[Federal Register Volume 83, Number 5 (Monday, January 8, 2018)]
[Notices]
[Pages 841-854]
[FR Doc No: 2018-00078]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82430; File No. SR-NSCC-2017-017]

Self-Regulatory Organizations; National Securities Clearing
Corporation; Notice of Filing of a Proposed Rule Change To Adopt a
Recovery & Wind-down Plan and Related Rules

January 2, 2018.
    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 December 18, 2017, National Securities Clearing Corporation
(``NSCC'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II
and III below, which Items have been prepared by the clearing
agency.\3\ The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ On December 18, 2017, NSCC filed this proposed rule change
as an advance notice (SR-NSCC-2017-805) with the Commission pursuant
to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street
Reform and Consumer Protection Act entitled the Payment, Clearing,
and Settlement Supervision Act of 2010, 12 U.S.C. 5465(e)(1), and
Rule 19b-4(n)(1)(i) of the Act, 17 CFR 240.19b-4(n)(1)(i). A copy of
the advance notice is available at http://www.dtcc.com/legal/sec-rule-filings.
---------------------------------------------------------------------------

I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change

    The proposed rule change would (1) adopt the Recovery & Wind-down
Plan of NSCC (``R&W Plan'' or ``Plan''); and (2) amend NSCC's Rules &
Procedures (``Rules'') \4\ in order to adopt Rule 41 (Corporation
Default), Rule 42 (Wind-down of the Corporation), and Rule 60 (Market
Disruption and Force Majeure) (each a ``Proposed Rule'' and,
collectively, the ``Proposed Rules''). The proposed rule change would
also re-number the current Rule 42 (Wind-down of a Member, Fund Member
or Insurance Carrier/Retirement Services Member) to Rule 40, which is
currently reserved for future use.
---------------------------------------------------------------------------

    \4\ Capitalized terms used herein and not otherwise defined
herein are defined in the Rules, available at www.dtcc.com/~/media/
Files/Downloads/legal/rules/nscc_rules.pdf.
---------------------------------------------------------------------------

    The R&W Plan would be maintained by NSCC in compliance with Rule
17Ad-22(e)(3)(ii) under the Act, by providing plans for the recovery
and orderly wind-down of NSCC necessitated by credit losses, liquidity
shortfalls, losses from general business risk, or any other losses, as
described below.\5\ The Proposed Rules are designed to (1) facilitate
the implementation of the R&W Plan when necessary and, in particular,
allow NSCC to effectuate its strategy for winding down and transferring
its business; (2) provide Members and Limited Members with transparency
around critical provisions of the R&W Plan that relate to their rights,
responsibilities and obligations; and (3) provide NSCC with the legal
basis to implement those provisions of the R&W Plan when necessary, as
described below.
---------------------------------------------------------------------------

    \5\ 17 CFR 240.17Ad-22(e)(3)(ii).
---------------------------------------------------------------------------

II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

    In its filing with the Commission, the clearing agency 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. The clearing agency 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

1. Purpose
    NSCC is proposing to adopt the R&W Plan to be used by the Board and
management of NSCC in the event NSCC encounters scenarios that could
potentially prevent it from being able to provide its critical services
as a going concern. The R&W Plan would identify (i) the recovery tools
available to NSCC to address the risks of (a) uncovered losses or
liquidity shortfalls resulting from the default of one or more Members,
and (b) losses arising from non-default events, such as damage to its
physical assets, a cyber-attack, or custody and investment losses, and
(ii) the strategy for implementation of such tools. The R&W Plan would
also establish the strategy and framework for the orderly wind-down of
NSCC and the transfer of its business in the remote event the
implementation of the available recovery tools does not successfully
return NSCC to financial viability.
    As discussed in greater detail below, the R&W Plan would provide,
among other matters, (i) an overview of the business of NSCC and its
parent, The Depository Trust & Clearing Corporation (``DTCC''); (ii) an
analysis of NSCC's intercompany arrangements and critical links to
other financial market infrastructures (``FMIs''); (iii) a description
of NSCC's services, and the criteria used to determine which services
are considered critical; (iv) a description of the NSCC and DTCC
governance structure; (v) a description of the governance around the
overall recovery and wind-down program; (vi) a discussion of tools
available to NSCC to mitigate credit/market and liquidity risks,
including recovery indicators and triggers, and the governance around
management of a stress event along a ``Crisis Continuum'' timeline;
(vii) a discussion of potential non-default losses and the resources
available to NSCC to address such losses, including recovery triggers
and tools to mitigate such losses; (viii) an analysis of the recovery
tools' characteristics, including how they are comprehensive,
effective, and transparent, how the tools provide appropriate
incentives to Members to, among other things, control and monitor the
risks they may present to NSCC, and how NSCC seeks to minimize the
negative consequences of executing its recovery tools; and (ix) the
framework and approach for the orderly wind-down and transfer of NSCC's
business, including an estimate of the time and costs to effect a
recovery or orderly wind-down of NSCC.
    The R&W Plan would be structured as a roadmap, and would identify
and describe the tools that NSCC may use to effect a recovery from the
events and scenarios described therein. Certain recovery tools that
would be identified in the R&W Plan are based in the Rules (including
the Proposed Rules) and, as such, descriptions of those tools would
include descriptions of, and reference to, the applicable Rules and any
related internal policies and procedures. Other recovery tools that
would be identified in the R&W Plan are based in contractual
arrangements to which NSCC is a party, including, for example, existing
committed or pre-arranged liquidity arrangements. Further, the R&W Plan
would state that NSCC may develop further supporting internal
guidelines and materials that may provide operationally for matters
described in the Plan, and that such documents would be supplemental
and subordinate to the Plan.
    Key factors considered in developing the R&W Plan and the types of
tools available to NSCC were its governance structure and the nature of
the markets within which NSCC operates. As a result of these
considerations, many of the tools available to NSCC that would be
described in the R&W Plan are NSCC's existing, business-as-usual risk
management and default management tools, which would continue to be
applied in scenarios of increasing stress. In addition to these
existing, business-as-usual tools, the R&W Plan would describe NSCC's
other principal recovery tools, which include, for example, (i)
identifying, monitoring and managing general business risk and holding
sufficient liquid net assets funded by equity (``LNA'') to cover
potential general business losses pursuant to the Clearing Agency
Policy on Capital Requirements (``Capital Policy''),\6\ (ii)
maintaining the Clearing Agency Capital Replenishment Plan
(``Replenishment Plan'') as a viable plan for the replenishment of
capital should NSCC's equity fall close to or below the amount being
held pursuant to the Capital Policy,\7\ and (iii) the process for the
allocation of losses among Members, as provided in Rule 4.\8\ The R&W
Plan would provide governance around the selection and implementation
of the recovery tool or tools most relevant to mitigate a stress
scenario and any applicable loss or liquidity shortfall.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 81105 (July 7,
2017), 82 FR 32399 (July 13, 2017) (SR-DTC-2017-003, SR-FICC-2017-
007, SR-NSCC-2017-004).
    \7\ See id.
    \8\ See Rule 4 (Clearing Fund), supra note 4. NSCC is proposing
changes to Rule 4 and other related rules regarding allocation of
losses in a separate filing submitted simultaneously with this
filing (File Nos. SR-NSCC-2017-018 and SR-NSCC-2017-806, referred to
collectively herein as the ``Loss Allocation Filing''). NSCC expects
the Commission to review both proposals together, and, as such, the
proposal described in this filing anticipates the approval and
implementation of those proposed changes to the Rules.
---------------------------------------------------------------------------

    The development of the R&W Plan is facilitated by the Office of
Recovery & Resolution Planning (``R&R Team'') of DTCC.\9\ The R&R Team
reports to the DTCC Management Committee (``Management Committee'') and
is responsible for maintaining the R&W Plan and for the development and
ongoing maintenance of the overall recovery and wind-down planning
process. The Board, or such committees as may be delegated authority by
the Board from time to time pursuant to its charter, would review and
approve the R&W Plan biennially, and would also review and approve any
changes that are proposed to the R&W Plan outside of the biennial
review.
---------------------------------------------------------------------------

    \9\ DTCC operates on a shared services model with respect to
NSCC and its other subsidiaries. Most corporate functions are
established and managed on an enterprise-wide basis pursuant to
intercompany agreements under which it is generally DTCC that
provides a relevant service to a subsidiary, including NSCC.
---------------------------------------------------------------------------

    As discussed in greater detail below, the Proposed Rules would
define the procedures that may be employed in the event of NSCC's
default and its wind-down, and would provide for NSCC's authority to
take certain actions on the occurrence of a ``Market Disruption
Event,'' as defined therein. Significantly, the Proposed Rules would
provide Members and Limited Members with transparency and certainty
with respect to these matters. The Proposed Rules would facilitate the
implementation of the R&W Plan, particularly NSCC's strategy for
winding down and transferring its business, and would provide NSCC with
the legal basis to implement those aspects of the R&W Plan.
NSCC R&W Plan
    The R&W Plan is intended to be used by the Board and NSCC's
management in the event NSCC encounters scenarios that could
potentially prevent it from

being able to provide its critical services as a going concern. The R&W
Plan would be structured to provide a roadmap, define the strategy, and
identify the tools available to NSCC to either (i) recover in the event
it experiences losses that exceed its prefunded resources (such
strategies and tools referred to herein as the ``Recovery Plan'') or
(ii) wind-down its business in a manner designed to permit the
continuation of its critical services in the event that such recovery
efforts are not successful (such strategies and tools referred to
herein as the ``Wind-down Plan''). The description of the R&W Plan
below is intended to highlight the purpose and expected effects of the
material aspects of the R&W Plan, and to provide Members and Limited
Members with appropriate transparency into these features.
Business Overview, Critical Services, and Governance
    The introduction to the R&W Plan would identify the document's
purpose and its regulatory background, and would outline a summary of
the Plan. The stated purpose of the R&W Plan is that it is to be used
by the Board and NSCC management in the event NSCC encounters scenarios
that could potentially prevent it from being able to provide its
critical services as a going concern. The R&W Plan would be maintained
by NSCC in compliance with Rule 17Ad-22(e)(3)(ii) under the Act \10\ by
providing plans for the recovery and orderly wind-down of NSCC.
---------------------------------------------------------------------------

    \10\ 17 CFR 240.17Ad-22(e)(3)(ii).
---------------------------------------------------------------------------

    The R&W Plan would describe DTCC's business profile, provide a
summary of NSCC's services, and identify the intercompany arrangements
and links between NSCC and other entities, including other FMIs. This
overview section would provide a context for the R&W Plan by describing
NSCC's business, organizational structure and critical links to other
entities. By providing this context, this section would facilitate the
analysis of the potential impact of utilizing the recovery tools set
forth in later sections of the Recovery Plan, and the analysis of the
factors that would be addressed in implementing the Wind-down Plan.
    DTCC is a user-owned and user-governed holding company and is the
parent company of NSCC and its affiliates, The Depository Trust Company
(``DTC'') and Fixed Income Clearing Corporation (``FICC'', and,
together with NSCC and DTC, the ``Clearing Agencies''). The Plan would
describe how corporate support services are provided to NSCC from DTCC
and DTCC's other subsidiaries through intercompany agreements under a
shared services model.
    The Plan would provide a description of established links between
NSCC and other FMIs, including The Options Clearing Corporation
(``OCC''), CDS Clearing and Depository Services Inc. (``CDS''), and
DTC. For example, the arrangement between NSCC and OCC governs the
process by which OCC submits transactions to NSCC for settlement, and
sets the time when the settlement obligations and the central
counterparty trade guaranty shifts from OCC to NSCC with respect to
these transactions.\11\ The arrangement with CDS enables participants
of CDS to clear and settle OTC trades with U.S. broker-dealers through
subaccounts maintained by CDS through its own membership with NSCC.\12\
The interface between DTC and NSCC permits transactions to flow between
DTC's system and NSCC's Continuous Net Settlement (``CNS'') system in a
collateralized environment.\13\ NSCC's CNS relies on this interface
with DTC for the book-entry movement of securities to settle
transactions. This section of the Plan, identifying and briefly
describing NSCC's established links, would provide a mapping of
critical connections and dependencies that may need to be relied on or
otherwise addressed in connection with the implementation of either the
Recovery Plan or the Wind-down Plan.
---------------------------------------------------------------------------

    \11\ See Securities Exchange Act Release Nos. 81266 (July 31,
2017), 82 FR 36484 (August 4, 2017) (SR-NSCC-2017-007, SR-OCC-2017-
013); 81260 (July 31, 2017), 82 FR 36476 (August 4, 2017) (SR-NSCC-
2017-803, SR-OCC-2017-804); Procedure III (Trade Recording Service
(Interface with Qualified Clearing Agencies)), supra note 4.
    \12\ See Rule 61 (International Links), supra note 4.
    \13\ See Rule 11 (CNS System) and Procedure VII (CNS Accounting
Operation), supra note 4.
---------------------------------------------------------------------------

    The Plan would define the criteria for classifying certain of
NSCC's services as ``critical,'' and would identify those critical
services and the rationale for their classification. This section would
provide an analysis of the potential systemic impact from a service
disruption, and is important for evaluating how the recovery tools and
the wind-down strategy would facilitate and provide for the
continuation of NSCC's critical services to the markets it serves. The
criteria that would be used to identify an NSCC service or function as
critical would include consideration as to (1) whether there is a lack
of alternative providers or products; (2) whether failure of the
service could impact NSCC's ability to perform its central counterparty
services; (3) whether failure of the service could impact NSCC's
ability to perform its netting services, and, as such, the availability
of market liquidity; and (4) whether the service is interconnected with
other participants and processes within the U.S. financial system, for
example, with other FMIs, settlement banks, broker-dealers, and
exchanges. The Plan would then list each of those services, functions
or activities that NSCC has identified as ``critical'' based on the
applicability of these four criteria. Such critical services would
include, for example, trade capture and recording through the Universal
Trade Capture system,\14\ services supporting Correspondent Clearing
relationships,\15\ the CNS system,\16\ the Balance Order Netting
system,\17\ Mutual Funds Services,\18\ and the settlement of money
payments with respect to transactions processed by NSCC.\19\ The R&W
Plan would also include a non-exhaustive list of NSCC services that are
not deemed critical.
---------------------------------------------------------------------------

    \14\ See Rule 7 (Comparison and Trade Recording Operation) and
Procedure II (Trade Comparison and Recording Service), supra note 4.
    \15\ See Procedure IV (Special Representative Service), supra
note 4.
    \16\ See Rule 11 (CNS System) and Procedure VII (CNS Accounting
Operation), supra note 4.
    \17\ See Rule 8 (Balance Order and Foreign Security Systems) and
Procedure V (Balance Order Accounting Operation), supra note 4.
    \18\ See Rule 52 (Mutual Funds Services), supra note 4.
    \19\ See Rule 12 (Settlement) and Procedure VIII (Money
Settlement Service), supra note 4.
---------------------------------------------------------------------------

    The evaluation of which services provided by NSCC are deemed
critical is important for purposes of determining how the R&W Plan
would facilitate the continuity of those services. As discussed further
below, while NSCC's Wind-down Plan would provide for the transfer of
all critical services to a transferee in the event NSCC's wind-down is
implemented, it would anticipate that any non-critical services that
are ancillary and beneficial to a critical service, or that otherwise
have substantial user demand from the continuing membership, would also
be transferred.
    The Plan would describe the governance structure of both DTCC and
NSCC. This section of the Plan would identify the ownership and
governance model of these entities at both the Board of Directors and
management levels. The Plan would state that the stages of escalation
required to manage recovery under the Recovery Plan or to invoke NSCC's
wind-down under the Wind-down Plan would range from relevant business
line managers up to the Board through NSCC's governance structure. The
Plan would then identify the parties

responsible for certain activities under both the Recovery Plan and the
Wind-down Plan, and would describe their respective roles. The Plan
would identify the Risk Committee of the Board (``Board Risk
Committee'') as being responsible for oversight of risk management
activities at NSCC, which include focusing on both oversight of risk
management systems and processes designed to identify and manage
various risks faced by NSCC, and, due to NSCC's critical role in the
markets in which it operates, oversight of NSCC's efforts to mitigate
systemic risks that could impact those markets and the broader
financial system.\20\ The Plan would identify the DTCC Management Risk
Committee (``Management Risk Committee'') as primarily responsible for
general, day-to-day risk management through delegated authority from
the Board Risk Committee. The Plan would state that the Management Risk
Committee has delegated specific day-to-day risk management, including
management of risks addressed through margining systems and related
activities, to the DTCC Group Chief Risk Office (``GCRO''), which works
with staff within the DTCC Financial Risk Management group. Finally,
the Plan would describe the role of the Management Committee, which
provides overall direction for all aspects of NSCC's business,
technology, and operations and the functional areas that support these
activities.
---------------------------------------------------------------------------

    \20\ The charter of the Board Risk Committee is available at
http://www.dtcc.com/~/media/Files/Downloads/legal/policy-and-
compliance/DTCC-BOD-Risk-Committee-Charter.pdf.
---------------------------------------------------------------------------

    The Plan would describe the governance of recovery efforts in
response to both default losses and non-default losses under the
Recovery Plan, identifying the groups responsible for those recovery
efforts. Specifically, the Plan would state that the Management Risk
Committee provides oversight of actions relating to the default of a
Member, which would be reported and escalated to it through the GCRO,
and the Management Committee provides oversight of actions relating to
non-default events that could result in a loss, which would be reported
and escalated to it from the DTCC Chief Financial Officer (``CFO'') and
the DTCC Treasury group that reports to the CFO, and from other
relevant subject matter experts based on the nature and circumstances
of the non-default event.\21\ More generally, the Plan would state that
the type of loss and the nature and circumstances of the events that
lead to the loss would dictate the components of governance to address
that loss, including the escalation path to authorize those actions. As
described further below, both the Recovery Plan and the Wind-down Plan
would describe the governance of escalations, decisions, and actions
under each of those plans.
---------------------------------------------------------------------------

    \21\ The Plan would state that these groups would be involved to
address how to mitigate the financial impact of non-default losses,
and in recommending mitigating actions, the Management Committee
would consider information and recommendations from relevant subject
matter experts based on the nature and circumstances of the non-
default event. Any necessary operational response to these events,
however, would be managed in accordance with applicable incident
response/business continuity process; for example, processes
established by the DTCC Technology Risk Management group would be
followed in response to a cyber event.
---------------------------------------------------------------------------

    Finally, the Plan would describe the role of the R&R Team in
managing the overall recovery and wind-down program and plans for each
of the Clearing Agencies.
NSCC Recovery Plan
    The Recovery Plan is intended to be a roadmap of those actions that
NSCC may employ to monitor and, as needed, stabilize its financial
condition. As each event that could lead to a financial loss could be
unique in its circumstances, the Recovery Plan would not be
prescriptive and would permit NSCC to maintain flexibility in its use
of identified tools and in the sequence in which such tools are used,
subject to any conditions in the Rules or the contractual arrangement
on which such tool is based. NSCC's Recovery Plan would consist of (1)
a description of the risk management surveillance, tools, and
governance that NSCC would employ across evolving stress scenarios that
it may face as it transitions through a ``Crisis Continuum,'' described
below; (2) a description of NSCC's risk of losses that may result from
non-default events, and the financial resources and recovery tools
available to NSCC to manage those risks and any resulting losses; and
(3) an evaluation of the characteristics of the recovery tools that may
be used in response to either default losses or non-default losses, as
described in greater detail below. In all cases, NSCC would act in
accordance with the Rules, within the governance structure described in
the R&W Plan, and in accordance with applicable regulatory oversight to
address each situation in order to best protect NSCC, Members, and the
markets in which it operates.
    Managing Member Default Losses and Liquidity Needs Through the
Crisis Continuum. The Recovery Plan would describe the risk management
surveillance, tools, and governance that NSCC may employ across an
increasing stress environment, which is referred to as the ``Crisis
Continuum.'' This description would identify those tools that can be
employed to mitigate losses, and mitigate or minimize liquidity needs,
as the market environment becomes increasingly stressed. The phases of
the Crisis Continuum would include (1) a stable market phase, (2) a
stressed market phase, (3) a phase commencing with NSCC's decision to
cease to act for a Member or Affiliated Family of Members,\22\ and (4)
a recovery phase. This section of the Recovery Plan would address
conditions and circumstances relating to NSCC's decision to cease to
act for a Member (referred to in the R&W Plan as a ``defaulting
Member,'' and the event as a ``Member default'') pursuant to the
Rules.\23\
---------------------------------------------------------------------------

    \22\ The Plan would define an ``Affiliated Family'' of Members
as a number of affiliated entities that are all Members of NSCC.
    \23\ See Rule 46 (Restrictions on Access to Services), supra
note 4.
---------------------------------------------------------------------------

    The Recovery Plan would provide context to its roadmap through this
Crisis Continuum by describing NSCC's ongoing management of credit,
market and liquidity risk, and its existing process for measuring and
reporting its risks as they align with established thresholds for its
tolerance of those risks. The Recovery Plan would discuss the
management of credit/market risk and liquidity exposures together,
because the tools that address these risks can be deployed either
separately or in a coordinated approach in order to address both
exposures. NSCC manages these risk exposures collectively to limit
their overall impact on NSCC and its membership. As part of its market
risk management strategy, NSCC manages its credit exposure to Members
by determining the appropriate Required Deposits to the Clearing Fund
and monitoring its sufficiency, as provided for in the Rules.\24\ NSCC
manages its liquidity risks with an objective of maintaining sufficient
resources to be able to fulfill obligations that have been guaranteed
by NSCC in the event of a Member default that presents the largest
aggregate liquidity exposure to NSCC over the settlement cycle.\25\
---------------------------------------------------------------------------

    \24\ See Rule 4 (Clearing Fund) and Procedure XV (Clearing Fund
Formula and Other Matters), supra note 4. NSCC's market risk
management strategy is designed to comply with Rule 17Ad-22(e)(4)
under the Act, where these risks are referred to as ``credit
risks.'' See also 17 CFR 240.17Ad-22(e)(4).
    \25\ NSCC's liquidity risk management strategy, including the
manner in which NSCC utilizes its liquidity tools, is described in
the Clearing Agency Liquidity Risk Management Framework. See
Securities Exchange Act Release Nos. 80489 (April 19, 2017), 82 FR
19120 (April 25, 2017) (SR-DTC-2017-004, SR-NSCC-2017-005, SR-FICC-
2017-008); 81194 (July 24, 2017), 82 FR 35241 (July 28, 2017) (SR-
DTC-2017-004, SR-NSCC-2017-005, SR-FICC-2017-008).

---------------------------------------------------------------------------

    The Recovery Plan would outline the metrics and indicators that
NSCC has developed to evaluate a stress situation against established
risk tolerance thresholds. Each risk mitigation tool identified in the
Recovery Plan would include a description of the escalation thresholds
that allow for effective and timely reporting to the appropriate
internal management staff and committees, or to the Board. The Recovery
Plan would make clear that these tools and escalation protocols would
be calibrated across each phase of the Crisis Continuum. The Recovery
Plan would also establish that NSCC would retain the flexibility to
deploy such tools either separately or in a coordinated approach, and
to use other alternatives to these actions and tools as necessitated by
the circumstances of a particular Member default, in accordance with
the Rules. Therefore, the Recovery Plan would both provide NSCC with a
roadmap to follow within each phase of the Crisis Continuum, and would
permit it to adjust its risk management measures to address the unique
circumstances of each event.
    The Recovery Plan would describe the conditions that mark each
phase of the Crisis Continuum, and would identify actions that NSCC
could take as it transitions through each phase in order to both
prevent losses from materializing through active risk management, and
to restore the financial health of NSCC during a period of stress.
    The ``stable market phase'' of the Crisis Continuum would describe
active risk management activities in the normal course of business.
These activities would include (1) routine monitoring of margin
adequacy through daily review of back testing and stress testing
results that review the adequacy of NSCC's margin calculations, and
escalation of those results to internal and Board committees; \26\ and
(2) routine monitoring of liquidity adequacy through review of daily
liquidity studies that measure sufficiency of available liquidity
resources to meet cash settlement obligations of the Member that would
generate the largest aggregate payment obligation.\27\
---------------------------------------------------------------------------

    \26\ NSCC's stress testing practices are described in the
Clearing Agency Stress Testing Framework (Market Risk). See
Securities Exchange Act Release Nos. 80485 (April 19, 2017), 82 FR
19131 (April 25, 2017) (SR-DTC-2017-005, SR-FICC-2017-009, SR-NSCC-
2017-006); 81192 (July 24, 2017), 82 FR 35245 (July 28, 2017) (SR-
DTC-2017-005, SR-FICC-2017-009, SR-NSCC-2017-006).
    \27\ See supra note 25.
---------------------------------------------------------------------------

    The Recovery Plan would describe some of the indicators of the
``stressed market phase'' of the Crisis Continuum, which would include,
for example, volatility in market prices of certain assets where there
is increased uncertainty among market participants about the
fundamental value of those assets. This phase would involve general
market stresses, when no Member default would be imminent. Within the
description of this phase, the Recovery Plan would provide that NSCC
may take targeted, routine risk management measures as necessary and as
permitted by the Rules.
    Within the ``Member default phase'' of the Crisis Continuum, the
Recovery Plan would provide a roadmap for the existing procedures that
NSCC would follow in the event of a Member default and any decision by
NSCC to cease to act for that Member.\28\ The Recovery Plan would
provide that the objectives of NSCC's actions upon a Member or
Affiliated Family default are to (1) minimize losses and market
exposure of the affected Members and NSCC's non-defaulting Members; and
(2), to the extent practicable, minimize disturbances to the affected
markets. The Recovery Plan would describe tools, actions, and related
governance for both market risk monitoring and liquidity risk
monitoring through this phase. For example, in connection with managing
its market risk during this phase, NSCC would, pursuant to the Rules,
(1) monitor and assess the adequacy of Clearing Fund resources; (2),
when necessary and appropriate pursuant to the Rules, assess and
collect additional margin requirements; and (3) follow its operational
procedures to liquidate the defaulting Member's portfolio. Management
of liquidity risk through this phase would involve ongoing monitoring
of the adequacy of NSCC's liquidity resources, and the Recovery Plan
would identify certain actions NSCC may deploy as it deems necessary to
mitigate a potential liquidity shortfall, which would include, for
example, adjusting its strategy for closing out the defaulting Member's
portfolio or seeking additional liquidity resources. The Recovery Plan
would state that, throughout this phase, relevant information would be
escalated and reported to both internal management committees and the
Board Risk Committee.
---------------------------------------------------------------------------

    \28\ See Rule 18 (Procedures for When the Corporation Declines
or Ceases to Act) and Rule 46 (Restrictions on Access to Services),
supra note 4.
---------------------------------------------------------------------------

    The Recovery Plan would also identify financial resources available
to NSCC, pursuant to the Rules, to address losses arising out of a
Member default. Specifically, Rule 4, as proposed to be amended by the
Loss Allocation Filing, would provide that losses be satisfied first by
applying a ``Corporate Contribution,'' and then, if necessary, by
allocating remaining losses to non-defaulting Members.\29\
---------------------------------------------------------------------------

    \29\ See supra note 8. The Loss Allocation Filing proposes to
amend Rule 4 to define the amount NSCC would contribute to address a
loss resulting from either a Member default or a non-default event
as the ``Corporate Contribution.'' This amount would be 50 percent
(50%) of the ``General Business Risk Capital Requirement,'' which is
calculated pursuant to the Capital Policy and is an amount
sufficient to cover potential general business losses so that NSCC
can continue operations and services as a going concern if those
losses materialize, in compliance with Rule 17Ad-22(e)(15) under the
Act. See also supra note 6; 17 CFR 240.17Ad-22(e)(15).
---------------------------------------------------------------------------

    The ``recovery phase'' of the Crisis Continuum would describe
actions that NSCC may take to avoid entering into a wind-down of its
business. In order to provide for an effective and timely recovery, the
Recovery Plan would describe two stages of this phase: (1) A recovery
corridor, during which NSCC may experience stress events or observe
early warning indicators that allow it to evaluate its options and
prepare for the recovery phase; and (2) the recovery phase, which would
begin on the date that NSCC issues the first Loss Allocation Notice of
the second loss allocation round with respect to a given ``Event
Period.'' \30\
---------------------------------------------------------------------------

    \30\ The Loss Allocation Filing proposes to amend Rule 4 to
introduce the concept of an ``Event Period'' as the ten (10)
Business Days beginning on (i) with respect to a Member default, the
day on which NSCC notifies Members that it has ceased to act for a
Member under the Rules, or (ii) with respect to a non-default loss,
the day that NSCC notifies Members of the determination by the Board
that there is a non-default loss event, as described in greater
detail in that filing. The proposed Rule 4 would define a ``round''
as a series of loss allocations relating to an Event Period, and
would provide that the first Loss Allocation Notice in a first,
second, or subsequent round shall expressly state that such notice
reflects the beginning of a first, second, or subsequent round. The
maximum allocable loss amount of a round is equal to the sum of the
``Loss Allocation Caps'' (as defined in the proposed Rule 4) of
those Members included in the round. See supra note 8.
---------------------------------------------------------------------------

    NSCC expects that significant deterioration of liquidity resources
would cause it to enter the recovery corridor stage of this phase, and,
as such, the actions it may take at this stage would be aimed at
replenishing those resources. Circumstances that could cause it to
enter the recovery corridor may include, for example, a rapid and
material change in market prices or substantial intraday activity
volume by the defaulting Member, neither of which are mitigated by
intraday margin calls, or subsequent defaults by other Members or
Affiliated Families during a compressed time

period. Throughout the recovery corridor, NSCC would monitor the
adequacy of its resources and the expected timing of replenishment of
those resources, and would do so through the monitoring of certain
metrics referred to as ``Corridor Indicators.''
    The majority of the Corridor Indicators, as identified in the
Recovery Plan, relate directly to conditions that may require NSCC to
adjust its strategy for hedging and liquidating a defaulting Member's
portfolio, and any such changes would include an assessment of the
status of the Corridor Indicators. Corridor Indicators would include,
for example, effectiveness and speed of NSCC's efforts to close out the
portfolio of the defaulting Member, and an impediment to the
availability of its financial resources. For each Corridor Indicator,
the Recovery Plan would identify (1) measures of the indicator, (2)
evaluations of the status of the indicator, (3) metrics for determining
the status of the deterioration or improvement of the indicator, and
(4) ``Corridor Actions,'' which are steps that may be taken to improve
the status of the indicator,\31\ as well as management escalations
required to authorize those steps. Because NSCC has never experienced
the default of multiple Members, it has not, historically, measured the
deterioration or improvements metrics of the Corridor Indicators. As
such, these metrics were chosen based on the business judgment of NSCC
management.
---------------------------------------------------------------------------

    \31\ The Corridor Actions that would be identified in the Plan
are indicative, but not prescriptive; therefore, if NSCC needs to
consider alternative actions due to the applicable facts and
circumstances, the escalation of those alternative actions would
follow the same escalation protocol identified in the Plan for the
Corridor Indicator to which the action relates.
---------------------------------------------------------------------------

    The Recovery Plan would also describe the reporting and escalation
of the status of the Corridor Indicators throughout the recovery
corridor. Significant deterioration of a Corridor Indicator, as
measured by the metrics set out in the Recovery Plan, would be
escalated to the Board. NSCC management would review the Corridor
Indicators and the related metrics at least annually, and would modify
these metrics as necessary in light of observations from simulations of
Member defaults and other analyses. Any proposed modifications would be
reviewed by the Management Risk Committee and the Board Risk Committee.
The Recovery Plan would estimate that NSCC may remain in the recovery
corridor stage between one day and two weeks. This estimate is based on
historical data observed in past Member defaults, the results of
simulations of Member defaults, and periodic liquidity analyses
conducted by NSCC. The actual length of a recovery corridor would vary
based on actual market conditions observed on the date and time NSCC
enters the recovery corridor stage of the Crisis Continuum, and NSCC
would expect the recovery corridor to be shorter in market conditions
of increased stress.
    The Recovery Plan would outline steps by which NSCC may allocate
its losses, and would state that the available tools related to
allocation of losses would only be used in this and subsequent phases
of the Crisis Continuum.\32\ The Recovery Plan would also identify
tools that may be used to address foreseeable shortfalls of NSCC's
liquidity resources following a Member default, and would provide that
these tools may be used throughout the Crisis Continuum to address
liquidity shortfalls if they arise. The goal in managing NSCC's
qualified liquidity resources is to maximize resource availability in
an evolving stress situation, to maintain flexibility in the order and
use of sources of liquidity, and to repay any third party lenders of
liquidity in a timely manner. These liquidity tools include, for
example, NSCC's committed 364-day credit facility,\33\ and the issuance
and private placement of additional short-term promissory notes
(``commercial paper'') and extendible notes, the cash proceeds of which
provide NSCC with prefunded liquidity.\34\ Additional voluntary or
uncommitted tools to address potential liquidity shortfalls, for
example uncommitted bank loans, which may supplement NSCC's other
liquid resources described herein, would also be identified in the
Recovery Plan. The Recovery Plan would state that, due to the extreme
nature of a stress event that would cause NSCC to consider the use of
these liquidity tools, the availability and capacity of these liquidity
tools, and the willingness of counterparties to lend, cannot be
accurately predicted and are dependent on the circumstances of the
applicable stress period, including market price volatility, actual or
perceived disruptions in financial markets, the costs to NSCC of
utilizing these tools, and any potential impact on NSCC's credit
rating.
---------------------------------------------------------------------------

    \32\ As these matters are described in greater detail in the
Loss Allocation Filing and in the proposed amendments to Rule 4,
described therein, reference is made to that filing and the details
are not repeated here. See supra note 8.
    \33\ See Securities Exchange Act Release No. 80605 (May 5,
2017), 82 FR 21850 (May 10, 2017) (SR-DTC-2017-802, SR-NSCC-2017-
802).
    \34\ See Securities Exchange Act Release No. 75730 (August 19,
2015), 80 FR 51638 (August 25, 2015) (SR-NSCC-2015-802).
---------------------------------------------------------------------------

    As stated above, the Recovery Plan would state that NSCC will have
entered the recovery phase on the date that it issues the first Loss
Allocation Notice of the second loss allocation round with respect to a
given Event Period. The Recovery Plan would provide that, during the
recovery phase, NSCC would continue and, as needed, enhance, the
monitoring and remedial actions already described in connection with
previous phases of the Crisis Continuum, and would remain in the
recovery phase until its financial resources are expected to be or are
fully replenished, or until the Wind-down Plan is triggered, as
described below.
    The Recovery Plan would describe governance for the actions and
tools that may be employed within the Crisis Continuum, which would be
dictated by the facts and circumstances applicable to the situation
being addressed. Such facts and circumstances would be measured by the
Corridor Indicators applicable to that phase of the Crisis Continuum,
and, in most cases, by the measures and metrics that are assigned to
those Corridor Indicators, as described above. Each of these indicators
would have a defined review period and escalation protocol that would
be described in the Recovery Plan. The Recovery Plan would also
describe the governance procedures around a decision to cease to act
for a Member, pursuant to the Rules, and around the management and
oversight of the subsequent liquidation of the defaulting Member's
portfolio. The Recovery Plan would state that, overall, NSCC would
retain flexibility in accordance with the Rules, its governance
structure, and its regulatory oversight, to address a particular
situation in order to best protect NSCC and the Members, and to meet
the primary objectives, throughout the Crisis Continuum, of minimizing
losses and, where consistent and practicable, minimizing disturbance to
affected markets.
    Non-Default Losses. The Recovery Plan would outline how NSCC may
address losses that result from events other than a Member default.
While these matters are addressed in greater detail in other documents,
this section of the Plan would provide a roadmap to those documents and
an outline for NSCC's approach to monitoring and managing losses that
could result from a non-default event. The Plan would first identify
some of the risks NSCC faces that could lead to these losses, which
include, for example, the business and profit/loss risks of

unexpected declines in revenue or growth of expenses; the operational
risks of disruptions to systems or processes that could lead to large
losses, including those resulting from, for example, a cyber-attack;
and custody or investment risks that could lead to financial losses.
The Recovery Plan would describe NSCC's overall strategy for the
management of these risks, which includes a ``three lines of defense''
approach to risk management that allows for comprehensive management of
risk across the organization.\35\ The Recovery Plan would also describe
NSCC's approach to financial risk and capital management. The Plan
would identify key aspects of this approach, including, for example, an
annual budget process, business line performance reviews with
management, and regular review of capital requirements against LNA.
These risk management strategies are collectively intended to allow
NSCC to effectively identify, monitor, and manage risks of non-default
losses.
---------------------------------------------------------------------------

    \35\ The Clearing Agency Risk Management Framework includes a
description of this ``three lines of defense'' approach to risk
management, and addresses how NSCC comprehensively manages various
risks, including operational, general business, investment, custody,
and other risks that arise in or are borne by it. See Securities
Exchange Act Release No. 81635 (September 15, 2017), 82 FR 44224
(September 21, 2017) (SR-DTC-2017-013, SR-FICC-2017-016, SR-NSCC-
2017-012). The Clearing Agency Operational Risk Management Framework
describes the manner in which NSCC manages operational risks, as
defined therein. See Securities Exchange Act Release No. 81745
(September 28, 2017), 82 FR 46332 (October 4, 2017) (SR-DTC-2017-
014, SR-FICC-2017-017, SR-NSCC-2017-013).
---------------------------------------------------------------------------

    The Plan would identify the two categories of financial resources
NSCC maintains to cover losses and expenses arising from non-default
risks or events as (1) LNA, maintained, monitored, and managed pursuant
to the Capital Policy, which include (a) amounts held in satisfaction
of the General Business Risk Capital Requirement,\36\ (b) the Corporate
Contribution,\37\ and (c) other amounts held in excess of NSCC's
capital requirements pursuant to the Capital Policy; and (2) resources
available pursuant to the loss allocation provisions of Rule 4.\38\
---------------------------------------------------------------------------

    \36\ See supra note 29.
    \37\ See supra note 29.
    \38\ See supra note 8.
---------------------------------------------------------------------------

    The Plan would address the process by which the CFO and the DTCC
Treasury group would determine which available LNA resources are most
appropriate to cover a loss that is caused by a non-default event. This
determination involves an evaluation of a number of factors, including
the current and expected size of the loss, the expected time horizon
over when the loss or additional expenses would materialize, the
current and projected available LNA, and the likelihood LNA could be
successfully replenished pursuant to the Replenishment Plan, if
triggered.\39\ Finally the Plan would discuss how NSCC would apply its
resources to address losses resulting from a non-default event,
including the order of resources it would apply if the loss or
liability exceeds NSCC's excess LNA amounts, or is large relative
thereto, and the Board has declared the event a ``Declared Non-Default
Loss Event'' pursuant to Rule 4.\40\
---------------------------------------------------------------------------

    \39\ See supra note 6.
    \40\ See supra note 8.
---------------------------------------------------------------------------

    The Plan would also describe proposed Rule 60 (Market Disruption
and Force Majeure), which NSCC is proposing to adopt in the Rules. This
Proposed Rule would provide transparency around how NSCC would address
extraordinary events that may occur outside its control. Specifically,
the Proposed Rule would define a ``Market Disruption Event'' and the
governance around a determination that such an event has occurred. The
Proposed Rule would also describe NSCC's authority to take actions
during the pendency of a Market Disruption Event that it deems
appropriate to address such an event and facilitate the continuation of
its services, if practicable, as described in greater detail below.
    The Plan would describe the interaction between the Proposed Rule
and NSCC's existing processes and procedures addressing business
continuity management and disaster recovery (generally, the ``BCM/DR
procedures''), making clear that the Proposed Rule is designed to
support those BCM/DR procedures and to address circumstances that may
be exogenous to NSCC and not necessarily addressed by the BCM/DR
procedures. Finally, the Plan would describe that, because the
operation of the Proposed Rule is specific to each applicable Market
Disruption Event, the Proposed Rule does not define a time limit on its
application. However, the Plan would note that actions authorized by
the Proposed Rule would be limited to the pendency of the applicable
Market Disruption Event, as made clear in the Proposed Rule. Overall,
the Proposed Rule is designed to mitigate risks caused by Market
Disruption Events and, thereby, minimize the risk of financial loss
that may result from such events.
    Recovery Tool Characteristics. The Recovery Plan would describe
NSCC's evaluation of the tools identified within the Recovery Plan, and
its rationale for concluding that such tools are comprehensive,
effective, and transparent, and that such tools provide appropriate
incentives to Members and minimize negative impact on Members and the
financial system, in compliance with guidance published by the
Commission in connection with the adoption of Rule 17Ad-22(e)(3)(ii)
under the Act.\41\ NSCC's analysis and the conclusions set forth in
this section of the Recovery Plan are described in greater detail in
Item 3(b) of this filing, below.
---------------------------------------------------------------------------

    \41\ Standards for Covered Clearing Agencies, Securities
Exchange Act Release No. 78961 (September 28, 2016), 81 FR 70786
(October 13, 2016) (S7-03-14).
---------------------------------------------------------------------------

NSCC Wind-Down Plan
    The Wind-down Plan would provide the framework and strategy for the
orderly wind-down of NSCC if the use of the recovery tools described in
the Recovery Plan do not successfully return NSCC to financial
viability. While NSCC believes that, given the comprehensive nature of
the recovery tools, such event is extremely unlikely, as described in
greater detail below, NSCC is proposing a wind-down strategy that
provides for (1) the transfer of NSCC's business, assets and membership
to another legal entity, (2) such transfer being effected in connection
with proceedings under Chapter 11 of the U.S. Federal Bankruptcy
Code,\42\ and (3) after effectuating this transfer, NSCC liquidating
any remaining assets in an orderly manner in bankruptcy proceedings.
NSCC believes that the proposed transfer approach to a wind-down would
meet its objectives of (1) assuring that NSCC's critical services will
be available to the market as long as there are Members in good
standing, and (2) minimizing disruption to the operations of Members
and financial markets generally that might be caused by NSCC's failure.
---------------------------------------------------------------------------

    \42\ 11 U.S.C. 1101 et seq.
---------------------------------------------------------------------------

    In describing the transfer approach to NSCC's Wind-down Plan, the
Plan would identify the factors that NSCC considered in developing this
approach, including the fact that NSCC does not own material assets
that are unrelated to its clearance and settlement activities. As such,
a business reorganization or ``bail-in'' of debt approach would be
unlikely to mitigate significant losses. Additionally, NSCC's approach
was developed in consideration of its critical and unique position in
the U.S. markets, which precludes any approach that would cause NSCC's
critical services to no longer be available.

    First, the Wind-down Plan would describe the potential scenarios
that could lead to the wind-down of NSCC, and the likelihood of such
scenarios. The Wind-down Plan would identify the time period leading up
to a decision to wind-down NSCC as the ``Runway Period.'' This period
would follow the implementation of any recovery tools, as it may take a
period of time, depending on the severity of the market stress at that
time, for these tools to be effective or for NSCC to realize a loss
sufficient to cause it to be unable to effectuate settlements and repay
its obligations.\43\ The Wind-down Plan would identify some of the
indicators that it has entered this Runway Period, which would include,
for example, successive Member defaults, significant Member retirements
thereafter, and NSCC's inability to replenish its financial resources
following the liquidation of the portfolio of the defaulting Member(s).
---------------------------------------------------------------------------

    \43\ The Wind-down Plan would state that, given NSCC's position
as a user-governed financial market utility, it is possible that
Members might voluntarily elect to provide additional support during
the recovery phase leading up to a potential trigger of the Wind-
down Plan, but would also make clear that NSCC cannot predict the
willingness of Members to do so.
---------------------------------------------------------------------------

    The trigger for implementing the Wind-down Plan would be a
determination by the Board that recovery efforts have not been, or are
unlikely to be, successful in returning NSCC to viability as a going
concern. As described in the Plan, NSCC believes this is an appropriate
trigger because it is both broad and flexible enough to cover a variety
of scenarios, and would align incentives of NSCC and the Members to
avoid actions that might undermine NSCC's recovery efforts.
Additionally, this approach takes into account the characteristics of
NSCC's recovery tools and enables the Board to consider (1) the
presence of indicators of a successful or unsuccessful recovery, and
(2) potential for knock-on effects of continued iterative application
of NSCC's recovery tools.
    The Wind-down Plan would describe the general objectives of the
transfer strategy, and would address assumptions regarding the transfer
of NSCC's critical services, business, assets and membership, and the
assignment of NSCC's links with other FMIs, to another legal entity
that is legally, financially, and operationally able to provide NSCC's
critical services to entities that wish to continue their membership
following the transfer (``Transferee''). The Wind-down Plan would
provide that the Transferee would be either (1) a third party legal
entity, which may be an existing or newly established legal entity or a
bridge entity formed to operate the business on an interim basis to
enable the business to be transferred subsequently (``Third Party
Transferee''); or (2) an existing, debt-free failover legal entity
established ex-ante by DTCC (``Failover Transferee'') to be used as an
alternative Transferee in the event that no viable or preferable Third
Party Transferee timely commits to acquire NSCC's business. NSCC would
seek to identify the proposed Transferee, and negotiate and enter into
transfer arrangements during the Runway Period and prior to making any
filings under Chapter 11 of the U.S. Federal Bankruptcy Code.\44\ As
stated above, the Wind-down Plan would anticipate that the transfer to
the Transferee be effected in connection with proceedings under Chapter
11 of the U.S. Federal Bankruptcy Code, and pursuant to a bankruptcy
court order under Section 363 of the Bankruptcy Code, such that the
transfer would be free and clear of claims against, and interests in,
NSCC, except to the extent expressly provided in the court's order.\45\
---------------------------------------------------------------------------

    \44\ See 11 U.S.C. 1101 et seq.
    \45\ See id. at 363.
---------------------------------------------------------------------------

    In order to effect a timely transfer of its services and minimize
the market and operational disruption of such transfer, NSCC would
expect to transfer all of its critical services and any non-critical
services that are ancillary and beneficial to a critical service, or
that otherwise have substantial user demand from the continuing
membership. Following the transfer, the Wind-down Plan would anticipate
that the Transferee and its continuing membership would determine
whether to continue to provide any transferred non-critical service on
an ongoing basis, or terminate the non-critical service following some
transition period. NSCC's Wind-down Plan would anticipate that the
Transferee would enter into a transition services agreement with DTCC
so that DTCC would continue to provide the shared services it currently
provides to NSCC, including staffing, infrastructure and operational
support. The Wind-down Plan would also anticipate the assignment of
NSCC's link arrangements, including those with DTC, CDS and OCC,
described above, to the Transferee.\46\ The Wind-down Plan would
provide that Members' open positions existing prior to the effective
time of the transfer would be addressed by the provisions of the
proposed Wind-down Rule and Corporation Default Rule, as defined and
described below, and that the Transferee would not acquire any pending
or open transactions with the transfer of the business. The Wind-down
Plan would anticipate that the Transferee would accept transactions for
processing with a trade date from and after the effective time of the
transfer.
---------------------------------------------------------------------------

    \46\ The proposed transfer arrangements outlined in the Wind-
down Plan do not contemplate the transfer of any credit or funding
agreements, which are generally not assignable by NSCC. However, to
the extent the Transferee adopts rules substantially identical to
those NSCC has in effect prior to the transfer, it would have the
benefit of any rules-based liquidity funding. The Wind-down Plan
contemplates that no Clearing Fund would be transferred to the
Transferee, as it is not held in a bankruptcy remote manner and it
is the primary prefunded liquidity resource to be accessed in the
recovery phase.
---------------------------------------------------------------------------

    The Wind-down Plan would provide that, following the effectiveness
of the transfer to the Transferee, the wind-down of NSCC would involve
addressing any residual claims against NSCC through the bankruptcy
process and liquidating the legal entity. As such, and as stated above,
the Wind-down Plan does not contemplate NSCC continuing to provide
services in any capacity following the transfer time, and any services
not transferred would be terminated. The Wind-down Plan would also
identify the key dependencies for the effectiveness of the transfer,
which include regulatory approvals that would permit the Transferee to
be legally qualified to provide the transferred services from and after
the transfer, and approval by the applicable bankruptcy court of, among
other things, the proposed sale, assignments, and transfers to the
Transferee.
    The Wind-down Plan would address governance matters related to the
execution of the transfer of NSCC's business and its wind-down. The
Wind-down Plan would address the duties of the Board to execute the
wind-down of NSCC in conformity with (1) the Rules, (2) the Board's
fiduciary duties, which mandate that it exercise reasonable business
judgment in performing these duties, and (3) NSCC's regulatory
obligations under the Act as a registered clearing agency. The Wind-
down Plan would also identify certain factors the Board may consider in
making these decisions, which would include, for example, whether NSCC
could safely stabilize the business and protect its value without
seeking bankruptcy protection, and NSCC's ability to continue to meet
its regulatory requirements.
    The Wind-down Plan would describe (1) actions NSCC or DTCC may take
to prepare for wind-down in the period

before NSCC experiences any financial distress, (2) actions NSCC would
take both during the recovery phase and the Runway Period to prepare
for the execution of the Wind-down Plan, and (3) actions NSCC would
take upon commencement of bankruptcy proceedings to effectuate the
Wind-down Plan.
    Finally, the Wind-down Plan would include an analysis of the
estimated time and costs to effectuate the plan, and would provide that
this estimate be reviewed and approved by the Board annually. In order
to estimate the length of time it might take to achieve a recovery or
orderly wind-down of NSCC's critical operations, as contemplated by the
R&W Plan, the Wind-down Plan would include an analysis of the possible
sequencing and length of time it might take to complete an orderly
wind-down and transfer of critical operations, as described in earlier
sections of the R&W Plan. The Wind-down Plan would also include in this
analysis consideration of other factors, including the time it might
take to complete any further attempts at recovery under the Recovery
Plan. The Wind-down Plan would then multiply this estimated length of
time by NSCC's average monthly operating expenses, including
adjustments to account for changes to NSCC's profit and expense profile
during these circumstances, over the previous twelve months to
determine the amount of LNA that it should hold to achieve a recovery
or orderly wind-down of NSCC's critical operations. The estimated wind-
down costs would constitute the ``Recovery/Wind-down Capital
Requirement'' under the Capital Policy.\47\ Under that policy, the
General Business Risk Capital Requirement is calculated as the greatest
of three estimated amounts, one of which is this Recovery/Wind-down
Capital Requirement.\48\
---------------------------------------------------------------------------

    \47\ See supra note 6.
    \48\ See supra note 6.
---------------------------------------------------------------------------

    The R&W Plan is designed as a roadmap, and the types of actions
that may be taken both leading up to and in connection with
implementation of the Wind-down Plan would be primarily addressed in
other supporting documentation referred to therein.
    The Wind-down Plan would address proposed Rule 41 (Corporation
Default) and proposed Rule 42 (Wind-down of the Corporation), which
would be adopted to facilitate the implementation of the Wind-down
Plan, and are discussed below.
Proposed Rules
    In connection with the adoption of the R&W Plan, NSCC is proposing
to adopt the Proposed Rules, each described below. The Proposed Rules
would facilitate the execution of the R&W Plan and would provide
Members and Limited Members with transparency as to critical aspects of
the Plan, particularly as they relate to the rights and
responsibilities of both NSCC and Members. The Proposed Rules also
provide a legal basis to these aspects of the Plan.
Rule 41 (Corporation Default)
    The proposed Rule 41 (``Corporation Default Rule'') would provide a
mechanism for the termination, valuation and netting of unsettled,
guaranteed CNS transactions in the event NSCC is unable to perform its
obligations or otherwise suffers a defined event of default, such as
entering insolvency proceedings. The proposed Corporation Default Rule
would provide Members with transparency and certainty regarding what
would happen if NSCC were to fail (defined in the proposed Rule as a
``Corporation Default'').
    The proposed rule would define the events that would constitute a
Corporation Default, which would generally include (1) the failure of
NSCC to make any undisputed payment or delivery to a Member if such
failure is not remedied within seven days after notice of such failure
is given to NSCC; (2) NSCC is dissolved; (3) NSCC institutes a
proceeding seeking a judgment of insolvency or bankruptcy, or a
proceeding is instituted against it seeking a judgment of bankruptcy or
insolvency and such judgment is entered; or (4) NSCC seeks or becomes
subject to the appointment of a receiver, trustee or similar official
pursuant to the federal securities laws or Title II of the Dodd-Frank
Wall Street Reform and Consumer Protection Act \49\ for it or for all
or substantially all of its assets.
---------------------------------------------------------------------------

    \49\ 12 U.S.C. 5381-5394.
---------------------------------------------------------------------------

    Upon a Corporation Default, the proposed Corporation Default Rule
would provide that all unsettled, guaranteed CNS transactions would be
terminated and, no later than forty-five days from the date on which
the event that constitutes a Corporation Default occurred (or ``Default
Date''), the Board would determine a single net amount owed by or to
each Member with respect to such transactions pursuant to the valuation
procedures set forth in the Proposed Rule. Essentially, for each
affected position in a CNS Security, the ``CNS Market Value'' would be
determined by using the Current Market Price for that security as
determined in the CNS System as of the close of business on the next
Business Day following the Default Date. NSCC would determine a ``Net
Contract Value'' for each Member's net unsettled long or short position
in a CNS Security by netting the Member's (i) contract price for such
net position that, as of the Default Date, has not yet passed the
Settlement Date, and (ii) the Current Market Price in the CNS System on
the Default Date for its fail positions. To determine each Member's
``CNS Close-out Value,'' (i) the Net Contract Value for each CUSIP
would be subtracted from the CNS Market Value for such CUSIP, and (ii)
the resulting difference for all CUSIPS in which the Member had a net
long or short position would be summed, and would be netted and offset
against any other amounts that may be due to or owing from the Member
under the Rules. The proposed Corporation Default Rule would provide
for notification to each Member of its CNS Close-out Value, and would
also address interpretation of the Rules in relation to certain terms
that are defined in the Federal Deposit Insurance Corporation
Improvement Act of 1991 (``FDICIA'').\50\
---------------------------------------------------------------------------

    \50\ 12 U.S.C. 1811 et seq.
---------------------------------------------------------------------------

    NSCC believes this valuation approach, which is comparable to the
approach adopted by other central counterparties, is appropriate for
NSCC given the market in which NSCC operates and the volumes of
transactions it processes in CNS, because it would provide for a
common, clear and transparent valuation methodology and price per CUSIP
applicable to all affected Members.
Rule 42 (Wind-Down of the Corporation)
    The proposed Rule 42 (``Wind-down Rule'') would be adopted to
facilitate the execution of the Wind-down Plan. The Wind-down Rule
would include a proposed set of defined terms that would be applicable
only to the provisions of this Proposed Rule. The Wind-down Rule would
make clear that a wind-down of NSCC's business would occur (1) after a
decision is made by the Board, and (2) in connection with the transfer
of NSCC's services to a Transferee, as described therein. Generally,
the proposed Wind-down Rule is designed to create clear mechanisms for
the transfer of Eligible Members, Eligible Limited Members, and
Settling Banks (as these terms would be defined in the Wind-down

Rule), and NSCC's business, in order to provide for continued access to
critical services and to minimize disruption to the markets in the
event the Wind-down Plan is initiated.
    Wind-down Trigger. First, the Proposed Rule would make clear that
the Board is responsible for initiating the Wind-down Plan, and would
identify the criteria the Board would consider when making this
determination. As provided for in the Wind-down Plan and in the
proposed Wind-down Rule, the Board would initiate the Plan if, in the
exercise of its business judgment and subject to its fiduciary duties,
it has determined that the execution of the Recovery Plan has not or is
not likely to restore NSCC to viability as a going concern, and the
implementation of the Wind-down Plan, including the transfer of NSCC's
business, is in the best interests of NSCC, Members and Limited
Members, its shareholders and creditors, and the U.S. financial
markets.
    Identification of Critical Services; Designation of Dates and Times
for Specific Actions. The Proposed Rule would provide that, upon making
a determination to initiate the Wind-down Plan, the Board would
identify the critical and non-critical services that would be
transferred to the Transferee at the Transfer Time, as well as any non-
critical services that would not be transferred to the Transferee. The
proposed Wind-down Rule would establish that any services transferred
to the Transferee will only be provided by the Transferee as of the
Transfer Time, and that any non-critical services that are not
transferred to the Transferee would be terminated at the Transfer Time
(as defined below and in the Proposed Rule). The Proposed Rule would
also provide that the Board would establish (1) an effective time for
the transfer of NSCC's business to a Transferee (``Transfer Time''),
(2) the last day that transactions may be submitted to NSCC for
processing (``Last Transaction Acceptance Date''), and (3) the last day
that transactions submitted to NSCC will be settled (``Last Settlement
Date'').
    Treatment of Pending Transactions. The Wind-down Rule would also
authorize the Board to provide for the settlement of pending
transactions prior to the Transfer Time, so long as the Corporation
Default Rule has not been triggered. For example, the Proposed Rule
would provide the Board with the ability to, if it deems practicable,
based on NSCC's resources at that time, allow pending transactions to
complete prior to the transfer of NSCC's business to a Transferee. The
Board would also have the ability to allow Members to only submit
trades that would effectively offset pending positions or provide that
transactions will be processed in accordance with special or exception
processing procedures. The Proposed Rule is designed to enable these
actions in order to facilitate settlement of pending transactions and
reduce claims against NSCC that would have to be satisfied after the
transfer has been effected. If none of these actions are deemed
practicable (or if the Corporation Default Rule has been triggered),
then the provisions of the proposed Corporation Default Rule would
apply to the treatment of open, pending transactions.
    The Proposed Rule would make clear, however, that NSCC would not
accept any transactions for processing after the Last Transaction
Acceptance Date or which are designated to settle after the Last
Settlement Date. Any transactions to be processed and/or settled after
the Transfer Time would be required to be submitted to the Transferee,
and would not be NSCC's responsibility.
    Notice Provisions. The proposed Wind-down Rule would provide that,
upon a decision to implement the Wind-down Plan, NSCC would provide
Members and Limited Members and its regulators with a notice that
includes material information relating to the Wind-down Plan and the
anticipated transfer of NSCC's membership and business, including, for
example, (1) a brief statement of the reasons for the decision to
implement the Wind-down Plan; (2) identification of the Transferee and
information regarding the transaction by which the transfer of NSCC's
business would be effected; (3) the Transfer Time, Last Transaction
Acceptance Date, and Last Settlement Date; and (4) identification of
Eligible Members and Eligible Limited Members, and the critical and
non-critical services that would be transferred to the Transferee at
the Transfer Time, as well as those Non-Eligible Members and Non-
Eligible Limited Members (as defined in the Proposed Rule), and any
non-critical services that would not be included in the transfer. NSCC
would also make available the rules and procedures and membership
agreements of the Transferee.
    Transfer of Membership. The proposed Wind-down Rule would address
the expected transfer of NSCC's membership to the Transferee, which
NSCC would seek to effectuate by entering into an arrangement with a
Failover Transferee, or by using commercially reasonable efforts to
enter into such an arrangement with a Third Party Transferee.
Therefore, the Wind-down Rule would provide Members, Limited Members
and Settling Banks with notice that, in connection with the
implementation of the Wind-down Plan and with no further action
required by any party, (1) their membership with NSCC would transfer to
the Transferee, (2) they would become party to a membership agreement
with such Transferee, and (3) they would have all of the rights and be
subject to all of the obligations applicable to their membership status
under the rules of the Transferee. These provisions would not apply to
any Member or Limited Member that is either in default of an obligation
to NSCC or has provided notice of its election to withdraw from
membership. Further, the proposed Wind-down Rule would make clear that
it would not prohibit (1) Members and Limited Members that are not
transferred by operation of the Wind-down Rule from applying for
membership with the Transferee, or (2) Members, Limited Members, and
Settling Banks that would be transferred to the Transferee from
withdrawing from membership with the Transferee.\51\
---------------------------------------------------------------------------

    \51\ The Members and Limited Members whose membership is
transferred to the Transferee pursuant to the proposed Wind-down
Rule would submit transactions to be processed and settled subject
to the rules and procedures of the Transferee, including any
applicable margin charges or other financial obligations.
---------------------------------------------------------------------------

    Comparability Period. The proposed automatic mechanism for the
transfer of NSCC's membership is intended to provide NSCC's membership
with continuous access to critical services in the event of NSCC's
wind-down, and to facilitate the continued prompt and accurate
clearance and settlement of securities transactions. Further to this
goal, the proposed Wind-down Rule would provide that NSCC would enter
into arrangements with a Failover Transferee, or would use commercially
reasonable efforts to enter into arrangements with a Third Party
Transferee, providing that, in either case, with respect to the
critical services and any non-critical services that are transferred
from NSCC to the Transferee, for at least a period of time to be agreed
upon (``Comparability Period''), the business transferred from NSCC to
the Transferee would be operated in a manner that is comparable to the
manner in which the business was previously operated by NSCC.
Specifically, the proposed Wind-down Rule would provide that: (1) The
rules of the Transferee and terms of membership agreements would be
comparable in substance and effect to the analogous Rules and
membership agreements of NSCC; (2) the rights and

obligations of any Members, Limited Members and Settling Banks that are
transferred to the Transferee would be comparable in substance and
effect to their rights and obligations as to NSCC; and (3) the
Transferee would operate the transferred business and provide any
services that are transferred in a comparable manner to which such
services were provided by NSCC. The purpose of these provisions and the
intended effect of the proposed Wind-down Rule is to facilitate a
smooth transition of NSCC's business to a Transferee and to provide
that, for at least the Comparability Period, the Transferee (1) would
operate the transferred business in a manner that is comparable in
substance and effect to the manner in which the business was operated
by NSCC, and (2) would not require sudden and disruptive changes in the
systems, operations and business practices of the new members of the
Transferee.
    Subordination of Claims Provisions and Miscellaneous Matters. The
proposed Wind-down Rule would also include a provision addressing the
subordination of unsecured claims against NSCC of Members and Limited
Members who fail to participate in NSCC's recovery efforts (i.e., such
firms are delinquent in their obligations to NSCC or elect to retire
from NSCC in order to minimize their obligations with respect to the
allocation of losses, pursuant to the Rules). This provision is
designed to incentivize Members to participate in NSCC's recovery
efforts.\52\
---------------------------------------------------------------------------

    \52\ Nothing in the proposed Wind-down Rule would seek to
prevent a Member, Limited Member or Settling Bank that retired its
membership at NSCC from applying for membership with the Transferee.
Once its NSCC membership is terminated, however, such firm would not
be able to benefit from the membership assignment that would be
effected by this proposed Wind-down Rule, and it would have to apply
for membership directly with the Transferee, subject to its
membership application and review process.
---------------------------------------------------------------------------

    The proposed Wind-down Rule would address other ex-ante matters
including provisions providing that Members, Limited Members and
Settling Banks (1) will assist and cooperate with NSCC to effectuate
the transfer of NSCC's business to a Transferee, (2) consent to the
provisions of the rule, and (3) grant NSCC power of attorney to execute
and deliver on their behalf documents and instruments that may be
requested by the Transferee. Finally, the Proposed Rule would include a
limitation of liability for any actions taken or omitted to be taken by
NSCC pursuant to the Proposed Rule.
Rule 60 (Market Disruption and Force Majeure)
    The proposed Rule 60 (``Force Majeure Rule'') would address NSCC's
authority to take certain actions upon the occurrence, and during the
pendency, of a ``Market Disruption Event,'' as defined therein. The
Proposed Rule is designed to clarify NSCC's ability to take actions to
address extraordinary events outside of the control of NSCC and of its
membership, and to mitigate the effect of such events by facilitating
the continuity of services (or, if deemed necessary, the temporary
suspension of services). To that end, under the proposed Force Majeure
Rule, NSCC would be entitled, during the pendency of a Market
Disruption Event, to (1) suspend the provision of any or all services,
and (2) take, or refrain from taking, or require Members and Limited
Members to take, or refrain from taking, any actions it considers
appropriate to address, alleviate, or mitigate the event and facilitate
the continuation of NSCC's services as may be practicable.
    The proposed Force Majeure Rule would identify the events or
circumstances that would be considered 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. The proposed Force
Majeure Rule would define the governance procedures for how NSCC would
determine whether, and how, to implement the provisions of the rule. A
determination that a Market Disruption Event has occurred would
generally be made by the Board, but the Proposed Rule would provide for
limited, interim delegation of authority to a specified officer or
management committee if the Board would not be able to take timely
action. In the event such delegated authority is exercised, the
proposed Force Majeure Rule would require that the Board be convened as
promptly as practicable, no later than five Business Days after such
determination has been made, to ratify, modify, or rescind the action.
The proposed Force Majeure Rule would also provide for prompt
notification to the Commission, and advance consultation with
Commission staff, when practicable. The Proposed Rule would require
Members and Limited Members to notify NSCC immediately upon becoming
aware of a Market Disruption Event, and, likewise, would require NSCC
to notify Members and Limited Members if it has triggered the Proposed
Rule.
    Finally, the Proposed Rule would address other related matters,
including a limitation of liability for any failure or delay in
performance, in whole or in part, arising out of the Market Disruption
Event.
Proposed Change to the Rule Numbers
    In order to align the order of the Proposed Rules with the order of
comparable rules in the rulebooks of the other Clearing Agencies, NSCC
is also proposing to re-number the current Rule 42 (Wind-down of a
Member, Fund Member or Insurance Carrier/Retirement Services Member) to
Rule 40, which is currently reserved for future use, as shown on
Exhibit 5b, hereto.
2. Statutory Basis
    NSCC believes that the proposal is consistent with the requirements
of the Act and the rules and regulations thereunder applicable to a
registered clearing agency. In particular, NSCC believes that the R&W
Plan, each of the Proposed Rules, and the proposed change to Rule
numbers are consistent with Section 17A(b)(3)(F) of the Act,\53\ the
R&W Plan and each of the Proposed Rules are consistent with Rule 17Ad-
22(e)(3)(ii) under the Act,\54\ and the R&W Plan is consistent with
Rule 17Ad-22(e)(15)(ii) under the Act,\55\ for the reasons described
below.
---------------------------------------------------------------------------

    \53\ 15 U.S.C. 78q-1(b)(3)(F).
    \54\ 17 CFR 240.17Ad-22(e)(3)(ii).
    \55\ Id. at 240.17Ad-22(e)(15)(ii).
---------------------------------------------------------------------------

    Section 17A(b)(3)(F) of the Act requires, in part, that the rules
of NSCC be designed 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 NSCC or
for which it is responsible.\56\ The Recovery Plan and the proposed
Force Majeure Rule would promote the prompt and accurate clearance and
settlement of securities transactions by providing NSCC with a roadmap
for actions it may employ to mitigate losses, and monitor and, as
needed, stabilize, its financial condition, which would allow it to
continue its critical clearance and settlement services in stress
situations. Further, as described above, the Recovery Plan is designed
to identify the actions and tools NSCC may use to address and minimize
losses to both NSCC and Members. The Recovery Plan and the proposed
Force Majeure Rule would provide NSCC's management and the Board with
guidance in this regard by identifying the indicators and governance
around the use and application of such tools to

enable them to address stress situations in a manner most appropriate
for the circumstances. Therefore, the Recovery Plan and the proposed
Force Majeure Rule would also contribute to the safeguarding of
securities and funds which are in the custody or control of NSCC or for
which it is responsible by enabling actions that would address and
minimize losses.
---------------------------------------------------------------------------

    \56\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

    The Wind-down Plan and the proposed Corporation Default Rule and
Wind-down Rule, which would both facilitate the implementation of the
Wind-down Plan, would also promote the prompt and accurate clearance
and settlement of securities transactions and assure the safeguarding
of securities and funds which are in the custody or control of NSCC or
for which it is responsible. The Wind-down Plan and the proposed
Corporation Default Rule and Wind-down Rule would collectively
establish a framework for the transfer and orderly wind-down of NSCC's
business. These proposals would establish clear mechanisms for the
transfer of NSCC's critical services and membership, and for the
treatment of open, guaranteed CNS transactions in the event of NSCC's
default. By doing so, the Wind-down Plan and these Proposed Rules are
designed to facilitate the continuity of NSCC's critical services and
enable Members and Limited Members to maintain access to NSCC's
services through the transfer of its membership in the event NSCC
defaults or the Wind-down Plan is triggered by the Board. Therefore, by
facilitating the continuity of NSCC's critical clearance and settlement
services, NSCC believes the proposals would promote the prompt and
accurate clearance and settlement of securities transactions. Further,
by creating a framework for the transfer and orderly wind-down of
NSCC's business, NSCC believes the proposals would enhance the
safeguarding of securities and funds which are in the custody or
control of NSCC or for which it is responsible.
    Finally, the proposed change to the Rule numbers would align the
order of the Proposed Rules with the order of comparable rules in the
rulebooks of the other Clearing Agencies. Therefore, NSCC believes the
proposed change would create ease of reference, particularly for
Members that are also participants of the other Clearing Agencies, and,
as such, would assist in promoting the prompt and accurate clearance
and settlement of securities transactions.
    Therefore, NSCC believes the R&W Plan, each of the Proposed Rules,
and the proposed change to Rule numbers are consistent with the
requirements of Section 17A(b)(3)(F) of the Act.\57\
---------------------------------------------------------------------------

    \57\ Id.
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(3)(ii) under the Act requires NSCC to establish,
implement, maintain and enforce written policies and procedures
reasonably designed to maintain a sound risk management framework for
comprehensively managing legal, credit, liquidity, operational, general
business, investment, custody, and other risks that arise in or are
borne by the covered clearing agency, which includes plans for the
recovery and orderly wind-down of the covered clearing agency
necessitated by credit losses, liquidity shortfalls, losses from
general business risk, or any other losses.\58\ The R&W Plan and the
Proposed Rules are designed to meet the requirements of Rule 17Ad-
22(e)(3)(ii).\59\
---------------------------------------------------------------------------

    \58\ 17 CFR 240.17Ad-22(e)(3)(ii).
    \59\ Id.
---------------------------------------------------------------------------

    The R&W Plan would be maintained by NSCC in compliance with Rule
17Ad-22(e)(3)(ii) in that it provides plans for the recovery and
orderly wind-down of NSCC necessitated by credit losses, liquidity
shortfalls, losses from general business risk, or any other losses, as
described above.\60\ Specifically, the Recovery Plan would define the
risk management activities, stress conditions and indicators, and tools
that NSCC may use to address stress scenarios that could eventually
prevent it from being able to provide its critical services as a going
concern. Through the framework of the Crisis Continuum, the Recovery
Plan would address measures that NSCC may take to address risks of
credit losses and liquidity shortfalls, and other losses that could
arise from a Member default. The Recovery Plan would also address the
management of general business risks and other non-default risks that
could lead to losses.
---------------------------------------------------------------------------

    \60\ Id.
---------------------------------------------------------------------------

    The Wind-down Plan would be triggered by a determination by the
Board that recovery efforts have not been, or are unlikely to be,
successful in returning NSCC to viability as a going concern. Once
triggered, the Wind-down Plan would set forth clear mechanisms for the
transfer of NSCC's membership and business, and would be designed to
facilitate continued access to NSCC's critical services and to minimize
market impact of the transfer. By establishing the framework and
strategy for the execution of the transfer and wind-down of NSCC in
order to facilitate continuous access to NSCC's critical services, the
Wind-down Plan establishes a plan for the orderly wind-down of NSCC.
Therefore, NSCC believes the R&W Plan would provide plans for the
recovery and orderly wind-down of the covered clearing agency
necessitated by credit losses, liquidity shortfalls, losses from
general business risk, or any other losses, and, as such, meets the
requirements of Rule 17Ad-22(e)(3)(ii).\61\
---------------------------------------------------------------------------

    \61\ Id.
---------------------------------------------------------------------------

    As described in greater detail above, the Proposed Rules are
designed to facilitate the execution of the R&W Plan, provide Members
and Limited Members with transparency regarding the material provisions
of the Plan, and provide NSCC with a legal basis for implementation of
those provisions. As such, NSCC also believes the Proposed Rules meet
the requirements of Rule 17Ad-22(e)(3)(ii).\62\
---------------------------------------------------------------------------

    \62\ Id.
---------------------------------------------------------------------------

    NSCC has evaluated the recovery tools that would be identified in
the Recovery Plan and has determined that these tools are
comprehensive, effective, and transparent, and that such tools provide
appropriate incentives to NSCC's Members to manage the risks they
present. The recovery tools, as outlined in the Recovery Plan and in
the proposed Force Majeure Rule, provide NSCC with a comprehensive set
of options to address its material risks and support the resiliency of
its critical services under a range of stress scenarios. NSCC also
believes the recovery tools are effective, as NSCC has both legal basis
and operational capability to execute these tools in a timely and
reliable manner. Many of the recovery tools are provided for in the
Rules; Members are bound by the Rules through their membership
agreements with NSCC, and the Rules are adopted pursuant to a framework
established by Rule 19b-4 under the Act,\63\ providing a legal basis
for the recovery tools found therein. Other recovery tools have legal
basis in contractual arrangements to which NSCC is a party, as
described above. Further, as many of the tools are embedded in NSCC's
ongoing risk management practices or are embedded into its predefined
default-management procedures, NSCC is able to execute these tools, in
most cases, when needed and without material operational or
organizational delay.
---------------------------------------------------------------------------

    \63\ Id. at 240.19b-4.
---------------------------------------------------------------------------

    The majority of the recovery tools are also transparent, as they
are, or are proposed to be, included in the Rules, which are publicly
available. NSCC believes the recovery tools also provide appropriate
incentives to the Members, as they are designed to control the amount
of risk they present to NSCC's

clearance and settlement system. Members' financial obligations to
NSCC, particularly their Required Deposits to the Clearing Fund, are
measured by the risk posed by the Members' activity in NSCC's systems,
which incentivizes them to manage that risk which would correspond to
lower financial obligations. Finally, NSCC's Recovery Plan provides for
a continuous evaluation of the systemic consequences of executing its
recovery tools, with the goal of minimizing their negative impact. The
Recovery Plan would outline various indicators over a timeline of
increasing stress, the Crisis Continuum, with escalation triggers to
NSCC management or the Board, as appropriate. This approach would allow
for timely evaluation of the situation and the possible impacts of the
use of a recovery tool in order to minimize the negative effects of the
stress scenario. Therefore, NSCC believes that the recovery tools that
would be identified and described in its Recovery Plan, including the
authority provided to it in the proposed Force Majeure Rule, would meet
the criteria identified within guidance published by the Commission in
connection with the adoption of Rule 17Ad-22(e)(3)(ii).\64\
---------------------------------------------------------------------------

    \64\ Supra note 41.
---------------------------------------------------------------------------

    Therefore, NSCC believes the R&W Plan and each of the Proposed
Rules are consistent with Rule 17Ad-22(e)(3)(ii).\65\
---------------------------------------------------------------------------

    \65\ 17 CFR 240.17Ad-22(e)(3)(ii).
---------------------------------------------------------------------------

    Rule 17Ad-22(e)(15)(ii) under the Act requires NSCC to establish,
implement, maintain and enforce written policies and procedures
reasonably designed to identify, monitor, and manage its general
business risk and hold sufficient LNA to cover potential general
business losses so that NSCC can continue operations and services as a
going concern if those losses materialize, including by holding LNA
equal to the greater of either (x) six months of the covered clearing
agency's current operating expenses, or (y) the amount determined by
the board of directors to be sufficient to ensure a recovery or orderly
wind-down of critical operations and services of the covered clearing
agency.\66\ While the Capital Policy addresses how NSCC holds LNA in
compliance with these requirements, the Wind-down Plan would include an
analysis that would estimate the amount of time and the costs to
achieve a recovery or orderly wind-down of NSCC's critical operations
and services, and would provide that the Board review and approve this
analysis and estimation annually. The Wind-down Plan would also provide
that the estimate would be the ``Recovery/Wind-down Capital
Requirement'' under the Capital Policy. Under that policy, the General
Business Risk Capital Requirement, which is the sufficient amount of
LNA that NSCC should hold to cover potential general business losses so
that it can continue operations and services as a going concern if
those losses materialize, is calculated as the greatest of three
estimated amounts, one of which is this Recovery/Wind-down Capital
Requirement. Therefore, NSCC believes the R&W Plan, as it interrelates
with the Capital Policy, is consistent with Rule 17Ad-
22(e)(15)(ii).\67\
---------------------------------------------------------------------------

    \66\ Id. at 240.17Ad-22(e)(15)(ii).
    \67\ Id.
---------------------------------------------------------------------------

(B) Clearing Agency's Statement on Burden on Competition

    NSCC does not believe the proposal would have any impact, or impose
any burden, on competition not necessary or appropriate in furtherance
of the purpose of the Act.\68\ The proposal would apply uniformly to
all Members and Limited Members. NSCC does not anticipate that the
proposal would affect its day-to-day operations under normal
circumstances, or in the management of a typical Member default
scenario or non-default event. NSCC is not proposing to alter the
standards or requirements for becoming or remaining a Member, or
otherwise using its services. NSCC also does not propose to change its
methodology for calculation of margin or Clearing Fund contributions.
The proposal is intended to (1) address the risk of loss events and
identify the tools and resources available to it to withstand and
recover from such events, so that it can restore normal operations, and
(2) provide a framework for its orderly wind-down and the transfer of
its business in the event those recovery tools do not restore NSCC to
financial viability, as described herein.
---------------------------------------------------------------------------

    \68\ 15 U.S.C. 78q-1(b)(3)(I).
---------------------------------------------------------------------------

    The R&W Plan and each of the Proposed Rules have been developed and
documented in order to satisfy applicable regulatory requirements, as
discussed above.
    With respect to the Recovery Plan, the proposal generally reflects
NSCC's existing tools and existing internal procedures. Existing tools
that would have a direct impact on the rights, responsibilities or
obligations of Members are reflected in the existing Rules or are
proposed to be included in the Rules. Accordingly, the Recovery Plan
and the proposed Force Majeure Rule are intended to provide a roadmap,
define the strategy and identify the tools available to NSCC in
connection with its recovery efforts. By proposing to enhance NSCC's
existing internal management and its regulatory compliance related to
its recovery efforts, NSCC does not believe the Recovery Plan or the
proposed Force Majeure Rule would have any impact, or impose any
burden, on competition.
    With respect to the Wind-down Plan, the proposed Corporation
Default Rule, and the proposed Wind-down Rule, which facilitate the
execution of the Wind-down Plan, the proposal would operate to effect
the transfer of all eligible Members and Limited Members to the
Transferee, and would not prohibit any market participant from either
bidding to become the Transferee or from applying for membership with
the Transferee. The proposal also would not prohibit any Member or
Limited Member from withdrawing from NSCC prior to the Transfer Time,
as is permitted under the Rules today, or from applying for membership
with the Transferee. Therefore, as the proposal would treat each
similarly situated Member identically under the Wind-down Plan and
under these Proposed Rules, NSCC does not believe the Wind-down Plan,
the proposed Corporation Default Rule, or the proposed Wind-down Rule
would have any impact, or impose any burden, on competition.
    NSCC does not believe that the proposed change to the Rule numbers
would have any impact on competition because this proposed change is
technical in nature and would not change NSCC's current practices or
the rights or obligations of Members.

(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants, or Others

    While NSCC has not solicited or received any written comments
relating to this proposal, NSCC has conducted outreach to Members in
order to provide them with notice of the proposal. NSCC will notify the
Commission of any written comments received by NSCC.

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 clearing agency 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.
    The proposal shall not take effect until all regulatory actions
required with respect to the proposal are completed.

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

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NSCC-2017-017 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-NSCC-2017-017. 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 the filing also will be available for inspection
and copying at the principal office of NSCC and on DTCC's website
(http://dtcc.com/legal/sec-rule-filings.aspx). 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-NSCC-2017-017 and should be submitted on
or before January 29, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\69\
---------------------------------------------------------------------------

    \69\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-00078 Filed 1-5-18; 8:45 am]
 BILLING CODE 8011-01-P