85704 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Notices 

25 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3 15 U.S.C. 78s(b)(3)(A). 

4 17 CFR 240.19b–4(f)(1). 

5Capitalized terms used but not defined herein 

have the meanings specified in the ICE Clear 

Europe Clearing Rules (the ‘‘Rules’’). 

available publicly. All submissions 

should refer to File Number SR– 

CboeBZX–2020–089 and should be 

submitted on or before January 19, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.25

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2020–28657 Filed 12–28–20; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–90746; File No. SR–ICEEU– 

2020–016] 

Self-Regulatory Organizations; ICE 

Clear Europe Limited; Notice of Filing 

and Immediate Effectiveness of 

Proposed Rule Change Relating to 

Publication of a Circular Regarding the 

Interpretation of References to EU 

Legislation in the Clearing Rules at the 

End of the Brexit Transition Period 

December 21, 2020. 

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 

11, 2020, ICE Clear Europe Limited 

(‘‘ICE Clear Europe’’ or the ‘‘Clearing 

House’’) filed with the Securities and 

Exchange Commission (‘‘Commission’’) 

the proposed rule changes described in 

Items I, II and III below, which Items 

have been prepared primarily by ICE 

Clear Europe. ICE Clear Europe filed the 

proposed rule change pursuant to 

Section 19(b)(3)(A) of the Act 3 and Rule 

19b–4(f)(1) thereunder,4 such that the 

proposed rule change was immediately 

effective upon filing with the 

Commission. The Commission is 

publishing this notice to solicit 

comments on the proposed rule change 

from interested persons. 

I. Clearing Agency’s Statement of the 

Terms of Substance of the Proposed 

Rule Change 

ICE Clear Europe is proposing to 

publish a Circular, titled ICE Clear 

Europe: Interpretation of References to 

EU Legislation in the Clearing Rules 

Post-Brexit (the ‘‘Circular’’), to provide 

guidance as to the interpretation of 

references to European Union (‘‘EU’’) 

directives and regulations in the ICE 

Clear Europe Clearing Rules and 

Procedures 5 in the event that the United 

Kingdom (‘‘UK’’) ceases to be an EU 

member state, in circumstances where 

no withdrawal agreement stipulating 

that EU laws will continue to apply in 

the UK has been agreed between the UK 

and the EU–27. The interpretation 

contained in the Circular will only 

apply under such circumstances. 

II. Clearing Agency’s Statement of the 

Purpose of, and Statutory Basis for, the 

Proposed Rule Change 

In its filing with the Commission, ICE 

Clear Europe included statements 

concerning the purpose of and basis for 

the proposed rule change and discussed 

any comments it received on the 

proposed rule change. The text of these 

statements may be examined at the 

places specified in Item IV below. ICE 

Clear Europe has prepared summaries, 

set forth in sections (A), (B), and (C) 

below, of the most significant aspects of 

such statements. 

(A) Clearing Agency’s Statement of the 

Purpose of, and Statutory Basis for, the 

Proposed Rule Change 

(a) Purpose 

The purpose of the proposed Circular 

is to provide guidance with respect to 

the interpretation of certain provisions 

in the Rules and Procedures in the event 

that the UK exits the Transition Period, 

in circumstances where no trade 

agreement has been agreed between the 

UK and the EU–27 stipulating that EU 

laws will continue to apply in the UK. 

In such circumstances, directly 

applicable EU directives and regulations 

will be incorporated into UK law with 

modifications at the end of the 

Transition Period pursuant to the 

European Union (Withdrawal) Act 2018 

(the ‘‘EUWA’’), which would result in 

there being two versions of a directly 

applicable EU legislative act which may 

be applicable to the Rules: (1) The 

version as enacted in the EU, directly 

applicable throughout the EU (and, in 

certain cases, the EEA); and (2) the 

version incorporated into UK law 

(referred to as ‘‘on-shored’’). 

There are various references to EU 

directives and regulations in the Rules 

and Procedures; others may arise by 

implication by virtue of definitions such 

as that of ‘‘Applicable Laws’’ or 

‘‘Governmental Authority’’ (Rule 101). 

ICE Clear Europe is proposing to 

publish the Circular to provide guidance 

as to the proper interpretation of such 

references in the event of the end of the 

Transition Period without a trade 

agreement in place that provides for 

continued applicability of EU law in the 

UK. The guidance is intended to be 

consistent with the views of legal 

practitioners in the UK with respect to 

references to EU directives and 

regulations in English law contracts 

generally, but applied to the particular 

definitions and situations that arise 

under the Rules and Procedures. 

The Circular sets out several 

principles that will be applied by ICE 

Clear Europe when interpreting 

references to an EU regulation or 

directive in its Rules: 

1. Where the reference concerns an 

obligation on, or otherwise applies to, 

the Clearing House or a UK Clearing 

Member: 

Æ Where the reference is to an EU 

regulation, it should be interpreted as 

the regulation as it forms part of UK 

domestic law through section 3 of the 

EUWA, and as amended by UK law 

from time to time; and 

Æ Where the reference is to an EU 

directive, it should be interpreted as the 

UK domestic law corresponding to the 

directive or provision thereof. 

2. Where the reference concerns an 

obligation on, or otherwise applies to, 

an EU Clearing Member: 

Æ Where the reference is to an EU 

regulation, it should be interpreted as 

the regulation as it applies in the EU, 

and as amended by EU law from time 

to time; and 

Æ Where the reference is to an EU 

directive, it should be interpreted as the 

EU directive, as amended by EU law 

from time to time and as implemented 

in the relevant member state of the EU 

Clearing Member. 

The Circular also addresses situations 

where both sets of laws apply, for 

example for entities established in the 

UK with an EU branch (or vice versa) or 

which continue to be regulated in both 

systems under cross-border licenses, the 

UK temporary permissions regime or 

other grandfathering arrangements (via 

reverse solicitation or otherwise). By 

way of example, it explains how Rule 

requirements that Clearing Members 

maintain sufficient capital would 

require UK Clearing Members to comply 

with the on-shored version of the 

applicable regulatory requirements as 

well as applicable EU requirements for 

any EU branch or to the extent they are 

subject to EU consolidated supervision. 

EU Clearing Members with a UK branch 

or which are subject to UK consolidated 

supervision would be required to 

comply with UK capital rules equivalent 

to the EU rules, to the extent applicable 

(in addition to their applicable home 

country requirements). Rule 


KHAMMOND on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Notices 85705 

6 15 U.S.C. 78q–1. 

7 17 CFR 240.17Ad–22. 

8 15 U.S.C. 78q–1(b)(3)(F). 

9 17 CFR 240.17Ad–22(e)(1). 

10 17 CFR 240.17Ad–22. 

requirements that Clearing Members 

maintain segregated accounts would 

require UK Clearing Members to comply 

with the on-shored version of the 

applicable regulatory requirements, 

while EU Clearing Members would be 

required to comply with the existing EU 

regulations. 

The Circular further sets out certain 

exceptions to these general principles 

relating to the following: 

• A reference to an EU law relating to 

emission allowance units issued under 

the EU Emissions Trading Scheme 

should be interpreted, as regards EU 

emission allowances, to continue to 

refer to the EU law; 

• References to an EU law, as it 

relates to UK emission allowances, will 

refer to the new UK Emissions Trading 

Scheme (UK ETS). The Circular also 

notes that UK emissions allowances, 

unlike the EU emissions allowances, 

have not been designated as investments 

under the UK Financial Service and 

Markets Act and therefore will not be 

covered as deliveries of financial 

instruments under the Rules or covered 

by the Part 12 settlement finality rules 

in the Rules, unless and until that law 

is changed; 

• References to EU member state laws 

transposing or implementing an EU 

directive will be read to include UK 

laws corresponding to that EU directive; 

• Certain references relating to the 

European Market Infrastructure 

Regulation (Regulation (EU) No. 648/ 

2012) and related EU authorities will be 

read to continue to refer to relevant EU 

law and authorities, for example in the 

context of ICE Clear Europe’s status as 

a third country central counterparty 

thereunder; 

• As the Clearing House has a 

designated or deemed national 

settlement finality directive status in 

certain EU member states, Part 12 of the 

Rules will be interpreted as constituting 

the settlement finality rules applicable 

to its designated system under the laws 

of those EU member states; and 

• References relating to EU data 

protection legislation are excluded, 

since separate amendments will be 

proposed to the Clearing Rules to 

address Brexit-related data protection 

issues. 

(b) Statutory Basis 

ICE Clear Europe believes that the 

proposed rule change is consistent with 

the requirements of Section 17A of the 

Act 6 and the regulations thereunder 

applicable to it, including the standards 

under Rule 17Ad–22.7 In particular, 

Section 17A(b)(3)(F) of the Act 8

requires, among other things, that the 

rules of a clearing agency be designed to 

promote the prompt and accurate 

clearance and settlement of securities 

transactions and, to the extent 

applicable, derivative agreements, 

contracts, and transactions, the 

safeguarding of securities and funds in 

the custody or control of the clearing 

agency or for which it is responsible, 

and the protection of investors and the 

public interest. The proposed Circular 

would provide guidance with respect to 

the interpretation of the Rules that 

would apply to EU and UK Clearing 

Members and ICE Clear Europe upon 

the termination of the Transition Period 

if there is no trade agreement that 

provides for EU law to continue to 

apply in the UK. The interpretation 

would thus facilitate continued clearing 

by EU and UK Clearing Members in 

compliance with applicable law in 

relevant jurisdictions and promote the 

prompt and accurate clearance and 

settlement of transactions by such 

persons. As such, the interpretation is 

consistent with the safeguarding of 

securities and funds in the custody or 

control of the Clearing House or for 

which it is responsible, the protection of 

investors and the public interest. 

Moreover, the interpretation is 

consistent with Rule 17Ad–22(e)(1),9

which requires that each covered 

clearing agency establish, implement, 

maintain and enforce written policies 

and procedures reasonably designed to 

provide for a well-founded, clear, 

transparent, and enforceable legal basis 

for each aspect of its activities in all 

relevant jurisdictions. As discussed 

herein, the interpretation is designed to 

ensure that references to EU legislation 

in the Rules and Procedures are 

properly interpreted should the 

Transition Period end with no trade 

agreement stipulating that EU laws will 

continue to apply in the UK. The 

guidance set out in the Circular would 

facilitate continued clearing in light of 

the requirements of UK and EU law in 

those circumstances and would 

minimize the potential for disputes and 

legal uncertainty. ICE Clear Europe does 

not expect that the interpretation will 

adversely impact its ability to comply 

with the Act or any standards under 

Rule 17Ad–22.10

(B) Clearing Agency’s Statement on 

Burden on Competition 

ICE Clear Europe does not believe the 

proposed guidance in the Circular 

would have any impact, or impose any 

burden, on competition not necessary or 

appropriate in furtherance of the 

purpose of the Act. The guidance will 

not change the substantive requirements 

of any Rules or Procedures but will 

clarify the proper interpretation of 

references to EU legislation in order to 

facilitate that the Clearing House and 

EU and UK Clearing Members continue 

to adhere to applicable laws and 

regulations. ICE Clear Europe does not 

believe the interpretation will in itself 

materially affect the cost of, or access to, 

clearing. As a result, ICE Clear Europe 

does not believe the proposed rule 

change imposes any burden on 

competition that is inappropriate in 

furtherance of the purposes of the Act. 

(C) Clearing Agency’s Statement on 

Comments on the Proposed Rule 

Change Received From Members, 

Participants or Others 

Written comments relating to the 

proposed Circular have not been 

solicited or received. ICE Clear Europe 

will notify the Commission of any 

written comments received by ICE Clear 

Europe. 

III. Date of Effectiveness of the 

Proposed Rule Change for Commission 

Action 

The foregoing rule change has become 

effective pursuant to Section 19(b)(3)(A) 

of the Act and paragraph (f) of Rule 

19b–4 thereunder. At any time within 

60 days of the filing of the proposed rule 

change, the Commission summarily may 

temporarily suspend such rule change if 

it appears to the Commission that such 

action is necessary or appropriate in the 

public interest, for the protection of 

investors, or otherwise in furtherance of 

the purposes of the Act. 

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 rule-comments@

sec.gov. Please include File Number SR– 

ICEEU–2020–016 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. 


KHAMMOND on DSKJM1Z7X2PROD with NOTICES
85706 Federal Register / Vol. 85, No. 249 / Tuesday, December 29, 2020 / Notices 

11 17 CFR 200.30–3(a)(12). 

1 15 U.S.C. 78s(b)(1). 

2 17 CFR 240.19b–4. 

3See Section 6(d) of the MIAX Fee Schedule, 

Section 6(c) of the MIAX PEARL Options Fee 

Schedule, and Section 3(c) of the MIAX PEARL 

Equities Fee Schedule. 

4See Securities Exchange Act Release No. 85207 

(February 27, 2019), 84 FR 7963 (March 5, 2019) 

(SR–EMERALD–2019–09) (Notice of Filing and 

Immediate Effectiveness of a Proposed Rule Change 

To Establish MIAX Emerald Top of Market (‘‘ToM’’) 

Data Feed, MIAX Emerald Complex Top of Market 

(‘‘cToM’’) Data Feed, MIAX Emerald Administrative 

Information Subscriber (‘‘AIS’’) Data Feed, and 

MIAX Emerald Order Feed (‘‘MOR’’)). 

5See Fee Schedule, proposed Section 6(d). 

All submissions should refer to File 

Number SR–ICEEU–2020–016. This file 

number should be included on the 

subject line if email is used. To help the 

Commission process and review your 

comments more efficiently, please use 

only one method. The Commission will 

post all comments on the Commission’s 

internet website (http://www.sec.gov/ 

rules/sro.shtml). Copies of the 

submission, all subsequent 

amendments, all written statements 

with respect to the proposed rule 

change that are filed with the 

Commission, and all written 

communications relating to the 

proposed rule change between the 

Commission and any person, other than 

those that may be withheld from the 

public in accordance with the 

provisions of 5 U.S.C. 552, will be 

available for website viewing and 

printing in the Commission’s Public 

Reference Room, 100 F Street NE, 

Washington, DC 20549, on official 

business days between the hours of 

10:00 a.m. and 3:00 p.m. Copies of such 

filings will also be available for 

inspection and copying at the principal 

office of ICE Clear Europe and on ICE 

Clear Europe’s website at https://

www.theice.com/notices/Notices.shtml?

regulatoryFilings. All comments 

received will be posted without change. 

Persons submitting comments are 

cautioned that we do not redact or edit 

personal identifying information from 

comment submissions. You should 

submit only information that you wish 

to make available publicly. All 

submissions should refer to File 

Number SR–ICEEU–2020–016 and 

should be submitted on or before 

January 19, 2021. 

For the Commission, by the Division of 

Trading and Markets, pursuant to delegated 

authority.11

J. Matthew DeLesDernier, 

Assistant Secretary. 

[FR Doc. 2020–28660 Filed 12–28–20; 8:45 am] 

BILLING CODE 8011–01–P 

SECURITIES AND EXCHANGE 

COMMISSION 

[Release No. 34–90738; File No. SR– 

EMERALD–2020–20] 

Self-Regulatory Organizations; MIAX 

Emerald, LLC; Notice of Filing and 

Immediate Effectiveness of a Proposed 

Rule Change To Amend Its Fee 

Schedule To Establish a Fee for 

Historical Market Data 

December 21, 2020. 

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 

10, 2020, MIAX Emerald, LLC (‘‘MIAX 

Emerald’’ or ‘‘Exchange’’) 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 Exchange. The 

Commission is publishing this notice to 

solicit comments on the proposed rule 

change from interested persons. 

I. Self-Regulatory Organization’s 

Statement of the Terms of Substance of 

the Proposed Rule Change 

The Exchange is filing a proposal to 

amend the MIAX Emerald Fee Schedule 

(the ‘‘Fee Schedule’’). 

The text of the proposed rule change 

is available on the Exchange’s website at 

http://www.miaxoptions.com/rulefilings/emerald, at MIAX’s principal 

office, and at the Commission’s Public 

Reference Room. 

II. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

In its filing with the Commission, the 

Exchange 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 

Exchange has prepared summaries, set 

forth in sections A, B, and C below, of 

the most significant aspects of such 

statements. 

A. Self-Regulatory Organization’s 

Statement of the Purpose of, and 

Statutory Basis for, the Proposed Rule 

Change 

1. Purpose 

The Exchange proposes to amend the 

Fee Schedule to adopt new section 6(d), 

Historical Market Data, to describe the 

production of Exchange historical data 

and set forth the corresponding fee. The 

Exchange notes that the description of 

Historical Market Data and the proposed 

fee is identical to that currently charged 

by the Exchange’s affiliates, the Miami 

International Securities Exchange LLC 

(‘‘MIAX’’) and MIAX PEARL, LLC 

(‘‘MIAX PEARL’’).3

The Exchange proposes to offer 

Historical Market Data for MIAX 

Emerald, which is a data product that 

offers historical market data for orders 

entered on MIAX Emerald upon request. 

The Exchange proposes to charge a 

modest fee for the Historical Market 

Data, which will be based on the cost 

incurred by the Exchange in providing 

that data. Proposed Section 6(d) of the 

Fee Schedule describes the fee to be 

charged market participants that request 

Historical Market Data from MIAX 

Emerald. Historical Market Data is 

intended to aid market participants in 

analyzing trade and volume data, 

evaluating historical trends in the 

trading activity of a particular security, 

and enabling those market participants 

to test trading models and analytical 

strategies. Specifically, Historical 

Market Data includes all data that is 

captured and disseminated on the MIAX 

Emerald Top of Market (‘‘ToM’’) data 

feed, MIAX Emerald Complex Top of 

Market (‘‘cToM’’) data feed, MIAX 

Emerald Administrative Information 

Subscriber (‘‘AIS’’) data feed, and MIAX 

Emerald Order feed (‘‘MOR’’),4 and is 

available on a T + 1 basis.5

The Exchange proposes to only assess 

the fee for Historical Market Data on a 

user (whether Member or non-Member) 

that specifically requests such Historical 

Market Data. Historical Market Data will 

be uploaded onto an Exchange-provided 

device, which the Exchange will incur 

a cost to procure and provide to those 

that request the data. 

The Exchange proposed to charge a 

flat fee of $500 per device requested. 

Each device shall have a maximum 

storage capacity of 8 terabytes. Users 

may request up to six months of 

Historical Market Data per device, 

subject to the device’s storage capacity. 

Historical Data will be made available 


KHAMMOND on DSKJM1Z7X2PROD with NOTICES