[Federal Register: June 1, 2007 (Volume 72, Number 105)]
[Notices]
[Page 30648-30652]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn07-125]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-55816; File No. SR-DTC-2006-16]
Self-Regulatory Organizations; The Depository Trust Company;
Notice of Filing of Proposed Rule Change Amending FAST and DRS Limited
Participant Requirements for Transfer Agents
May 25, 2007.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ notice is hereby given that on October 12, 2006, The
Depository Trust Company (``DTC'') filed with the Securities and
Exchange Commission (``Commission'') and on March 29, 2007, and May 3,
2007, amended the proposed rule change described in Items I, II, and
III below, which items have been prepared primarily by the DTC.\2\ The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested parties.
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\1\ 15 U.S.C. 78s(b)(1).
\2\ The exact text of the DTC's proposed rule change is set
forth in its filing, which can be found at http://www.dtc.org/impNtc/mor/index.html#2006
.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
DTC proposes to amend its rules to update, standardize, and restate
the requirements for the Fast Automated Securities Transfer Program
(``FAST''), to delineate the responsibilities of DTC and the transfer
agents with respect to the securities held by transfer agents as part
of the FAST program, and to restate the requirements for transfer
agents participating in the Direct Registration System (``DRS'').
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 DTC 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. DTC has prepared summaries, set forth in sections (A),
(B), and (C) below, of the most significant aspects of these
statements.\3\
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\3\ The Commission has modified portions of the text of the
summaries prepared by the DTC.
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(A) Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
Prior to the establishment of the FAST program, transfers of
securities to or from DTC occurred by sending securities back and forth
between DTC and transfer agents. In the case of securities being
deposited with DTC, DTC sent the certificates to the transfer agent for
registration into the name of DTC's nominee, Cede & Co., and the
transfer agent returned the reregistered certificates to DTC. In the
case of securities being withdrawn from DTC, DTC sent the certificates
registered in the name of Cede & Co. to the transfer agent for
reregistration into the name designated by the withdrawing DTC
participant, and the transfer agent returned the reregistered security
to DTC for delivery to the withdrawing participant. This process
exposed securities to risk of loss during transit between DTC and
transfer agents and resulted in the expense of making physical
deliveries of securities.
Under the FAST program, transfer agents hold FAST-eligible
securities registered in the name of Cede & Co. in the form of balance
certificates. As additional securities are deposited or withdrawn from
DTC, transfer agents adjust the denomination of the balance
certificates as appropriate and electronically confirm theses changes
with DTC. Such ``FAST agents'' are holding in custody those securities
that would otherwise be held at DTC for the benefit of DTC's
participants. As such, the FAST program reduces the movement of
certificates between DTC and the transfer agents and therefore reduces
the costs and risks associated with the creation, movement, and storing
of certificates to DTC, DTC participants, issuers, and transfer
agents.\4\
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\4\ For a description of DTC's current rules relating to FAST,
see Securities Exchange Act Release Nos. 34-13342 (March 8, 1977)
[File No. SR-DTC-76-3]; 34-14997 (July 26, 1978) [File No. SR-DTC-
78-11]; 34-21401 (October 16, 1984) [File No. SR-DTC-84-8]; 34-31941
(March 3, 1993) [SR-DTC-92-15]; and 34-46956 (December 6, 2002)
[File No. SR-DTC-2002-15].
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The FAST program has grown substantially since first being
introduced in 1975.\5\ Recent changes in the rules of the major
securities exchanges are expected to further accelerate this growth.\6\
Those exchange
[[Page 30649]]
rules require, as a listing prerequisite, that issues be eligible for
processing through DRS. Since becoming a FAST agent is a criterion for
transfer agents' eligibility for participation in DRS, DTC anticipates
significant growth in the FAST program as DRS becomes more widely used
or eventually becomes mandatory.
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\5\ DTC introduced the FAST program in 1975 with 400 issues and
10 agents. Currently, there are over 930,000 issues and
approximately 90 agents in FAST.
\6\ Securities Exchange Act Release Nos. 54289 (August 8, 2006),
71 FR 47278 (August 16, 2006) [File No. SR-NYSE-2006-29]; 54290
(August 8, 2006), 71 FR 47262 (August 16, 2006) [File No. SR-Amex-
2006-40]; 54288 (August 8, 2006), 71 FR 47276 (August 16, 2006)
[File No. SR-NASDAQ-2006-08]; 54410 (September 7, 2006), 71 FR 54316
(September 14, 2006) [File No. SR-NYSE Arca-2006-31]; 55482 (March
15, 2007), 72 FR 13544 (March 22, 2007) [File No. SR-Phlx-2006-69];
55481 (March 15, 2007), 72 FR 13544 (March 22, 2007) [File No. SR-
CHX-2006-33]; and 55480 (March 15, 2007), 72 FR 13544 (March 22,
2007) [File No. SR-BSE-2006-46].
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DRS allows investors to hold a security as the registered owner in
electronic form on the books of the issuer rather than holding
indirectly through a financial intermediary that holds the security in
``street name'' or holding through the use of a certificate. Through
the use of FAST, DRS also allows for the transfer of a DRS position
from the books of the issuer to a financial intermediary through the
facilities of DTC.\7\
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\7\ For a description of DTC's rules relating to DRS, see
Securities Exchange Act Release Nos. 34-37931 (November 7, 1996)
[File No. SR-DTC-96-15]; 34-41862 (September 10, 1999) [File No. SR-
DTC-99-16]; 34-42366 (January 28, 2000) [File No. SR-DTC-00-01]; 34-
42704 (April 19, 2000) [File No. SR-DTC-00-04]; 34-43586 (November
17, 2000) [File No. SR-DTC-00-09]; 34-44969 (August 14, 2001) [File
No. SR-DTC-2001-07]; 34-45232 (January 3, 2002) [SR-DTC-2001-18];
34-45430 (February 11, 2002) [File No. SR-DTC-2002-01]; and 34-48885
(December 5, 2003) [File No. SR-DTC-2002-17]; 34-52422 (September
14, 2005) [File No. SR-DTC-2005-11].
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(1) Proposed Amendments to DTC's FAST Requirements
Despite the FAST program's robust past growth and expected future
growth, the transfer agent eligibility requirements for FAST have not
substantially changed since the implementation of FAST and do not: (i)
Take into account the increased volume and value of securities
processed by the transfer agents, (ii) reflect the current availability
of improved technology and other safeguards which would enhance the
safety and soundness of securities held at the transfer agents in the
name of Cede & Co. on behalf of DTC participants, and (iii) require the
use of standardized audit reports to certify transfer agents' processes
and controls.
In light of the FAST program's growth, DTC has reexamined the
requirements of the FAST program with a view toward ensuring that the
assets in the custody of transfer agents, which ultimately belong to
DTC's participants and their customers, are adequately protected. As
more fully described below, DTC has identified aspects of the FAST
program's requirements that need updating, including: (i) Insurance
requirements (to take into account transaction volumes and values
conducted by transfer agents), (ii) safekeeping requirements (to
clarify and to enhance security and fire protection standards and to
take into consideration technological advances that allow for
economical security improvements), (iii) regulatory and bookkeeping
requirements (to ensure compliance with applicable laws and regulations
and utilize standardized audit reports certifying as to transfer
agents' processes and controls), and (iv) fees (to clarify transfer
agents' responsibilities). Taking these aspects into account, DTC
proposes to amend and to restate the requirements for FAST transfer
agents as set forth below in order to improve the soundness and safety
of securities assets held for DTC on behalf of DTC participants and to
provide better defined requirements as more issuers and transfer agents
participate in the immobilization and dematerialization of securities.
As a result, DTC proposes the following minimum requirements for
transfer agents participating in the FAST program.
1. Transfer agent must be registered with the Commission, except
where the transfer agent's participation in the FAST program is limited
to acting solely for municipal issues (transfer agents must provide DTC
with evidence of such), and follow all applicable rules under the
Exchange Act, as well as all other applicable federal and state laws,
rules, and regulations, applicable to transfer agents, including OFAC
regulations. In addition, the transfer agent must provide DTC with a
written notification as soon as practicable, if its regulator has taken
any regulatory action against the transfer agent with respect to an
alleged violation of such laws, rules, or regulations. Any regulatory
reports or information furnished to DTC, including that required
pursuant to this Item No. 1 and Item No. 14 below, shall be held as
confidential by DTC and will not be used for any purpose other than to
manage the risk of DTC and its Participants. All other information
furnished to DTC pursuant to the requirements set forth herein shall be
held in at least the same degree of confidence as may be required by
law or the rules and regulations of the Commission.\8\
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\8\ The Commission notes that records relating to Commission
examinations are highly confidential and are included herein only as
one part of DTC's risk management system. Review of Commission
examination records is a supplement to DTC's risk management
program.
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2. The transfer agent must execute and fulfill the requirements of
the appropriate form of Balance Certificate Agreement with DTC (in the
appropriate form).\9\
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\9\ DTC currently maintains three forms of the Balance
Certificate Agreement: one for transfer agents, one for issuers
acting as their own agent, and one for parties using a processing
agent. DTC is consolidating these forms into a single form, as
attached as Exhibit 2 to its filing.
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3. When applying for FAST status, the transfer agent must include
the name and CUSIP of a minimum of one issue it wishes to add to the
FAST program. Issues eligible for the FAST program must be: (i) Traded
on an exchange registered under Section 6 of the Exchange Act, (ii)
municipal securities, or (iii) transferred by a transfer agent that
already acts as a FAST transfer agent for at least five (5) other
issues that are traded on an exchange. The above provisions
notwithstanding, DTC reserves the complete discretion to include or
exclude any particular issue in the FAST program.
4. The transfer agent must sign and fulfill requirements of the
Operational Criteria for the FAST Transfer Agent Processing \10\ and
must comply with all applicable provisions of DTC's Operational
Arrangements (``OA'') \11\ as amended from time to time.
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\10\ The Operational Criteria for the FAST Transfer Agent
Processing is attached as Exhibit 2(b) to DTC's filing.
\11\ For more information relating to DTC's OA, see Securities
Exchange Act Release Nos. 34-45994 (May 29, 2002), 67 FR 39452 [File
No. SR-DTC-2002-02]; 34-24818 (August 19, 1987), 52 FR 31833 [File
No. DTC-87-10]; 34-25948 (July 27, 1988), 53 FR 29294 [File No. DTC-
88-13]; 34-30625 (April 23, 1992), 57 FR 18534 [File No. DTC-92-06];
34-35649 (April 26, 1995), 60 FR 21576 [File No. DTC-94-19]; and 34-
39894 (April 21, 1998), 63 FR 23310 [File No. DTC-97-23].
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5. In order to provide for the operational proficiency and
efficiency of the program, on being accepted as a FAST transfer agent,
the transfer agent must complete DTC's training on FAST functionality.
6. In order to protect against a risk of loss, the transfer agent
must carry and provide evidence of a minimum of the following Bankers
Blanket Bond Standard Form 24, or similar coverage, in proportion to
transaction volume the agent processes, as follows:
a. $10 million with a deductible of no more than $50,000 for a
transfer agent with 25,000 or fewer transfer transactions per year as
reported to the Commission.
b. $25 million with a deductible of no more than $100,000 for a
transfer agent with over 25,000 transfer transactions per year as
reported to the Commission.
[[Page 30650]]
In addition, the transfer agent must: (i) Carry a minimum of $1
million in Errors and Omissions insurance with a deductible of no more
than $25,000 and must show evidence of the policy on applying for FAST
status and (ii) have a ``mail'' insurance policy of $10 million or more
and show evidence of the policy on applying for FAST status. The Errors
and Omissions coverage shall identify DTC as an additional insured. The
``mail'' coverage shall identify DTC as a loss payee but shall not be
invalidated by any act or neglect of the insured.
In the event that a transfer agent can demonstrate that its
existing coverage and/or capitalization would provide similar
protections to DTC as the requirements set forth herein, it may apply
to DTC for a waiver of the deductibles set out above. DTC shall have
sole discretion as to whether or not to grant any such waiver.
7. In order to facilitate consistent protection against losses
relating to securities in a transfer agent's control, the transfer
agent must notify DTC as soon as practicable of notice of any actual
lapse in insurance coverage or change in business practices, such as
increasing volumes or other business changes that would result in the
transfer agent requiring additional insurance coverage as outlined
above. Such notice shall be delivered to:
DTC, Inventory Management--1SL, 55 Water Street, New York, New York
10041.
And with a copy to:
DTC, General Counsel's Office, 55 Water Street--22nd Floor, New
York, New York 10041.
8. The transfer agent must provide proof to DTC of the new or
substitute policy for all required insurance at least 30 days prior to
any expiration or change in insurance limits of a previous insurance
policy.
9. To further facilitate Item No. 7 above, the terms of the
insurance coverage noted above must state that the insurance provider
must notify DTC within five (5) days of notice of any threatened or
actual lapse in the above coverage requirements.
10. The transfer agent must establish and maintain electronic
communications with DTC to balance FAST positions on a daily schedule.
11. The transfer agent must provide on an annual basis to DTC
within ten (10) business days of filing with the SEC an accountant's
report (pursuant to Exchange Act Rule 17Ad-13, Annual Study of
Evaluation of Internal Accounting Controls) attesting to the soundness
of controls to safeguard securities assets and reliability and
integrity of computer systems, including confidentiality of customer
account or other non-public information. To the extent that a transfer
agent obtains a SAS-70 audit report, the transfer agent shall provide
DTC with a copy of the report within ten (10) business days of the
transfer agent's receipt of the report. In addition, the transfer agent
must provide, within the same time frame as required for such report, a
report from an external certified public accountant:
a. Certifying that the transfer agent is complying with all of
DTC's requirements relating to FAST agents including and without
limitation to (a) those listed herein, (b) the Operational Criteria for
FAST Transfer Agent Processing, (c) the Operational Agreement and (d)
the Balance Certificate Agreement;
b. certifying that the agent meets any SEC requirements for
business continuity planning; and
c. containing an SSAE 10 report (or the equivalent) attesting to
the soundness of the transfer agent's control in meeting the
requirements set forth herein; however an SSAE-10 need not be provided
if the transfer agent has provided a SAS-70 audit report in accordance
with the provisions of this paragraph 11.
12. FAST agents must safeguard all the securities assets as stated
under SEC Rule 17Ad-12 and with at least the following additional DTC
requirements:
a. Maintaining a theft and fireproof safe of no less than 350
pounds with a minimum anti-theft test rating of UL 687 and a minimum
fire rating of UL 72;
b. maintaining a theft and fire central monitoring alarm system
protecting the entire premises;
c. all certificates will be maintained in a secure location,
accessible only by authorized personnel; and
d. certificates shall not be left unattended unless stored in a
secure location or a ``locked'' safe.
13. Personnel with access to the safe and the codes for the
centralized monitoring system will be governed by the Commission's Rule
17f-2, which includes but is not limited to rules for fingerprinting
staff that physically handle certificates.
14. The transfer agent upon application must provide DTC with a
copy of the two most recent Commission examination reports as well as
any follow-up correspondence. In addition, the transfer agent on an
ongoing basis must provide DTC with notice of any alleged material
deficiencies documented by the Commission within 5 business days of the
transfer agent being notified of such material deficiencies.
15. During regular business hours upon advance notice, DTC reserves
the right to visit and inspect to the extent pertaining to their
position the transfer agent's facilities, books, and records but is not
obligated to do so.
16. The transfer agent may only charge DTC fees (i.e., deposit,
withdrawal, ``rush,'' cancellation, registration, or other transfer
fees) that: (a) Are contractually agreed to by the issuer, (b) are the
same for all other registered holders, and (c) do not violate the
regulations of the relevant securities exchange relating to transfer
agent fees.
17. Existing FAST agents shall have a period of six (6) months from
the date of the Commission's approval of this rule filing within which
they must comply with these requirements, including the submission to
DTC of a signed Balance Certificate Agreement, signed Operational
Criteria, and all supporting documentation referenced herein. If an
agent is not compliant with these requirements upon the expiration of
such period, DTC shall have the right, using sole discretion, to
terminate or to continue the agent's FAST status.
18. An agent acting on behalf of a transfer agent or an issuer
acting on its own behalf shall have the same rights and
responsibilities under these requirements as if it were the transfer
agent.
(2) Proposed Amended and Restated Eligibility Requirements for DRS
Limited Participants
DTC is proposing the following restatement of the eligibility
requirements for DRS Limited Participants \12\ and the DRS eligibility
requirements for DRS issues to promote consistency with the FAST
program requirements as well as to further ensure the soundness of the
DRS system as follows. In order to be eligible to be a DRS Limited
Participant, a transfer agent must:
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\12\ DRS Limited Participants are transfer agents that
participate in DRS through DTC. They are bound to certain provisions
of the DTC rules. Securities Exchange Act Release No. 34-37931
(November 7, 1996) [File No. SR-DTC-96-15].
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1. Participate in the FAST program and abide by the rules outlined
in the FAST requirements above.
2. Execute a DTC Limited Participant Account agreement.
3. Deliver transaction advices directly to investors relating to
DRS Withdrawal-by-Transfer requests and provide DTC with a file (in a
format and using functionality as specified by DTC from time to time)
containing the transaction advice delivery date.
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4. Complete DTC's program on training of DRS and Profile
Modification System (``Profile'') functionality.
5. Participate in the Profile surety or insurance programs to
initiate Profile transactions.\13\
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\13\ In DRS, instructions to transfer shares are sent by a
broker-dealer that is a DTC participant or by a transfer agent that
is a DRS Limited Participant through Profile. Profile provides
screen based indemnification against false instructions from the
party submitting the instructions through DRS. The indemnity is
supported by either a surety bond or an insurance policy.
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6. Implement program changes related to DTC systems modifications
within a reasonable time upon receiving notification from DTC of such
modifications.
7. Implement program changes to support and expand DRS processing
capabilities as agreed to by the DRS Ad Hoc Committee.
8. Mail a transfer advice or statement to shareholders within three
(3) business days of each DRS account transaction that affects the
shareholder's position or more often as required by the Commission's
regulations.
Existing DRS Limited Participants shall have a period of six (6)
months from the date of the Commission's approval of this rule filing
within which they must comply with these requirements. If an agent is
not compliant with these requirements upon the expiration of such
period, DTC shall have the right using its sole discretion to terminate
or to continue the agent's status as a DRS Limited Participant.
(3) Eligibility Requirements for DRS Issues
In order for an issue to be eligible as a DRS issue, the following
eligibility requirements must be met:
1. The issue must be transferred by a transfer agent accepted as a
DTC DRS Limited Participant.
2. The issue must be included in the FAST program and may not be
added to DRS if ``out of balance'' positions exist.
3. The issuer or transfer agent for the issue must mail a
transaction advice or statement within three (3) business days of each
DRS account transaction that affects the shareholders position or more
often as required by Commission regulations.
(4) DTC's Proposed Standard of Care Obligations With Respect to FAST
DTC is proposing to establish a clearer demarcation of
responsibility and liability with respect to the FAST program.
Historically, DTC believes the Commission has left to user-governed
clearing agencies the question of how to allocate losses associated
with, among other things, clearing agency functions.\14\ In conjunction
with its approval of these standards, the Commission noted that while
it had ``called on registered clearing agencies to undertake, by rule,
to deliver all fully-paid securities in their control to, or as
directed by, the participant for whom the securities are held,'' given
that registered clearing agencies had demonstrated a high level of
responsibility in safeguarding securities and funds, a standard of care
based on a strict standard of liability was not required either with
respect to failures of the clearing agency or a sub-custodian. DTC
notes that securities in the FAST program are held by a transfer agent
and are not within the immediate custody and control of DTC. As such,
after a transfer agent is accepted to the FAST program, DTC is
proposing the addition of a clarifying provision to Rule 6 to state
that DTC will not be liable for the acts or omissions of FAST Agents or
other third parties, unless caused directly by DTC's gross negligence,
willful misconduct, or violation of federal securities laws for which
there is a private right of action. In addition, DTC proposes that
under no circumstance shall DTC be liable for selecting or accepting
any third party as an agent of DTC, including a transfer agent
participating in the FAST Program.
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\14\ Securities Exchange Act Release Nos. 34-20221 (September
23, 1983) and 34-22940 (February 24, 1986). In this regard, DTC
adopted a uniform standard with respect to certain of its
procedures, or Service Guides, such that DTC is not liable for any
loss incurred by a participant other than one caused directly by
gross negligence or willful misconduct on the part of DTC. See
Securities Exchange Act Release No. 34-44719 (August 17, 2001) [File
No. SR-DTC-2001-01].
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DTC believes the proposed rule change is consistent with the
requirements of Section 17A of the Act, as amended,\15\ and the rules
and regulations thereunder because it improves standards relating to
the eligibility of transfer agents and issues for its FAST and DRS
programs. As such, it assures the safeguarding of securities and funds
which are in the custody or control of DTC or for which it is
responsible.
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\15\ 15 U.S.C. 78q-s.
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(B) Self-Regulatory Organization's Statement on Burden on Competition
DTC does not believe that the proposed rule change will impose any
burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The Commission requests
comments as to whether the rule change will effect competition.
(C) Self-Regulatory Organization's Statement on Comments on the
Proposed Rule Change Received From Members, Participants, or Others
DTC has neither solicited nor received written comments on the
proposed rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within thirty-five days of the date of publication of this notice
in the Federal Register or within such longer period: (i) As the
Commission may designate up to ninety days of such date if it finds
such longer period to be appropriate and publishes its reasons for so
finding or (ii) as to which the self-regulatory organization consents,
the Commission will:
(A) By order approve such proposed rule change or
(B) institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
) or Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-DTC-2006-16 in the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-DTC-2006-16. This file
number should be included on the subject line if e-mail 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 Web site (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
[[Page 30652]]
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 inspection and copying in the Commission's Public
Reference Section, 100 F Street, NE., Washington, DC 20549. Copies of
such filings also will be available for inspection and copying at the
principal office of the DTC and on the DTC's Web site, http://www.dtcc.com.
All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-DTC-
2006-16 and should be submitted on or before June 22, 2007.
For the Commission by the Division of Market Regulation,
pursuant to delegated authority.\16\
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\16\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-10553 Filed 5-31-07; 8:45 am]
BILLING CODE 8010-01-P