Laws), ``SFD Participant''
(referencing ICE Clear Credit itself, its Participants organized in the
European Economic Area (``EEA'') or in the UK, among certain other
relevant persons), ``SFD Custodian'' (referencing a custodian located
in the EEA or the UK used by ICE Clear Credit or a Participant for the
holding or transfer of Non-Cash Collateral), ``SFD Financial
Institution'' (referencing a financial institution located in the EEA
or UK used by ICE Clear Credit or a Participant for purpose of the
deposit or transfer of cash), ``SFD Security'' (referencing a security
as defined in the Settlement Finality Laws), ``Indirect Participant''
(referencing Non-Participant Parties that fall within the definition of
indirect participant under the Settlement Finality Laws), and ``Non-
Cash Collateral'' (referencing Margin or Collateral in the form of a
security).
New Rule 1001 would set out general principles relevant to
implementation of the EU and UK settlement finality arrangements.
Subsection (a) would provide that ICC is the operator of a third
country system for purposes of relevant Settlement Finality Laws, and
that Chapter 10 of the Rules would apply to ICE Clear Credit and SFD
Participants to the extent that the Settlement Finality Laws are
applicable to such persons. Subsection (b) would require SFD
Participants to comply with actions taken by ICC pursuant to Chapter 10
and the relevant Settlement Finality Laws, and to acknowledge that the
Settlement Finality Laws modify certain otherwise applicable provisions
of insolvency laws. Subsection (c) would provide that each SFD
Participant is on notice of the provisions of Chapter 10, and by virtue
of participating in the SFD System, is deemed to agree to the
application of Chapter 10 (including in the event of any conflict with
any other agreement or obligation). Subsection (d) would provide an
additional acknowledgment that Margin and Collateral transferred to ICC
under the Rules fall within certain protections for collateral
arrangements under the Settlement Finality Laws.
New Rule 1002 would address the timing and circumstances in which
various types of Transfer Orders would arise for purposes of the ICC
SFD System, specifically Payment Transfer Orders and Securities
Transfer Orders in various circumstances, including for transfer of
positions (``Position Transfer Orders''), transfer of non-cash
collateral (``Collateral Transfer Orders''), submission of new trades
for clearing (``New Transaction Clearing Orders''), backloading trades
for clearing (``Backloaded Transaction Clearing Orders, and together
with New Transaction Clearing Orders, ``Transaction Clearing Orders''),
and physical settlement under cleared CDS contracts (``CDS Physical
Settlement Orders''). The rule would also specify the subject matter of
each type of Transfer Order (e.g., a payment in respect of a Payment
Transfer Order) and the parties in respect of which each type of
Transfer Order would apply and have effect (e.g., in the case of a
Payment Transfer Order, the affected Participant (if it is an SFD
Participant), ICE Clear Credit, and any affected SFD Financial
Institution). Rule 1002 would also address the possibility of multiple
Transfer Orders existing in respect of the same obligation (which may
exist, but would not result in the duplication
[[Page 45842]]
of any obligation), and the fact that netting or close out of Contracts
would not affect the status of Transfer Orders. The rule also states,
consistent with the general approach of the Rules, that where a
Transfer Order applies to an Indirect Participant, it would not affect
the liability of any SFD Participant pursuant to the same Transfer
Order.
Rule 1003 would specify the time at which each type of Transfer
Order (specifically, Payment Transfer Orders, Position Transfer Orders,
Collateral Transfer Orders, Transaction Clearing Orders and CDS
Physical Settlement Orders) becomes irrevocable for purposes of the
relevant Settlement Finality Laws. Payment Transfer Orders would become
irrevocable at the earlier of the time payment is received or at the
time the relevant financial institution used by ICC for this purpose
sends a SWIFT or other confirmation that payment has been made.
Collateral Transfer Orders similarly would become irrevocable at the
earlier of the time the transfer is received or a related securities
transfer order in a relevant securities transfer system becomes
irrevocable. Position Transfer Orders would become irrevocable at the
time the position transfer is recorded in the ICC systems, and
Transaction Clearing Orders would become irrevocable at the applicable
Novation Time under the Rules. CDS Physical Settlement Orders would
become irrevocable at the earliest of (1) the time the Matched Delivery
Buyer has irrevocably instructed its custodian to transfer the relevant
securities to the Matched Delivery Seller, (2) the time the relevant
instrument is delivered or assigned, or (3) the time notice is
otherwise given under the Rules that the Matched Delivery Pair have
settled the relevant Matched Delivery Contracts. Under the Rule, as
from the time when the Transfer Order becomes irrevocable, it cannot be
revoked or purported to be revoked by any SFD Participant or ICE Clear
Credit and will be binding on all SFD Participants.
Rule 1004 would address variations or cancellations of Transfers
Orders prior to the time they become irrevocable, in specified
circumstances. These circumstances include, for any Transfer Order,
cases where the order is affected by manifest or proven error or an
error agreed by all affected SFD Participants. Additional grounds for
variation or cancellation apply for particular types of Transfer Order,
including, in the case of a Payment Transfer Order or Collateral
Transfer Order, where the underlying Contract is void or avoided under
the Rules or appliable law, or amended as a result of ICC exercising
its discretion under the Rules. Transaction Clearing Orders may be
subject to variation or cancellation where the underlying trade is not
eligible for clearing or otherwise not accepted for clearing, and
Backloaded Transaction Clearing Orders may be subject to variation or
cancellation if an error or omission is noted to ICC prior to the
Novation Time. Similarly, variation or cancellation of a CDS Physical
Settlement Order may be made if a NOPS Amendment Notice is validly
delivered under the Rules or ICE Clear Credit Procedures. Under Rule
1004, in these circumstances, ICC would be permitted to make
appropriate modifications to the relevant Transfer Order, or in the
alternative to cancel the relevant Transfer Order. Rule 1004 also would
not preclude ICC from taking steps to give rise to a new Transfer Order
with opposite effect to an existing Transfer Order or part thereof.
Rule 1004 also would provide for notice of any modification or
cancellation of a Transfer Order to affected SFD Participants.
Rule 1005 would specify the circumstances under which Transfer
Orders are deemed satisfied. Specifically, Payment Transfer Orders are
satisfied upon all required payments being received in immediately
available funds or full satisfaction of the underlying obligation is
otherwise made and recorded in ICC's systems, free of any encumbrances.
Position Transfer Orders would be deemed satisfied upon becoming
irrevocable (at which time the relevant positions have been transferred
under the Rules). Collateral Transfer Orders would be deemed satisfied
upon ICC or the Participant, as applicable, receiving the Non-Cash
Collateral in its account or upon the definitive record of the assets
transferred by the Participant being updated to reflect the successful
transfer of the relevant collateral. Transaction Clearing Orders would
be deemed satisfied at the time the relevant cleared contracts arise
under the Rules. A CDS Physical Settlement Order would be deemed
satisfied at the time ICC updates its records to reflect that physical
delivery of the relevant security has been completed or the delivery
obligations of the parties are otherwise discharged or settled.
Rule 1006 would set out certain acknowledgements of ICC,
Participants and Non-Participant Parties with respect to matters
relating to Margin or Collateral to the extent they fall to be
determined under the laws of an EEA member state or the UK. The
amendments would clarify that such arrangements are subject to the EU
Financial Collateral Directive or UK Financial Collateral Regulations,
as applicable, and would provide that Participants and Non-Participant
Parties would not dispute that characterization. The amendments would
further provide that arrangements for the provision of cash Margin and
Collateral constitute ``title transfer financial collateral
arrangements'' and arrangements for the provision of Pledged Items
constitute ``security financial collateral arrangements'', in each case
for purposes of the EU Financial Collateral Directive or UK Financial
Collateral Arrangements, that all such Margin and Collateral constitute
``financial collateral'' for purposes of such laws, and that ICC has
possession or control of such Margin and Collateral for purposes of
such laws. The amendments would also state that for purposes of UK law,
the security arrangements under the Rules constitute a ``market
charge'' for purposes of the Companies Act 1989, which provides certain
protections for the enforceability of such arrangements in the event of
the insolvency of a clearing participant.
ICC also proposes to make certain amendments to Rule 611, which
currently addresses the treatment of certain Rules under various
insolvency laws and other protections for the enforceability of default
remedies in the event of the insolvency of a clearing participant. The
amendments would add a new subsection (f), which would provide that
specified Rules providing for default rights and remedies would
constitute default rules, procedures and similar arrangements as
defined for purposes of relevant EU and UK law, including EMIR, UK
EMIR, and the Settlement Finality Laws.
(b) Statutory Basis
ICE Clear Credit believes that the proposed amendments are
consistent with the requirements of Section 17A of the Act \8\ and the
regulations thereunder applicable to it, including the standards under
Rule 17Ad-22.\9\ Section 17A(b)(3)(F) of the Act \10\ requires, among
other things, that the rules of a 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, the safeguarding of securities and funds
in the custody or control of the clearing agency or for which it is
responsible, and the protection of investors and the public interest.
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\8\ 15 U.S.C. 78q-1.
\9\ 17 CFR 240.17Ad-22.
\10\ 15 U.S.C. 78q-1(b)(3)(F).
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[[Page 45843]]
The amendments are intended to permit the clearing house explicitly
to take advantage of certain additional protections for the
enforceability of default rights and remedies that may be available
under EU and UK law, principally in the context of the insolvency of a
Participant domiciled in the EU or the UK. The amendments would not
themselves change any of the existing default rights or remedies of
ICC. Rather, the amendments adopt explicit provisions relating to
settlement finality of transfer orders relating to various clearing
activities, most importantly the payment and transfer of Margin and
Collateral, and the enforcement of ICC's rights with respect thereto,
in order to facilitate potential reliance by the clearing house on
settlement finality protections existing under relevant Settlement
Finality Laws. The amendments would thus provide additional legal
certainty as to the ability of the clearing house to enforce its
default rights and remedies (including its rights to use Margin and
Collateral provided by Participants under the Rules) in the event of
the insolvency of a Participant domiciled in the EU or the UK (on top
of existing protections for the enforceability of such rights and
remedies on which the clearing house may currently rely). As such, the
amendments are, in ICC's view, consistent with the prompt and accurate
clearance and settlement of securities transactions and derivative
agreements, contracts and transactions, the safeguarding of securities
and funds in the custody or control of the clearing agency or for which
it is responsible, and the protection of the investors and the public
interest, within the meaning of Section 17A(b)(3)(F).\11\
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\11\ 15 U.S.C. 78q-1(b)(3)(F).
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Moreover, the amendments are consistent with relevant provisions of
Rule 17Ad-22.\12\ In particular, Rule 17Ad-22(e)(1) requires that each
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.'' \13\ As
discussed above, the amendments would provide an additional legal basis
to support the enforceability of the clearing house's default rules in
the context of an insolvency of a Participant that is domiciled in an
EU member state or in the UK. The amendments would in particular
facilitate the clearing house's taking advantage of protections for the
enforceability of transfer orders, including in default scenarios,
based on the EU Settlement Finality Directive and UK Settlement
Finality Regulations. The amendments thus enhance the legal certainty
of the framework supporting ICC's activities in those jurisdictions. As
a result, ICC believes the amendments are consistent with the
requirements of Rule 17Ad-22(e)(1).\14\
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\12\ 17 CFR 240.17Ad-22.
\13\ 17 CFR 240.17Ad-22(e)(1).
\14\ 17 CFR 240.17Ad-22(e)(1).
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Rule 17Ad-22(e)(13) requires that each covered clearing agency
``establish, implement, maintain and enforce written policies and
procedures reasonably designed to . . . ensure the covered clearing
agency has the authority and operational capacity to take timely action
to contain losses and liquidity demands and continue to meet its
obligations . . .'' \15\ As discussed herein, ICC is not proposing to
change the substance of its existing default remedies and procedures
under the Rules and the ICE Clear Credit Procedures. The amendments to
the Rules are intended to enhance the legal certainty of those existing
default remedies and procedures in the context of an insolvency of a
clearing participant domiciled in the EU or the UK by facilitating the
clearing house's ability to take advantage of protections for transfer
orders under applicable Settlement Finality Laws. As such, in ICC view,
the amendments will further compliance with the requirements of Rule
17Ad-22(e)(13).\16\
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\15\ 17 CFR 240.17Ad-22(e)(13).
\16\ 17 CFR 240.17Ad-22(e)(13).
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(B) Clearing Agency's Statement on Burden on Competition
ICE Clear Credit does not believe the proposed amendments would
have any impact, or impose any burden, on competition not necessary or
appropriate in furtherance of the purposes of the Act. The amendments
will not change the substantive default rights and remedies under the
Rules, and so will not affect the rights or obligations of ICC itself
or those of Participants. The changes are intended to enhance the legal
certainty of existing clearing house default rights and remedies in the
context of the insolvency of a Participant domiciled in the UK or EU,
and thereby enhance the overall clearing framework. As a result, ICE
Clear Credit does not believe the amendments will impact competition
among clearing members or other market participants, adversely affect
the ability of market participants to access clearing generally, or
adversely affect the cost of clearing. ICE Clear Credit thus does not
believe the proposed amendments would have any impact, or impose any
burden, on competition not necessary or appropriate 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 amendments have not been
solicited or received by ICE Clear Credit. ICE Clear Credit will notify
the Commission of any comments received with respect to the proposed
rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
<bullet> Use the Commission's internet comment form (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>); or
<bullet> Send an email to <a href="/cdn-cgi/l/email-protection#fd8f889198d09e9290909893898ebd8e989ed39a928b"><span class="__cf_email__" data-cfemail="a9dbdcc5cc84cac6c4c4ccc7dddae9daccca87cec6df">[email protected]</span></a>. Please include
File Number SR-ICC-2022-012 on the subject line.
Paper Comments
<bullet> Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549.
All submissions should refer to File Number SR-ICC-2022-012. 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 (<a href="http://www.sec.gov/rules/sro.shtml">http://www.sec.gov/rules/sro.shtml</a>).
Copies of the submission, all subsequent
[[Page 45844]]
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 Credit and on ICE Clear Credit's website
at <a href="https://www.theice.com/clear-credit/regulation">https://www.theice.com/clear-credit/regulation</a>.
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-ICC-2022-012 and should be
submitted on or before August 19, 2022.
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\17\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\17\
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-16251 Filed 7-28-22; 8:45 am]
BILLING CODE 8011-01-P
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