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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Notices
subordinated debt that is perpetual or repayable with more than one year outstanding.
The proposed rule change would amend paragraph 3.5a of the Membership Procedures to lower, from the current 50% to the proposed 25%, the portion of a Clearing Members Capital requirement that may be covered by subordinated loans before ICE Clear Europe would require a written undertaking from the Clearing Member to not repay subordinated loans without its consent. ICE Clear Europe represents that this proposed change would align the Clearing Member capital requirement more closely with Basel III
requirements, under which subordinated debt may be used, to an upper limit of 25%.33
The proposed rule change also would amend paragraph 3.5 of the Membership Procedures to remove irrevocable letters of credit as a potential method that Clearing Members or Sponsored Principals may use to satisfy capital requirements, and to add a new paragraph 3.5c to give ICE Clear Europe authority to, at its discretion, require a Clearing Member to post additional cash or collateral in addition to the normal margin requirements. ICE
Clear Europe represents that these proposed changes in capital requirements would promote greater consistency with its existing operational implementation of capital requirements for Clearing Members.34

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G. Complaint Resolution Procedures ICE Clear Europe proposes to make various clarifications and changes throughout the Complaint Resolution Procedures, including to address typographical errors and promote consistency with its Rules.
Specifically, the proposed rule change would amend paragraph 1.1 to reframe the Complaint Resolution Procedures based on ICE Clear Europes obligations as a CCP under EMIR.35 Throughout the procedures, the proposed rule change would replace references to the term Complaints Resolution Procedure with the plural term Complaint Resolution Procedures to correct a typographical error and for consistency with the term used in Rule 101.
The proposed rule change would amend paragraph 1.1 to use the defined 33 Notice,
86 FR 2961629617.
86 FR 2961629617.
35 As a result of ICE Clear Europe Circular C20/
163, this reference to EMIR is to be interpreted as including a reference to EMIR as applicable in the United Kingdom under the European Union Withdrawal Act 2018. See Exchange Act Release No. 3490746 File No. SRICEEU2020016 Dec.
21, 2020, 85 FR 85704 Dec. 29, 2020.
34 Notice,
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term Person which is defined in Rule 101 rather than person, with conforming changes throughout the Complaint Resolution Procedures. The proposed rule change also would amend paragraphs 1.1 and 1.2 to provide for an independent Commissioner, who is responsible for the investigation of complaints generally, and for the appointment of an Investigator to investigate a particular complaint. In paragraph 1.3, ICE Clear Europe proposes minor drafting updates to improve clarity.
The amended Complaint Resolution Procedures would refer where appropriate to Eligible Complaint instead of the undefined term complaint to clarify that only Eligible Complaints and not other complaints would be within the scope of the procedures. As a result, the proposed rule change would replace the defined term Complaint by the undefined term complaint to allow a distinction between complaints generally speaking and those that qualify as Eligible Complaints.
In paragraph 2.1, the proposed rule change would amend the definition of Eligible Complaints by broadening it to include complaints against any Directors, officers, employees or committees or committee members of ICE Clear Europe, which ICE Clear Europe believes is the proper scope for the Complaint Resolution Procedures.
The amendments would also clarify that Eligible Complaints may relate to the manner in which ICE Clear Europe has failed to perform applicable regulatory functions. In paragraph 2.2, ICE Clear Europe proposes minor drafting amendments to correct typographical errors and use of defined terms.
The proposed rule change would make drafting improvements in paragraph 3.6 to include investigation of the before Eligible Complaint, and in paragraph 4.1 to clarify that acknowledgment of the complaint by ICE Clear Europe must be made promptly, and in any case within 5
Business Days of receipt.
ICE Clear Europe proposes to add new paragraph 4.2, which would allow ICE
Clear Europe to refer complaints to another recognized body or authorized person if such entity is entirely or partly responsible for handling the subject matter of the complaint, such as an exchange for which ICE Clear Europe clears. To establish the process for ICE
Clear Europe to refer such a complaint, the proposed rule change would also add new paragraph 4.3. Such amendments are intended to clarify existing procedures, and avoid a situation where ICE Clear Europe would
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be forced to address a duplicative complaint or a complaint better handled by another entity. In paragraph 4.4, the proposed rule change would correct minor typographical errors.
The proposed amendments to paragraph 4.5 would clarify that the Investigator must be an individual who has no personal interest or involvement in the matter of the Eligible Complaint, and would also make typographical corrections and similar drafting improvements.
In paragraph 4.7, the proposed rule change would clarify that the Investigator would not be required to disclose any information about the Complainants identity when drafting its report of the Eligible Complaint, and also would correct minor typographical errors and update cross-references.
In paragraph 4.8 as revised, the proposed rule change would include delivery disputes and appeals in the list of potential ongoing matters that could warrant delay in the consideration of an Eligible Complaint. Amended paragraph 4.12 would include a similar change and correct certain typographical errors.
In paragraph 4.11 as revised, the proposed rule change would clarify that where ICE Clear Europe objects to the referral of a complaint to the Commissioner under specified circumstances such that ICE Clear Europe can conclude its own investigation, it must submit to the Commissioner the reasons for that determination. The proposed rule change would also update several crossreferences in paragraph 4.11.
In paragraph 4.12 as revised, the proposed rule change would expand the list of ongoing matters that would justify delay in the Commissioners consideration of an Eligible Complaint to be consistent with the list in paragraph 4.8, and also reference other processes under Part 10 of the Rules.
The proposed rule change would also amend paragraph 4.14 to make nonsubstantive drafting improvements.
In paragraph 5 as revised, the proposed rule change would clarify that the Investigator recommends, rather than takes, remedial action. The proposed rule change would amend paragraph 6.3 to add appeal process to the list of dispute resolution procedures that a Complainant cannot use if it requires the referral of any Eligible Complaint to the Commissioner pursuant to the Complaint Resolution Procedures. The proposed rule change would also delete the reference to mediation in paragraph 5 as it is no longer necessary in light of the other listed types of dispute resolution.

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