[Federal Register Volume 83, Number 3 (Thursday, January 4, 2018)]
[Notices]
[Pages 546-551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28493]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82422; File No. SR-ICEEU-2017-014]


Self-Regulatory Organizations; ICE Clear Europe Limited; Notice 
of Filing and Order Granting Accelerated Approval of Proposed Rule 
Change Relating to Amendments to the ICE Clear Europe Clearing Rules 
and Procedures for Indirect Clearing

December 29, 2017.
    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, ICE Clear Europe Limited (``ICE Clear Europe'') 
filed with the Securities and Exchange Commission (``Commission'') the 
proposed rule change described in Items I, II, and III below, which 
Items have been prepared primarily by ICE Clear Europe. The Commission 
is publishing this notice and order to solicit comments on the proposed 
rule change from interested persons and to approve the proposed rule 
change on an accelerated basis.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Clearing Agency's Statement of the Terms of Substance of the 
Proposed Rule Change, Security-Based Swap Submission, or Advance Notice

    The principal purpose of the proposed rule change is to amend ICE 
Clear Europe's Rules, Clearing Procedures and CDS Procedures to 
implement certain requirements relating to indirect clearing and other 
matters under applicable European Union regulations.

II. Clearing Agency's Statement of the Purpose of, and Statutory Basis 
for, the Proposed Rule Change, Security-Based Swap Submission or 
Advance Notice

    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, Security-Based Swap Submission or 
Advance Notice

(a) Purpose
    The purpose of the proposed changes is to amend the Rules,\3\ 
Clearing Procedures and CDS Procedures to implement certain 
requirements under the European Union Markets in Financial Instruments 
Directive (``MiFID II'') \4\ and Markets in Financial Instruments 
Regulation (``MiFIR''),\5\ and related implementing regulations and 
technical standards,\6\ relating to indirect clearing and certain other 
matters as discussed herein. The relevant requirements under MiFID II 
and MiFIR will take effect on January 3, 2018.
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    \3\ Capitalized terms used but not defined herein have the 
meanings specified in the Rules.
    \4\ Directive 2014/65/EU of the European Parliament and of the 
Council of 15 May 2014 on markets in financial instruments and 
amending Directive 2002/92/EC and Directive 2011/61/EU.
    \5\ Regulation (EU) No. 600/2014 of the European Parliament and 
of the Council of 15 May 2014 on markets in financial instruments 
and amending Regulation (EU) No. 648/2012.
    \6\ Regulation (EU) 2017/2154 of 22 September 2017 supplementing 
Regulation (EU) No. 600/2014 of the European Parliament and of the 
Council with regard to regulatory technical standards on indirect 
clearing arrangements (the ``MiFIR RTS'') and Commission Delegated 
Regulation (EU) No. 149/2013, together with the amendments set out 
in Regulation (EU) 2017/2155 of 22 September 2017 amending Delegated 
Regulation (EU) No. 149/2013 with regard to regulatory technical 
standards on indirect clearing arrangements (the ``EMIR RTS'').
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Indirect Clearing
    The European Market Infrastructure Regulation (``EMIR'') \7\ and 
technical

[[Page 547]]

standards thereunder \8\ impose certain standards for indirect clearing 
arrangements for OTC derivatives clearing. MiFID II and MiFIR, and the 
related implementing regulations, extend this concept to exchange-
traded derivatives, and relevant EMIR technical standards are being 
simultaneously recast for consistency. In general, ``indirect 
clearing'' for this purpose refers to arrangements in which an entity 
that is itself a customer of a clearing member in turn is clearing for 
one or more of its own customers (``indirect clients''), as well as 
longer chains involving additional intermediaries.\9\ The new technical 
standards under EMIR, MiFIR and MiFID II \10\ have the objective that 
indirect clearing arrangements do not increase counterparty risk and 
that the assets and positions of the indirect client benefit from 
protections equivalent to those provided under EMIR for direct clients 
of a clearing member.\11\
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    \7\ Regulation (EU) No. 648/2012 of the European Parliament and 
of the Council of 4 July 2012 on OTC derivatives, central 
counterparties and trade repositories.
    \8\ Commission Delegated Regulation (EU) No. 149/2013.
    \9\ Specifically, indirect clearing arrangements are defined 
under both the EMIR and MiFIR RTS as ``the set of contractual 
relationships between providers and recipients of indirect clearing 
services provided by a client, an indirect client or a second 
indirect client.'' Article 1(a) of MiFIR RTS; Article 1(1) of EMIR 
RTS.
    \10\ For ease of reference, we refer to the relevant 
requirements of MiFID II, MiFIR, EMIR and technical standards 
thereunder discussed herein as ``MiFID II'' or ``MiFID II 
requirements''.
    \11\ MiFIR Article 30.
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    The new MiFID II requirements impose segregation obligations on 
direct clients that provide indirect clearing, as well as on clearing 
organizations and clearing members directly. Clearing members are 
required to open and maintain specific types of separate accounts 
(referred to as standard omnibus indirect accounts and gross omnibus 
indirect accounts), at clearing member level, for assets and positions 
held by their direct clients on behalf of indirect clients.\12\ 
(Standard omnibus indirect accounts are to be used to hold assets and 
positions of indirect clients on an omnibus basis, distinct from the 
accounts used for proprietary positions of the direct client. Gross 
omnibus indirect accounts provide a further level of segregation that 
enables the client (and clearing member) to distinguish the assets and 
positions of each indirect client.) CCPs in turn are required to open 
and maintain corresponding new forms of customer accounts for their 
clearing members, which are to be used to hold assets and positions of 
indirect clients of direct customers of the clearing member in standard 
omnibus indirect accounts and gross omnibus indirect accounts, 
respectively.\13\
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    \12\ MiFIR RTS Article 4(2).
    \13\ MiFIR RTS Article 4(4).
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    The amendments to the Rules and Clearing Procedures are designed to 
implement these new account type requirements at CCP level, while 
making certain allowances for FCM/BD Clearing Members in light of 
particular requirements of U.S. law, as discussed herein.
    In Rule 101, new definitions for a series of customer account 
categories relating to indirect clients accessing the clearing house 
through Non-FCM/BD Clearing Members have been added: ``Standard Omnibus 
Indirect Account for F&O,'' ``Standard TTFCA Omnibus Indirect Account 
for F&O,'' ``Standard Omnibus Indirect Account for CDS,'' ``Standard 
TTFCA Omnibus Indirect Account for CDS,'' ``Standard Omnibus Account 
for FX,'' ``Standard TTFCA Omnibus Indirect Account for FX,'' and 
``Segregated Gross Indirect Account'' (collectively referred to herein 
as ``indirect clearing accounts''). Appropriate references to these new 
account categories have been added throughout the definitions, 
including in the definitions of ``Customer Account Category'', 
``Customer-CM CDs Transaction'', ``Customer-CM F&O Transaction'' and 
``Customer-CM FX Transaction''. A new definition of ``Indirect Client'' 
has been added, consistent with the regulatory definition. Conforming 
changes are also made in the definition of Margin-flow Co-mingled 
Account and Nominated Customer Bank Account to clarify that equivalent 
procedures apply. A reference to MiFID I, which is to be repealed 
effective January 2018, has been removed from the definitions, and in 
various other provisions of the Rules.
    In Rules 102(f) and (q), conforming and clarifying changes are made 
to reflect the various customer account classes that may apply, in 
light of the additional indirect clearing accounts. Rule 102(g) is 
amended to require that Clearing Members, consistent with the MiFID II 
requirements, offer their Affected Customers with indirect clients the 
choice of a gross omnibus indirect account or a standard omnibus 
indirect account. The definition of ``Affected Customer'' in Rule 101 
has been amended to address indirect clearing situations as well as 
direct clearing. As a result of this definition, Rule 102(g) does not 
impose an obligation to make the new indirect clearing accounts 
available in situations where applicable law in the relevant 
jurisdiction prevents or prohibits such accounts from being offered. As 
discussed in more detail below, such limitations may, for example, 
apply to FCM/BD Clearing Members under applicable U.S. law.
    In Rule 202(a)(xxi), the obligation of Clearing Members to provide 
certain information to ICE Clear Europe with respect to segregated 
customer accounts is amended to include the new indirect client 
accounts. Similarly, Rule 203(a)(xx), which limits use of title 
transfer accounts where the clearing member is subject to UK CASS 
segregation rules, is amended to cover the new title transfer account 
categories for indirect clients. Conforming changes are also made to 
Rule 207(d) to specify the customer account categories for Non-FCM/BD 
Clearing Members.
    The amendments to Rule 302(a) incorporate the payment mechanics 
relating to segregated gross indirect accounts, in a manner similar to 
the approach used for Margin-flow Co-mingled Accounts. New paragraphs 
302(a)(vii) and (viii) address payment of amounts owed by and to the 
clearing member in respect of segregated gross indirect accounts, 
respectively. Conforming and clarifying changes are made in other 
paragraphs of Rule 302.
    Rule 401(o) is being amended to reflect the additional capacities 
through which a clearing member may enter into a contract for a 
customer account where the customer is providing indirect clearing 
services. The amendment distinguishes scenarios where the customer is 
acting for its own account from those where it is acting for the 
account of indirect clients. New subparagraphs (xiii)-(xviii) address 
the use of the indirect clearing accounts in various categories by Non-
FCM/BD Clearing Members acting for customers that in turn are acting 
for one or more indirect clients. In such cases, the clearing member 
must designate whether the contract is for: (A) A segregated gross 
indirect account, if the customer has communicated to the clearing 
member that the indirect client has elected to use such an account; or 
(B) otherwise, the appropriate type of standard omnibus indirect 
account for F&O, CDS or FX. In either case the contract will be 
recorded by ICE Clear Europe in accordance with such designation.
    Rule 503(k) has been amended to address transfer of Permitted Cover 
in respect of segregated gross indirect accounts, in a manner similar 
to the current treatment of Margin-flow Co-mingled Accounts. The 
amendments in particular address certain reporting required to be 
provided by the clearing member to the clearing house with respect to 
such Permitted Cover. Rule 504(c), which provides certain

[[Page 548]]

representations by clearing members concerning Permitted Cover they 
transfer to the clearing house, is amended in paragraph (v) to add a 
representation concerning compliance with obligations under MiFID II 
and other applicable laws to third parties (including with respect to 
receipt of assets from clients) and in paragraph (vi) to add references 
to the relevant classes of indirect client account.
    Various changes have been made to Rule 904 to address default 
management involving indirect client accounts. Rule 904(m), which 
addresses the transfer process for certain classes of customer account, 
has been clarified to exclude segregated gross indirect accounts, which 
are covered in new Rule 904(w), discussed below. Rule 904(v) is being 
added to set out principles that will apply when ICEU is calculating 
the net sums on segregated gross indirect accounts of a defaulting 
clearing member or determining the amounts available to be transferred 
to a transferee clearing member in respect of such an account, in a 
manner similar to the calculation of net sums for Margin-flow Co-
mingled Accounts. Rule 904(w) is being added to require that upon an 
event of default being declared in respect of a clearing member, ICEU 
commits to triggering the procedures for the transfer process for both 
margin and open contract positions recorded in segregated gross 
indirect accounts, subject to specified conditions similar those for 
other account categories.
    Rule 906(b), which provides that net sums will be determined 
separately in respect of each class of customer account, has been 
amended to reference the new classes of indirect client accounts, and 
to make certain other conforming changes. Pursuant to new Rule 907(n), 
ICEU will, if requested by a non-defaulting clearing member, transfer 
any contracts, margin or other permitted assets from a standard omnibus 
indirect account or segregated gross indirect account of that clearing 
member to a different standard omnibus indirect account or segregated 
gross indirect account of the same clearing member or will otherwise 
update the records relating to such an account to facilitate the 
management by the clearing member of the default of the customer or an 
indirect client.
    References to relevant indirect clearing accounts have been added 
in Rule 1516(a), which imposes certain requirements on clearing members 
for customer accounts for CDS Contracts.
    The CDS Standard Terms, the F&O Standard Terms and the FX Standard 
Terms have each been amended in a new paragraph 3(p), 3(q) and 3(p), 
respectively, to provide that each customer or indirect client that has 
chosen individual segregation through usage of a margin-flow co-mingled 
account or segregated gross indirect account authorizes the clearing 
member to determine how the different classes of permitted assets 
should be transferred to ICEU in respect of the relevant account, for 
purposes of revised Rule 503(k) as discussed above. In addition, 
conforming references to the new indirect client accounts have been 
added.
    The Clearing Procedures are also being amended to incorporate the 
new account categories, including a separate set of changes to address 
FCM/BD Clearing Members. As noted above, revised Rule 102(g) does not 
require clearing members to offer the new indirect client accounts 
where doing so would be inconsistent with relevant applicable law. In 
the case of FCM/BD Clearing Members, under the U.S. Commodity Exchange 
Act \14\ and U.S. Bankruptcy Code,\15\ segregation for customer account 
positions and assets is established on an omnibus basis by account 
class (U.S. futures, swaps, or non-U.S. futures) without distinguishing 
between clients and indirect clients (and without distinguishing among 
indirect clients). As a result, in the event of an FCM failure, all 
customers in the same account class (whether direct or indirect) share 
in the same pool of customer property for that account class. Because 
of this limitation on the ability to provide individual account 
segregation for indirect clients of customers of an FCM/BD Clearing 
Member, ICE Clear Europe is offering only a segregated form of 
position-keeping for indirect clients for such clearing members. 
Specifically, ICE Clear Europe will offer standard omnibus indirect 
accounts for FCM/BD Clearing Members that will be made available as 
position-keeping subaccounts of the existing customer accounts. Three 
such position-keeping subaccounts will be created, one linked to each 
of the FCM/BD Customer Accounts that use a gross margin model: The DCM 
Customer Account, the Swap Customer Account, and the Non-DCM/Swap 
Customer Account.\16\
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    \14\ 7 U.S.C. 1 et seq.
    \15\ Title 11, United States Code.
    \16\ Notwithstanding this change, the Swap Customer Account is 
not currently available for use by FCM/BD Clearing Members for 
customer positions in CDS Contracts (including CDS Contracts that 
are security-based swaps).
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    Each such subaccount can be used by FCM/BD Clearing Members to 
record positions of indirect clients of customers separately from 
positions of direct customers, and thus facilitate segregation of 
indirect clients from direct clients in the event of a client default 
and related record-keeping, consistent with certain of the MiFID II 
requirements as regards indirect clearing. In the event of a clearing 
member default, however, ICE Clear Europe would manage the default, as 
under the current Rules, separately for each customer account class, 
including any indirect client subaccount within such class, consistent 
with the requirements of the Commodity Exchange Act and U.S. Bankruptcy 
Code as discussed above.\17\
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    \17\ Only a single type of indirect client subaccount per 
account class is being made available for FCM/BD Clearing Members. 
In light of the segregation requirements under applicable U.S. law, 
and the corresponding limitation on the ability to offer individual 
account segregation, ICE Clear Europe does not believe that offering 
additional subaccounts based on the gross omnibus indirect account 
model would provide additional benefits for indirect clients.
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    Paragraph 2.3(3) of the Clearing Procedures is being amended to add 
the specific position-keeping subaccounts linked to the customer 
accounts for FCM/BD clearing members. In addition, Paragraphs 2.3(4) 
and 2.3(5) of the Clearing Procedures add the relevant position-keeping 
accounts for the new indirect client accounts for Non-FCM/BD Clearing 
Members, Conforming changes are added in paragraph 3.1 to reflect the 
corresponding margin accounts for the indirect client account 
categories. Conforming changes are made to the table of account 
categories following paragraph 3.2 of the Clearing Procedures.
Emission Allowances
    Various Rule changes are proposed to address the consequence of 
emission allowances becoming a new class of ``financial instrument'' 
under MiFID II.\18\ This includes new definitions for ``Emission 
Allowance'' and ``Emissions Registry'' in Rule 101, as well as 
conforming changes to the definition of ``Delivery Facility.'' Various 
amendments have also been made to Part 12 of the Rules to address 
settlement finality with respect to transactions in Emission 
Allowances, which as a result of this designation become in-scope as 
transfer orders for purposes of the EU Settlement Finality Directive 
\19\ and UK Settlement Finality Regulations \20\. Rule 1202 has been

[[Page 549]]

amended to introduce the concept of delivery orders for Emission 
Allowances for purposes of the application of Settlement Finality 
Regulations. Rule 1203(j) has been added to address the timing as of 
which Emission Allowance Delivery Orders become irrevocable. Rule 
1204(i) has been added to address cancellation of such Delivery Orders 
prior to becoming irrevocable. Rule 1205(g) addresses satisfaction of 
such Delivery Orders. Certain other clarifying and conforming changes 
are made in Rules 1202(a)(iii), 1203(i) and 1204(a) and 1204(d).
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    \18\ MIFID II, Annex 1, Section C(11).
    \19\ Directive 98/26/EC of the European Parliament and of the 
Council of 19 May 1998 on settlement finality in payment and 
securities settlement systems.
    \20\ Financial Markets and Insolvency (Settlement Finality) 
Regulations 1999 (SI 1999/2979). See also the UK Financial Services 
and Markets Act 2000 (Markets in Financial Instruments) Regulations 
2017 (SI 2017/701), which amends the definition of ``securities'' 
(used in the context of a ``securities transfer order'') in the 
Settlement Finality Regulations to refer to the definition of 
``securities'' under MiFID II (Regulation 50(4), Schedule 5, 
paragraph 2(b)).
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Straight-Through Processing
    MiFID II introduces new straight-through processing requirements 
for cleared transactions. To comply with these requirements, the CDS 
Procedures have been amended to implement certain requirements under 
MiFID II relating to the timing of submission of transactions for 
clearing. Specifically, Section 4.4(a) has been amended to clarify the 
clearing house's obligation to give notice of the acceptance or 
rejection of a submitted CDS transaction on a real-time basis for 
purposes of MiFID II. The amendments also address the submission of 
certain bilaterally executed transactions, in light of the trade 
execution requirements of MiFID II, and require that clearing members 
only submit CDS trade particulars in relation to bilateral CDS 
transactions if, at the time such transactions were entered into, it 
was not agreed that the transaction would be submitted for clearing. 
Certain other clarifications to the bilateral submission process are 
also made. Paragraphs 4.17 and 4.18 have been amended to revise the 
timeframes under which ICEU will accept or reject CDS trade particulars 
submitted for clearing, depending on the manner of execution or 
facility through which the transaction was executed, consistent with 
the requirements of MiFID II. The amendments supplement the existing 
provisions in the Clearing Procedures that implement applicable U.S. 
law requirements as to the timing of submission of clearing and 
transaction processing,\21\ such that ICE Clear Europe will be in 
compliance with both U.S. and EU requirements in this regard.
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    \21\ See, e.g., 17 CFR 39.12(b)(7).
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Market Maker Amendments
    The Clearing Procedures have also been amended as a consequence of 
proposed revisions to the ICE Futures Europe Rules in light of the 
MiFID II market making scheme requirements. Under the proposed 
amendments, ICE Futures Europe's existing ``Market Maker Programs'' 
have been renamed as ``Liquidity Provider Programs'' to distinguish the 
existing incentive scheme under the ICE Futures Europe Rules from the 
market maker scheme regulated under MiFID II in relation to certain 
types of financial instruments. As a result of this change, the 
Clearing Procedures are being amended to rename the relevant position 
keeping account as ``Liquidity Provider'' rather than ``Market Maker,'' 
specifically in Paragraph 2.3(b)(vii) and the related summary table 
following Paragraph 3.2(a).
(b) Statutory Basis
    ICE Clear Europe believes that the proposed amendments are 
consistent with the requirements of Section 17A of the Act \22\ and the 
regulations thereunder applicable to it, including the standards under 
Rule 17Ad-22.\23\ In particular, Section 17A(b)(3)(F) of the Act \24\ 
requires, among other things, that the rules of a clearing agency be 
designed to promote the prompt and accurate clearance and settlement of 
securities transactions and, to the extent applicable, derivative 
agreements, contracts, and transactions, the safeguarding of securities 
and funds in the custody or control of the clearing agency or for which 
it is responsible, and the protection of investors and the public 
interest.
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    \22\ 15 U.S.C. 78q-1.
    \23\ 17 CFR 240.17Ad-22.
    \24\ 15 U.S.C. 78q-1(b)(3)(F).
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    The proposed amendments are intended to address specific 
requirements in MiFID II relating to indirect clearing, as well as 
certain other MiFID II requirements and implications. In general, the 
amendments adopt new account classes mandated by these European 
regulations to facilitate protection of positions and margin provided 
by indirect clients of customers of clearing members. Through the new 
account classes, which generally mirror other account classes available 
to Non-FCM/BD Clearing Members, the amendments will enable clearing 
members to separate such positions and margin of indirect clients from 
other positions and margin of direct customers. This in turn is 
intended to support enhanced protections for indirect clients in the 
event of a default of the customer of the clearing member, consistent 
with the goals of MiFID II. The amendments also adopt a separate set of 
additional position-keeping accounts for indirect clients of customers 
of FCM/BD Clearing Members, which are designed to facilitate tracking 
of positions of such clients by clearing members while taking into the 
account the particular requirements of the segregation regime for FCM/
BD Clearing Members under the Commodity Exchange Act and U.S. 
Bankruptcy Code. In ICE Clear Europe's view, the amendments are thus 
designed to promote the prompt and accurate clearance and settlement of 
derivative transactions, and promote the protection of customers and 
indirect clients and the public interest, in a manner consistent with 
Section 17A(b)(3)(F). Although, as noted above, the amendments treat 
FCM/BD Clearing Members and Non-FCM/BD Clearing Members differently in 
terms of the availability of indirect clearing accounts, these 
distinctions reflect the relevant differences in the legal and 
regulatory framework applicable to such clearing members, and as such 
do not unfairly discriminate among clearing members within the meaning 
of Section 17A(b)(3)F) of the Act.
    The amendments are also consistent with the relevant requirements 
of Rule 17Ad-22. In particular, Rule 17Ad-22(e)(1) \25\ requires that a 
registered 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. The amendments 
are necessary to comply with the European regulations. In adopting 
specific alternative rules for FCM/BD Clearing Members, ICE Clear 
Europe has also taken account of the particular requirements applicable 
to such clearing members under U.S. law. As a result, in ICE Clear 
Europe's view, the amendments are consistent with the requirements of 
Rule 17Ad-22(e)(1).
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    \25\ 17 CFR 240.17Ad-22(e)(1).
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    Rule 17Ad-22(e)(14) \26\ requires that a registered clearing agency 
establish, implement, maintain and enforce written policies and 
procedures reasonably designed to enable the segregation and 
portability of positions of a participant's customers and the 
collateral provided to the covered clearing agency with respect to 
those positions and effectively protect such positions and related 
collateral from the default or insolvency of that participant.

[[Page 550]]

The amendments are designed to enhance procedures for segregation and 
portability of positions and margin of indirect clients of customers of 
clearing members, in line with the requirements of MiFID II. The 
amendments for FCM/BD Clearing Members are also consistent with the 
requirements of U.S. law as to segregation and portability. As a 
result, the amendments comply with Rule 17Ad-22(e)(14).
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    \26\ 17 CFR 240.17Ad-22(e)(14).
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    Rule 17Ad-22(e)(10) \27\ requires that a registered clearing agency 
establish, implement, maintain and enforce written policies and 
procedures reasonably designed to establish and maintain transparent 
written standards that state its obligations with respect to the 
delivery of physical instruments, and establish and maintain 
operational practices that identify, monitor, and manage the risks 
associated with such physical deliveries. The proposed amendments add 
certain provisions relating to delivery of emission allowances, 
including Rules that address the finality of such obligations under 
relevant legislation. Such changes are, in ICE Clear Europe's view, 
consistent with the Rule.
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    \27\ 17 CFR 240.17Ad-22(e)(10).
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(B) Clearing Agency's Statement on Burden on Competition

    ICE Clear Europe does not believe the proposed amendments would 
have any impact, or impose any burden, on competition not necessary or 
appropriate in furtherance of the purposes of the Act. The amendments 
are being adopted to comply with European regulatory changes. Although 
use of the indirect clearing accounts may impose certain additional 
costs on clearing members, these result from the requirements imposed 
by MiFID II and related regulations. Moreover, the amendments would 
apply to all Non-FCM/BD Clearing Members in the same way, and similarly 
to all FCM/BD Clearing Members in the same way (taking into account the 
differences in legal regime between those two types of clearing 
members). As a result, ICE Clear Europe does not believe the amendments 
would adversely affect competition among clearing members, the market 
for clearing services generally or access to clearing in cleared 
products by clearing members or other market participants.

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

    Written comments relating to the proposed amendments have been 
solicited by ICE Clear Europe through a public consultation pursuant to 
Circular C17/129, dated 8 November 2017. ICE Clear Europe will notify 
the Commission of any comments received with respect to the proposed 
amendments.

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change, security-based swap submission or advance notice is consistent 
with the Act. Comments may be submitted by any of the following 
methods:

Electronic Comments

    <bullet> Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml) or
    <bullet> Send an email to <a href="/cdn-cgi/l/email-protection#b4c6c1d8d199d7dbd9d9d1dac0c7f4c7d1d79ad3dbc2"><span class="__cf_email__" data-cfemail="2a585f464f07494547474f445e596a594f49044d455c">[email protected]</span></a>. Please include 
File Number SR-ICEEU-2017-014 on the subject line.

Paper Comments

    <bullet> Send paper comments in triplicate to Secretary, Securities 
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-ICEEU-2017-014. 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, security-based 
swap submission or advance notice 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-2017-014 and should be 
submitted on or before January 25, 2018.

IV. Commission's Findings and Order Granting Accelerated Approval of 
the Proposed Rule Change

    Section 19(b)(2)(C) of the Act directs the Commission to approve a 
proposed rule change of a self-regulatory organization if it finds that 
such proposed rule change is consistent with the requirements of the 
Act and the rules and regulations thereunder applicable to such 
organization.\28\ Section 17A(b)(3)(F) of the Act 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, in general, to protect investors and the public interest.\29\ Rule 
17Ad-22(e)(1) requires that each covered clearing agency establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to provide for a well-founded, clear, transparent, 
and enforceable legal basis for each aspect of its activities in all 
relevant jurisdictions.\30\ For the reasons discussed below, the 
Commission finds that the proposed rule change is consistent with 
Section 17A of the Act and Rule 17Ad-22(e) thereunder.
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    \28\ 15 U.S.C. 78s(b)(2)(C).
    \29\ 15 U.S.C. 78q-1(b)(3)(F).
    \30\ 17 CFR 240.17Ad-22(e)(1).
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a. Indirect Clearing

    The Commission finds that the portions of the proposed rule change 
that seek to implement the Indirect Clearing requirements are 
consistent with the provisions of Rule 17Ad-22(e)(1). The Commission 
understands that, pursuant to MiFID II requirements,\31\ ICE Clear 
Europe must open and maintain new forms of customer accounts for their 
clearing members, which are to be used to hold assets and positions of 
indirect clients of direct customers of clearing members in standard 
omnibus indirect accounts and gross omnibus indirect accounts, as 
described above. The Commission also understands that the proposed 
changes to ICEEU's Rules and Clearing Procedures also make certain 
allowances for FCM/BD Clearing Members in light of particular 
requirements of U.S. law, as described in detail above. In particular, 
the Commission notes that ICE Clear Europe

[[Page 551]]

has represented that notwithstanding the creation of standard omnibus 
indirect accounts for FCM/BD Clearing Members that will be made 
available as position-keeping subaccounts of the existing customer 
accounts, the Swap Customer Account is not currently available for use 
by FCM/BD Clearing Members for customer positions in CDS Contracts 
(including CDS Contracts that are security-based swaps).\32\ The 
Commission relies on these particular representations and explanations 
by ICE Clear Europe. Consequently, the Commission believes that the 
proposed rule changes regarding Indirect Clearing facilitate ICE Clear 
Europe's ability to comply with regulatory requirements in the 
jurisdictions in which it operates, and help ensure that ICE Clear 
Europe's policies and procedures provide for a well-founded, clear, 
transparent, and enforceable legal basis for each aspect of its 
activities in all relevant jurisdictions, consistent with the 
requirements of Rule 17Ad-22(e)(1).\33\
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    \31\ As defined in note 10, supra.
    \32\ See supra note 16.
    \33\ 17 CFR 240.17Ad-22(e)(1).
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b. Straight-Through Processing

    The Commission understands that ICE Clear Europe is required under 
relevant provisions of MiFID II to implement certain provisions 
regarding straight-through processing. The Commission believes that the 
proposed rule changes regarding straight-through processing will better 
enable ICE Clear Europe to ensure that transactions are submitted, 
accepted, and cleared without undue delay. Therefore, the Commission 
finds that the proposed rule changes regarding straight-through 
processing promote the prompt and accurate clearance and settlement of 
securities transactions consistent with the requirements of Section 
17A(b)(3)(F) of the Act.\34\ Moreover, the Commission further finds the 
proposed rule changes regarding straight-through processing protect 
investors and the public interest, consistent with Section 17A(b)(3)(F) 
of the Act \35\ because the expeditious processing of transactions in 
cleared derivatives reduces the possibility of those transactions being 
disrupted by intervening events, such as a technological breakdown or a 
reduction in the financial condition of one of the counterparties. 
Furthermore, because the Commission believes that the proposed rule 
changes regarding straight-through process will maintain the 
consistency of ICE Clear Europe's CDS Procedures with relevant 
provisions of MiFID II, the Commission finds that such proposed changes 
will help ensure that ICE Clear Europe's policies and procedures 
provide for a well-founded, clear, transparent, and enforceable legal 
basis for each aspect of its activities in all relevant jurisdictions, 
consistent with Rule 17Ad-22(e)(1).\36\
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    \34\ 15 U.S.C. 78q-1(b)(3)(F).
    \35\ Id.
    \36\ 17 CFR 240.17Ad-22(e)(1).
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c. Other Provisions

    With respect to the proposed rule changes amending ICE Clear 
Europe's Rules to implement new definitions for ``Emission Allowance'' 
and ``Emissions Registry'', as well as certain related conforming and 
clarifying edits, and the proposed changes to the Clearing Procedures 
to rename ICE Clear Europe's ``Market Maker Programs'' as ``Liquidity 
Provider Programs'' and to rename the relevant position keeping 
accounts accordingly, the Commission believes that the proposed rule 
changes will better enable ICE Clear Europe to maintain consistency 
with the relevant provisions of MiFID II, thereby helping to ensure 
that ICE Clear Europe's policies and procedure provide for a well-
founded, clear, transparent, and enforceable legal basis for each 
aspect of its activities in all relevant jurisdictions. As a result, 
the Commission finds that such proposed rule changes are consistent 
with the requirements of Rule 17Ad-22(e)(1).\37\
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    \37\ Id.
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    In its filing, ICE Clear Europe requested that the Commission grant 
accelerated approval of the proposed rule change pursuant to Section 
19(b)(2)(C)(iii) of the Exchange Act.\38\ Under Section 
19(b)(2)(C)(iii) of the Act,\39\ the Commission may grant accelerated 
approval of a proposed rule change if the Commission finds good cause 
for doing so. ICE Clear Europe believes that accelerated approval is 
warranted because the proposed rule change is required in order to 
comply with the MiFID II requirements, which go into effect on January 
3, 2018.
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    \38\ 15 U.S.C. 78s(b)(2)(C)(iii).
    \39\ Id.
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    The Commission finds good cause, pursuant to Section 
19(b)(2)(C)(iii) of the Act, for approving the proposed rule change on 
an accelerated basis, prior to the 30th day after the date of 
publication of notice in the Federal Register, because the proposed 
rule change is required as of January 3, 2018 in order to facilitate 
ICE Clear Europe's efforts to comply with the aforementioned MiFID II 
requirements. Additionally, the Commission notes that the proposed 
changes do not impede compliance with relevant U.S. law, including 
Section 17A(b)(3)(F) of the Act.

V. Conclusion

    On the basis of the foregoing, the Commission finds that the 
proposal is consistent with the requirements of the Act and in 
particular with the requirements of Section 17A of the Act \40\ and the 
rules and regulations thereunder.
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    \40\ 15 U.S.C. 78q-1.
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    It is therefore ordered pursuant to Section 19(b)(2) of the Act 
\41\ that the proposed rule change (SR-ICEEU-2017-014) be, and hereby 
is, approved on an accelerated basis.\42\
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    \41\ 15 U.S.C. 78s(b)(2).
    \42\ In approving the proposed rule change, the Commission 
considered the proposal's impact on efficiency, competition, and 
capital formation. 15 U.S.C. 78c(f).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\43\
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    \43\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2017-28493 Filed 1-3-18; 8:45 am]
 BILLING CODE 8011-01-P


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