[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30125]


[[Page Unknown]]

[Federal Register: December 8, 1994]


SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 200 and 240

[Release No. 34-35039; File No. S7-1-92]
RIN 3235-AE20

 

Notice of Assumption or Termination of Transfer Agent Services

AGENCY: Securities and Exchange Commission.

ACTION: Final rulemaking.

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SUMMARY: Securities and Exchange Commission today is adopting new Rule 
17Ad-16 under the Securities Exchange Act of 1934 which requires a 
registered transfer agent to provide written notice to a registered 
securities depository when terminating or assuming transfer agent 
services on behalf of an issuer or when changing its name or address. 
The rule will address a continuing problem of unannounced transfer 
agent changes which affects the prompt transfer of securities 
certificates.

EFFECTIVE DATES: Section 200.30-3(a)(56) is effective on December 8, 
1994. Section 240.17Ad-16 is effective on February 6, 1995.

FOR FURTHER INFORMATION CONTACT:
Ester Saverson, Jr., Special Counsel, at 202/942-4187, Division of 
Market Regulation, Securities and Exchange Commission, 450 Fifth 
Street, NW., Washington, DC 20549.

SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission 
(``Commission'') is adopting new Rule 17Ad-16 (17 CFR 240.17Ad-16) 
under the Securities Exchange Act of 1934 (``Act''). The rule requires 
registered transfer agents to notify a registered securities depository 
of changes in the transfer agent's name or address or in the securities 
for which it performs transfer agent functions.

I. Introduction and Summary

    On January 10, 1992, the Commission published for comment proposed 
Rule 17Ad-16 pursuant to section 17A(d)(1) of the Act.\1\ Section 
17A(d)(1) of the Act provides, among other things, that no registered 
transfer agent shall engage in any activity in contravention of any 
rules and regulations that the Commission may promulgate ``as necessary 
or appropriate in the public interest, for the protection of investors, 
or otherwise in furtherance of the purposes of (the Act).\2\ Pursuant 
to that grant of authority, the Commission has adopted rules that 
establish minimum performance standards for registered transfer agents 
in connection with the timely cancellation and issuance of securities 
certificates.\3\ Those standards are designed to assure, among other 
things, that registered transfer agents expeditiously process items 
presented for transfer. The standards presuppose that securityholders 
will know, based on an examination of the certificate they intend to 
present for cancellation, the name and address of the transfer agent 
the issuer has assigned to perform transfer agent functions. As 
discussed in greater detail below, that presumption may not be valid in 
many case.
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    \1\ Securities Exchange Act Release No. 30148 (January 6, 1992), 
57 FR 1128 (hereinafter cited as Proposing Release).
    \2\ Section 17A(c)(1) of the Act requires transfer agents that 
perform transfer agent functions with respect to any security 
registered under section 12 of the Act or that would be required to 
be registered except for the exemption from registration provided by 
subsection (g)(2)(B) or (g)(2)(G) of that section to be registered 
with the Commission. Section 3(a)(25) of the Act defines transfer 
agent as any person who engages on behalf of an issuer of securities 
or on behalf of itself as an issuer of securities in (A) 
countersigning such securities upon issuance; (B) monitoring the 
issuance of such securities with a view to preventing unauthorized 
issuance (a function commonly performed by a person called a 
registrar); (C) registering the transfer of such securities; (D) 
exchanging or converting such securities; or (E) transferring record 
ownership of securities by book-keeping entry without physical 
issuance of securities certificates.
    \3\See, e.g., 17 CFR 240.14Ad-7.
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    Rule 17Ad-16 is designed to address a current and continuing 
problem of transfer delays due to unannounced transfer agent changes, 
including the change of a transfer agent for a particular issue and the 
change of the name or address of a transfer agent. The rule requires 
transfer agents to send a notice to the appropriate qualified 
registered securities depository\4\ when assuming or terminating 
transfer agent services on behalf of an issuer or when changing its 
name or address.
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    \4\The ``appropriate qualified registered securities 
depository'' is defined as the largest holder of record of all 
qualified registered securities depositories or such other qualified 
registered securities depository designated by the Commission by 
order. The Depository Trust Company, Philadelphia Depository Trust 
Company, and the Midwest Securities Trust Company currently are 
qualified registered securities depositories.
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    The Commission believes that the proposed rule will facilitate the 
prompt and accurate clearance and settlement of securities transactions 
in shorter time frames.\5\ With less time for transfer of securities 
ownership, it is critical that securities certificates be sent to the 
appropriate transfer agent in order to avoid unnecessary settlement and 
transfer delays. In addition, sending stock certificates to the 
appropriate transfer agent greatly reduces the expense of transfer of 
ownership. Finally, the Commission today issued a release soliciting 
comment on the implications of an automated environment for the direct 
registration of investors with links to the secondary market clearance 
and settlement system. In such an environment, it is important that 
changes in transfer agent assignments be communicated on a timely 
basis.
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    \5\On October 6, 1993, the Commission adopted Rule 15c6-1 which 
establishes three business days after trade date, rather than five 
business days, as the standard settlement cycle for most broker-
dealer transactions. Securities Exchange Act Release No. 33023 
(October 6, 1994), 58 FR 52891. The rule becomes effective June 7, 
1995. Securities Exchange Act Release No. 34952 (November 9, 1994), 
59 FR 59137.
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    Five commenters addressed one or more aspects of the proposed 
rule.\6\ Three commenters favored the proposed rule, all of whom 
provided additional comments on specific sections of the proposed rule. 
One commenter offered suggestions without explicitly supporting the 
proposed rule. One commenter objected to the proposed rule. The views 
of the commenters are discussed in detail below.
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    \6\See Letters from Richard B. Nesson, General Counsel and 
Senior Vice President, The Depository Trust Company (``DTC''), to 
Jonathan G. Katz, Secretary, Commission (February 12, 1992); Sarah 
A. Miller, Senior Government Relations Counsel, Trust and 
Securities, American Bankers Association (``ABA''), to Jonathan G. 
Katz, Secretary, Commission (February 10, 1992); Cecelia M. Widup, 
President, Corporate Transfer Agents Association, Inc. (``CTAA''), 
to Jonathan G. Katz, Secretary, Commission (February 4, 1992); Fred 
D. Ellis, Vice President, Mellon Financial Services (``Mellon''), to 
Jonathan G. Katz, Secretary, Commission (June 2, 1992); and Donald 
R. Hollis, Executive Vice President, First Chicago Corporation 
(``First Chicago''), to Jonathan G. Katz, Secretary, Commission 
(February 7, 1992). These comment letters are available for 
inspection and copying in the Commission's Public Reference Room, 
450 Fifth Street, NW., Washington, DC 20549. In addition, as 
required by Section 17A(d)(3)(A)(i) of the Act, the Commission, at 
least fifteen days prior to issuance of this release, consulted with 
the requested the views of the Comptroller of the Currency, the 
Board of Governors of the Federal Reserve System, and the Federal 
Deposit Insurance Corporation.
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    The Commission has modified proposed Rule 17Ad-16 to address 
certain commenter suggestions and concerns. The Commission has rejected 
some suggestions offered by commenters, as discussed below. Finally, 
for the reasons discussed in the Proposing Release and below, the 
Commission is adopting Rule 17Ad-16 as revised.

II. Basis and Purpose

    Transfer delays cause problems for registered securities 
depositories, depository participants, and their customers in the form 
of increased delays, costs, and risks. Timely securities transfer is 
necessary for the efficiency of the national system for the clearance 
and settlement of securities transactions.\7\ Transfer requests sent to 
the wrong transfer agent or to the wrong address must be returned to 
the party requesting the transfer, who then must ascertain the correct 
transfer agent or address. Even worse, in some instances a transfer 
request may not be returned to the requesting party, resulting in the 
loss of securities certificates. The rule is designed to reduce the 
number of misdirected transfer requests and the resulting delays, 
costs, and risks by requiring a transfer agent to provide the 
appropriate qualified registered securities depository advance notice 
of certain status changes.
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    \7\Rule 17Ad-2 (17 CFR 240.17Ad-2) establishes mandatory 
timeframes within which registered transfer agents must complete 
most routine transfer requests. Transfer agents that receive more 
than 500 items in a six month period must turnaround within three 
business days 90% of the routine items received each month. Routine 
items that are not turned around within three business days and non-
routine items must be turned around promptly. A registered transfer 
agent for depository-eligible securities that during the previous 
six consecutive months receives fewer than 500 items for transfer 
and fewer than 500 items for processing must turnaround 90% of the 
routine items within five business days.
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    Transfer delays cause acute problems for the three registered 
securities depositories--The Depository Trust Company (``DTC''), 
Philadelphia Depository Trust Company (``Philadep'') and the Midwest 
Securities Trust Company (``MSTC'')--that hold a large number of 
certificates for safekeeping and have a large daily volume of 
certificate transfers.\8\ These delays also affect depository 
participants (e.g., banks and broker-dealers) and their customers, 
(i.e., shareholders) in the form of increased delays, costs, and risks.
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    \8\DTC, for example, presents an average of 100,000-120,000 
certificates for transfer each business day. Supra note 1.
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    The depositories hold securities certificates in the nominee name 
is safekeeping for the benefit of participants and their customers. 
When a participant deposits securities into a depository, the 
depository usually credits the participant's account for the deposit 
and sends the certificates to the issuer's transfer agent with 
instructions to transfer the certificate into the depository's nominee 
name. Whenever transfer delays occur, the depository faces an increased 
risk of lost certificates. The depository also has increased potential 
liability because it credits participants' accounts on the day 
certificates are presented for deposit. If deposited certificates 
presented for transfer are counterfeit or reported as stolen, the 
depository would be subject to credit and market risk because it could 
not take corrective action until after the certificates have been 
resubmitted to the new transfer agent or delivered to the transfer 
agent's new address.
    The costs of unannounced transfer agent changes can be significant 
for depositories and broker-dealers. DTC estimates that it incurs costs 
of at least $200,000 each year directly related to unannounced transfer 
agent changes. Much of that cost is attributed to locating the correct 
transfer agent for the issue or the transfer agent's correct address to 
send the certificates for transfer. In addition, DTC surveyed thirteen 
of its largest broker-dealer participants that account for 52% of all 
DTC processed transfers. During 1990, those firms estimated cumulative 
costs of $573,000 for processing transfers delayed because of 
unannounced transfer agent changes. Many of the firms noted that other 
costs, such as the increased possibility of certificate losses as well 
as increased customer dissatisfaction, were not included in their 
estimates because those costs were not easily quantifiable. As 
indicated by the comments received, the proposed rule will ameliorate 
these problems with minimal financial burden to the transfer agent 
community.
    A substantial majority of the commenters expressed support for the 
proposed rule. For example, the ABA noted that the notification 
requirement is a particularly good idea in light of mergers in the 
banking industry and concluded that the proposed rule will assist in 
keeping the capital markets informed of changes affecting securities 
transfers. In addition, the CTAA commented that the notification 
requirement would be beneficial to the transfer agent community as a 
whole.
    First Chicago, the sole objecting commenter, believed that adequate 
information is available from a private vendor, Financial Information, 
Inc., in monthly reports to subscribers that, in its opinion, are 
``timely, accurate and adequate.'' First Chicago also believed that the 
information available from this vendor is superior to that which would 
be provided pursuant to Rule 17Ad-16 because under the rule information 
in the notice must be handled manually by the transfer agents and 
recipients whereas vendor-supplied information is already in machine 
readable form. The Commission understands First Chicago to suggest that 
the Commission should rely on the private sector to collect and 
disseminate timely information regarding transfer agent assignments and 
name changes. However, securities depositories need to receive notice 
in advance of the change in assignment. Monthly reports from services 
based on information collected voluntarily, in light of other commenter 
views, do not appear to solve the need for timely prior notice from all 
transfer agents.\9\
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    \9\Indeed, at least one commenter suggested that the mandatory 
notice time frame be lengthened. See Mellon letter, supra note 5.
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    First Chicago also believe the data required by the rule will be 
available from more than one securities depository and the proposed 
process does not (1) assure the integrity of the source data and the 
data exchanged between the depositories or (2) resolve data content 
differences caused by manual errors or fraudulent entries. The 
Commission does not believe that the proposed methodology embodied in 
proposed Rule 17Ad-16 is inherently flawed because of its reliance on 
written notice. The risk of manual error is roughly equivalent whether 
the information is manually entered into an electronic system by the 
transfer agent or manually written and delivered to the securities 
depositories. By requiring notice from two transfer agents--the one 
assuming the transfer functions for an issue and the one relinquishing 
those functions--the proposed rule will minimize errors and fraudulent 
information.
    First Chicago also suggested that the Commission reconsider the 
notification method set forth in the proposed Rule 17Ad-16 and examine 
other alternatives such as an Electronic Data Interchange to permit 
electronic exchange of information between all agents and depositories. 
The Commission believes that the need for timely and accurate 
information by securities depositories, depository participants, and 
their customers in a sufficient incentive for securities depositories 
to develop a secure and cost effective method to assure data integrity 
and timely communication of transfer agent changes. Moreover, the 
securities depositories already have held discussions about the 
development of a centralized data base and have agreed that DTC should 
be the central repository for transfer agent information.\10\ 
Nevertheless, if experience indicates a significant volume of notice is 
received on a regular basis, the Commission would encourage the 
depositories to consider establishing an electronic notification system 
through existing depository communications systems.
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    \10\DTC letter, supra note 5.
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III. Section by Section Analysis

A. Rule 17AD-16(a): Notice of Termination of Transfer Agent Services

    Proposed Rule 17Ad-16(a) would have required a registered transfer 
agent that ceases to perform services on behalf of an issuer to provide 
written notification of such change to all qualified registered 
securities depositories or to the appropriate qualified registered 
securities depository. As proposed, the rule required that notice be 
sent by ``secure communication'' no later than two business days after 
the effective date of such termination. As discussed below, the 
Commission is modifying the proposal to require more timely notice and 
to require that the notice be sent to the appropriate qualified 
registered securities depository.
    A number of commenters addressed this requirement, urging various 
changes or clarifications. The CTAA stated that notification by a 
termination transfer agent is unnecessary because it is duplicative of 
the notification provided by assuming transfer agents under proposed 
Rule 17Ad-16(b). The CTAA favors placing the requirement solely on the 
assuming transfer agent because it is the party with the greatest 
interest in ensuring that the change in status is recognized by the 
industry.
    As discussed above, the Commission believes that requiring notice 
from the terminating transfer agent is essential. This notice will 
serve to validate the notice sent by the assuming transfer agent and 
will serve as the only notice in those rare cases when a new transfer 
agent has not yet been selected.
    Mellon suggests, as an alternative to the proposed two business day 
notification period, that a transfer agent be required to provide this 
notification, and the notification required under proposed Rule 17Ad-
16(b), the later of (a) ten calendar days prior to the effective date 
of the change or (b) as soon as the transfer agent is aware of the 
change.''\11\ Mellon believes that the two business day notification 
period is inadequate to permit the securities depositories to react to 
the change so as to preclude the improper forwarding of transfer items 
to a transfer agent.
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    \11\Mellon letter, supra note 5.
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    The Commission agrees with Mellon that the notice by a transfer 
agent ceasing to perform transfer services for a particular issue 
should be sent to depositories in sufficient time to preclude the 
improper forwarding of transfer items to the transfer agent. Thus, the 
Commission is modifying proposed Rule 17Ad-16(a) to require a transfer 
agent to send the required notification on or before the later of ten 
calendar days prior to the termination date or the day the transfer 
agent is notified of the termination date. These modifications should 
minimize the risk of improperly forwarded transfer items without 
creating an undue burden on the transfer agent.
    The Commission also is revising the proposed rule to require that a 
transfer agent submitting the notice of termination include in such 
notice its full name, address, telephone number, and Financial Industry 
Number Standard (``FINS'') number.\12\ The rule as proposed did not 
specifically require the transfer agent submitting a termination notice 
to provide this identification. The reporting of a FINS number will 
minimize possible confusion between transfer agents that have similar 
names. This change should not result in any additional burden because 
all transfer agents are required to obtain a FINS number in order to 
participate in the Commission's Lost and Stolen Securities Program.\13\
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    \12\A FINS number is a unique five digit number used by the 
securities industry as a means of identifying financial institutions 
in automated data processing systems. Currently all registered 
clearing agencies, including DTC, the National Securities Clearing 
Corporation, and the Commission's Lost and Stolen Securities Program 
use the FINS number.
    \13\The Lost and Stolen Securities Program was established in 
1977 to deter trafficking in lost, stolen, missing, and counterfeit 
securities and to assist institutions and the public in tracking 
missing securities. Reporting institutions, including transfer 
agents, broker-dealers, and banks, are required to report lost, 
stolen, missing, or counterfeit securities and to inquire whether 
certain securities certificates in their possession have been 
reported as lost, stolen, missing, or counterfeit.
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    The Commission also is revising the proposed rule to require the 
transfer agent to send the notice to the appropriate qualified 
registered securities depository rather than to all qualified 
registered securities depositories. The Commission believes that it 
will be simpler for transfer agents to send the notice to the 
appropriate qualified registered securities depository because the 
transfer agent generally will be aware of the identity of the 
appropriate qualified registered securities depository. The Commission 
expects that DTC will seek designation as the appropriate qualified 
registered securities depository and that the Commission will act on 
that request before the effective date of the rule.
    One commenter sought clarification regarding whether the proposed 
rule applies to a registered transfer agent with respect to services 
provided for securities exempt from registration under section 12 of 
the Act. Section 17A(d)(1) of the Act grants the Commission rulemaking 
authority over all of the transfer activities of a transfer agent 
registered under section 17A(c)(1) of the Act, including securities 
exempt from section 12 of the Act. Accordingly, the Commission will 
interpret Rule 17Ad-16 to require registered transfer agents to provide 
notice of changes to securities depositories with regard to any 
``security,'' as defined in section 3(a)(10) of the Act.\14\ Thus, for 
example, a registered transfer agent assuming or ceasing responsibility 
for municipal securities or government securities would be required to 
comply with Rule 17Ad-16.\15\
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    \14\The Commission notes that the scope of Rule 17Ad-16 is not 
limited to securities that are eligible for deposit at a registered 
securities depository. This information will help assist the 
securities industry as a whole (including broker-dealers and banks) 
to locate the appropriate transfer agent. In addition, as a result 
of the move to a three business day settlement time frame for most 
securities transactions, the vast majority of securities will be 
depository eligible.
    \15\See Securities Exchange Act Release No. 17111 (September 2, 
1980), 45 FR 59840.
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B. Rule 17Ad-16(b): Notice of Assumption of Transfer Agent Services

    Proposed Rule 17Ad-16(b) would have required a registered transfer 
agent to provide written notification of any assumption of duties on 
behalf of an issuer or any change of its name or address no later than 
two business days after the effective date of the change. The 
Commission is modifying proposed Rule 17Ad-16(b) to reflect commenter 
suggestions that the two business day notification period under this 
section and under proposed Rule 17Ad-16(a) is inadequate to permit the 
securities depositories to react to the change. Thus, the Commission is 
modifying proposed Rule 17Ad-16(b) to require a transfer agent to send 
the required notification on or before the later of ten calendar days 
prior to the effective date of the change in status or the day the 
transfer agent is notified of the effective date. This modification, 
along with the similar modification in paragraph (a) of this proposal, 
should minimize the risk of improperly forwarded transfer items without 
creating an undue burden on the transfer agent.
    In the Proposing Release, the Commission invited comment as to 
whether, in the case of notification of a name or address change, the 
transfer agent should be required to include in the notice all issues 
handled and their CUSIP numbers.\16\ Of the three commenters addressing 
this issue, one did not object to the requirement,\17\ one suggested it 
might not be necessary for its operations,\18\ and one commenter 
specifically objected to the requirement.\19\ In response to these 
comments, the Commission is deleting the requirement that a transfer 
agent include in a notice of a name or an address change the issuer's 
name, the issue or issues handled, and their CUSIP number(s). The 
Commission agrees with the commenters that the reporting of each issue 
and the corresponding CUSIP numbers handled by a transfer agent is not 
necessary when the transfer agent is reporting a name or an address 
change. The Commission, however, is concerned that one of the parties 
to a merger or acquisition--the transfer agent terminating its services 
or the one assuming services as a result of the merger or acquisition--
may view the event as a name or an address change and may not file the 
appropriate information, including the CUSIP number for each issue. 
Thus, the Commission is revising paragraphs (a) and (b) to clarify the 
need for both transfer agents in the case of a merger or an acquisition 
to include in the notice the issuer's name, issuers or issues handled, 
and the CUSIP number for each issue.
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    \16\CUSIP is an acronym for the Committee on Uniform Securities 
Identification Procedures.
    \17\The ABA did not oppose the requirement, stating that 
supplying CUSIP numbers would not add significantly to the transfer 
agent's burden.
    \18\DTC stated that the inclusion of CUSIP numbers was not 
necessary because of the method DTC uses to maintain transfer agent 
data.
    \19\First Chicago opposed the requirement of supplying CUSIP 
numbers because it would add to the data capture, communication, and 
storage requirements. First Chicago also believed that the integrity 
of the data would be suspect because of the extensive manual 
handling involved. Finally, First Chicago stated that extensive 
processes would be required to reconcile differences between 
redundant data repositories.
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    The Commission is adding a requirement, corresponding to the 
modification to proposed Rule 17Ad-16(a), that the FINS number of the 
transfer agent be included in the notice. As discussed above, this 
requirement will act as a confirmation of identity without adding 
substantially to the burden of the transfer agent. The Commission also 
is modifying proposed Rule 17Ad-16(b), corresponding to the 
modification to proposed Rule 17Ad-16(a), to eliminate the option that 
the notice be sent to all qualified registered securities depositories.

C. Rule 17Ad-16(c): Delivery of Notices

    Proposed Rule 17Ad-16(c) would have provided that the notice 
required by paragraph (a) or paragraph (b) of the proposal must be 
delivered by means of a secure communication and state to which 
registered securities depositories notice is sent. Proposed Rule 17Ad-
16(c) also defined ``secure communication.''\20\ No commenter 
specifically addressed proposed Rule 17Ad-16(c). The Commission defined 
the term ``secure communication'' broadly so as to allow the 
Commission, by an interpretation or through the no-action process, to 
determine whether a form of communication not specifically enumerated 
in the rule is a form of ``secure communication.'' The Commission is 
modifying Rule 17Ad-16(c) to delete the requirement that the notice 
state to which registered securities depositories notice is sent. This 
requirement is no longer necessary because the notice will be sent only 
to the appropriate qualified registered securities depository.
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    \20\``Secure communication'' includes telegraph, overnight mail, 
facsimile, or any other form of secure communication.
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D. Rule 17Ad-16(d): Forwarding of Notices

    Proposed Rule 17Ad-16(d) requires a qualified registered securities 
depository that receives notices under paragraph (a) or paragraph (b) 
to forward copies by means of a secure communication to each registered 
securities depository and to its own participants. One commenter 
addressed this provision seeking clarification of how it might comply 
with the rule.\21\ The Commission is modifying proposed Rule 17Ad-16(d) 
in several respects.
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    \21\See DTC letter, supra note 5.
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    DTC, the only commenter to address proposed Rule 17Ad-16(d), 
requested that it be permitted to make the information contained in the 
notice available to its participants upon inquiry over DTC's 
Participant Terminal System rather than forwarding copies of the notice 
by means of ``secure communication.'' The Commission in using the term 
``secure communication'' did not intend to preclude the forwarding of 
notices in an electronic format. Although the Proposing Release 
suggested that all notices must be forwarded by the securities 
depository within 24 hours, proposed Rule 17Ad-16(d) did not contain a 
specific time period for forwarding notices. The Commission is revising 
proposed Rule 17Ad-16(d)(2) to allow a registered securities depository 
to make available the notice, or all material information from the 
notice, within 24 hours in a manner set forth in a rule of the 
depository.\22\ Because changes to depository rules must be filed with 
the Commission and published for comment, the Commission believes it is 
appropriate to determine in that context whether the method proposed to 
forward such notices is consistent with the purposes of this rule and 
the Act.
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    \22\Rules of a registered clearing agency are required to be 
filed with the Commission under section 19(b) of the Act. See 15 
U.S.C. 78s(b) (1988).
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    The reference to the recipients of notice in Rule 17Ad-16(d) has 
been revised to read ``qualified registered securities depositories'' 
rather than ``registered securities depositories.'' This revision is to 
clarify that Rule 17Ad-16 only requires notice to be sent to securities 
depositories that meet the definition of ``qualified registered 
securities depositories'' under Rule 17Ad-16(e). Finally, the 
Commission is modifying proposed Rule 17Ad-16(d) to clarify that a 
qualified registered securities depository must forward all notices 
received to its participants, rather than just notices received under 
paragraphs (a) and (b). This change is to ensure that a qualified 
registered securities depository that is not the appropriate qualified 
registered securities depository, which receives notices under 
paragraph (d), will provide its participants with copies of the 
notices. Those revisions have been incorporated in new subparagraph (1) 
of Rule 17Ad-16(d).
    Proposed Rule 17Ad-16(d) also would have imposed certain record 
keeping requirements on the qualified registered securities depository 
and on the notifying transfer agent. The substance of those 
requirements, as adopted, has not changed but the requirements are 
contained in two new subparagraphs of Rule 17Ad-16(d). The record 
keeping requirement for a qualified registered securities depository is 
contained in new subparagraph (3) of Rule 17Ad-16(d) and the record 
keeping requirement for a transfer agent is contained in new 
subparagraph (4) of Rule 17Ad-16(d).

E. Rule 17Ad-16(e): Qualified Securities Registered Depository

    Proposed Rule 17Ad-16(e) defined the term ``qualified registered 
securities depository'' as a clearing agency registered under Section 
17A of the Act that performs clearing agency functions as described in 
Section 3(a)(23)(A)(i) of the Act and that has rules and procedures 
concerning its responsibility for maintaining, updating, and providing 
appropriate access to the information it receives pursuant to 
paragraphs (a) and (b) of the Rule 17Ad-16. No commenters addressed 
proposed Rule 17 Ad-16(e). The Commission is modifying proposed Rule 
17Ad-16(e) to clarify that a qualified registered securities depository 
may receive information pursuant to paragraph (d) of Rule 17Ad-16.

F. Rule 17Ad-16(f): Appropriate Qualified Registered Securities 
Depository

    Proposed Rule 17Ad-16(f) defines the term ``appropriate qualified 
registered securities depository'' as a qualified registered securities 
depository that, as of the most recent record date, is the largest 
holder of record of all qualified registered securities depositories or 
such other qualified registered securities depository designated by the 
Commission by order. The purpose of this section is to identify the 
appropriate recipient of the transfer agent's notice under Rule 17Ad-
16(a) and Rule 17Ad-16(b). As proposed, Rule 17Ad-16(f) would not have 
permitted the Commission to designate the ``appropriate qualified 
registered securities depository.'' The Commission, in the Proposing 
Release, invited comments regarding the designation by the Commission 
of the appropriate qualified registered securities depository.
    Three commenters addressed proposed Rule 17Ad-16(f). First Chicago 
believed that the proposed rule presents no problem as drafted since 
the proper depository is generally known and, when doubt exists, the 
notice could be sent to all securities depositories. DTC and the CTAA 
recommended that DTC be designated as the appropriate qualified 
registered securities depository. DTC argued that its designation as 
the appropriate qualified registered securities depository would 
eliminate uncertainty about where notices must be sent and reduce 
unnecessary costs and administrative burdens resulting from that 
uncertainty. In addition, DTC noted that it has consulted with MSTC and 
Philadep, and both organizations have authorized DTC to advise the 
Commission of their support for this approach.
    DTC is the largest holder of record among qualified registered 
securities depositories for the vast majority of issues. At year-end 
1993, DTC held securities on behalf of its participants that equaled 
$7.5 trillion, more than 98.8% of the total market value of securities 
held by the three registered securities depositories that handle 
corporate securities.\23\
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    \23\DTC, Annual Report 1993 at 5.
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    The Commission is modifying proposed Rule 17Ad-16(f) to authorize 
the Commission to designate by order the appropriate qualified 
registered securities depository.\24\ In the absence of such 
designation, the appropriate qualified registered securities depository 
will be the qualified registered securities depository with the largest 
position as of the last record date. In addition, Rule 17Ad-16(e) 
requires a qualified registered securities depository to file a 
proposed rule change under Section 19 of the Act detailing how it 
intends to maintain, update, and provide appropriate access to the 
information it receives. As part of the rule filing, the Commission 
believes it is appropriate for a qualified registered securities 
depository to seek Commission approval to designate another to carry 
out its primary responsibilities provided that the other qualified 
registered securities depository agrees.\25\
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    \24\Concurrent with the adoption of the Rule, the Commission is 
delegating to the Director of the Division of Market Regulation 
authority to designate by order the appropriate qualified registered 
securities depository.
    \25\DTC included in its comment letter the forms that DTC will 
suggest transfer agents use to comply with the Rule. The Commission 
believes mandating such a form is unnecessary at this time.
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IV. Regulatory Flexibility Act Certification

    In the Proposing Release, the Commission noted that former Chairman 
Richard C. Breeden certified, pursuant to section 605(b) of the 
Regulatory Flexibility Act, that proposed rules, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. No comments concerning regulatory flexibility matters were 
received.

V. Burden on Competition

    As required by section 23(a) of the Act, the Commission has 
specifically considered the impact that these rules would have on 
competition. The Commission believes that the rule will not have a 
significant impact on transfer agent competition. Transfer agents only 
have to send a notice when there is a change of transfer agent 
providing services on behalf of an issuer or a name or address change. 
Even when a transfer agent is required to send notice of a change, the 
cost of compliance is insignificant. Moreover, the burden of sending 
such notices should fall mainly on larger transfer agents that have 
more issues because these agents are more likely to have changes that 
would require them to send notices under the rule. Thus, the Commission 
finds that the rules would not impose a burden on competition not 
necessary or appropriate in furtherance of the purposes of the Act and, 
in particular, section 17A of the Act.

VI. Paperwork Reduction Act Submission

    An authorization request (SF 83) for the reporting requirement was 
prepared and submitted to the Office of Management and Budget which 
approved the request without comments.

VII. Effective Date

    The Commission has determined that Sec. 200.30-3(a)(56) is a 
procedural rule related solely to the agency's organization, procedure, 
or practice. Therefore, the provisions of the Administrative Procedure 
Act (``APA'') regarding notice of proposed rulemaking, opportunities 
for public participation, and prior publication\26\ are not applicable.
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    \26\5 U.S.C. 553.
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VIII. Statutory Basis

    Pursuant to the Securities Exchange Act of 1934 and particularly 
Sections 3, 17, 17A, and 23(a) thereof, 15 U.S.C. 78c, 78q, 78q-1, and 
78w(a), the Commission amends Chapter II of Title 17 of the Code of 
Federal Regulations in the manner set forth below.

List of Subjects

17 CFR Part 200

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organizations and functions (Government 
organizations).

17 CFR Part 240

    Reporting and recordkeeping, Securities.

Text of the Amendments

PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND 
REQUESTS

    1. The authority citation for part 200, subpart A continues to read 
in part as follows:

    Athority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 79t, 77sss, 
80a-37, 80b-11, unless otherwise noted.
* * * * *
    2. Section 200.30-3 is amended by adding paragraph (a)(56) to read 
as follows:


Sec. 200.30-3  Delegation of authority to Director of Division of 
Market Regulation.

* * * * *
    (a) ***
    (56) Pursuant to Sec. 270.17Ad-16 of this chapter, to designate by 
order the appropriate qualified registered securities depository.
* * * * *

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

    1. The authority citation for Part 240 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77eee, 77ggg, 
77nnn, 77sss, 77ttt, 78c, 78d, 78i, 78j, 78l, 78m, 78n, 78o, 78p, 
78q, 78s, 78w, 78x, 78ll(d), 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-
37, 80b-3, 80b-4, and 80b-11, unless otherwise noted.
* * * * *
    2. Section 240.17Ad-16 is added to read as follows:


Sec. 270.17Ad-16  Notice of Assumption or Termination of Transfer Agent 
Services.

    (a) A registered transfer agent that ceases to perform transfer 
agent services on behalf of an issuer of securities, including a 
registered transfer agent that ceases to perform transfer agent 
services on behalf of an issuer of securities because of a merger or 
acquisition by another transfer agent, shall send written notice of 
such termination to the appropriate qualified registered securities 
depository on or before the later of ten calendar days prior to the 
effective date of such termination or the day the transfer agent is 
notified of the effective date of such termination. Such notice shall 
include the full name, address, telephone number, and Financial 
Industry Number Standard (``FINS'') number of the transfer agent 
ceasing to perform the transfer agent services for the issuer; the 
issuer's name; the issue or issues handled and their CUSIP number(s); 
and if known, the name, address, and telephone number of the transfer 
agent that thereafter will provide transfer services for the issuer. If 
no successor transfer agent is known, the notice shall include the name 
and address of a contact person at the issuer.
    (b) A registered transfer agent that changes its name or address or 
that assumes transfer agent services on behalf of an issuer of 
securities, including a transfer agent that assumes transfer agent 
services on behalf of an issuer of securities because of a merger or 
acquisition of another transfer agent, shall send written notice of 
such to the appropriate qualified registered securities depository on 
or before the later of ten calendar days prior to the effective date of 
such change in status or the day the transfer agent is notified of the 
effective date of such change in status. A notice regarding a change of 
name or address shall include the full name, address, telephone number, 
and FINS number of the transfer agent and the location where 
certificates are received for transfer. A notice regarding the 
assumption of transfer agent services on behalf of an issuer of 
securities, including assumption of transfer agent services resulting 
from the merger or acquisition of another transfer agent, shall include 
the full name, address, telephone number, and FINS number of the 
transfer agent assuming the transfer agent services for the issuer; the 
issuer's name; and the issue or issues handled and their CUSIP 
number(s).
    (c) The notice described in paragraphs (a) and (b) of this section 
shall be delivered by means of secure communication. For purposes of 
this section, secure communication shall include telegraph, overnight 
mail, facsimile, or any other form of secure communication.
    (d)(1) The appropriate qualified registered securities depository 
that receives notices pursuant to paragraphs (a) and (b) of this 
section shall deliver within 24 hours a copy of such notices to each 
qualified registered securities depository. A qualified registered 
securities depository that receives notice pursuant to this section 
shall deliver a copy of such notices to its own participants within 24 
hours.
    (2) A qualified registered securities depository may comply with 
its notice requirements under paragraph (d)(1) of this section by 
making available the notice of all material information from the notice 
within 24 hours in a manner set forth in the rules of the qualified 
registered securities depository.
    (3) A qualified registered securities depository shall maintain 
such notices for a period of not less than two years, the first six 
months in an easily accessible place. Such notice shall be made 
available to the Commission or other persons as the Commission may 
designate by order.
    (4) A registered transfer agent that provides notice pursuant to 
paragraphs (a) and (b) of this section shall maintain such notice for a 
period of not less than two years, the first six months in an easily 
accessible place.
    (e) For purposes of this section, a qualified registered securities 
depository shall mean a clearing agency registered under Section 17A of 
the Act (15 U.S.C. 78q-1) that performs clearing agency functions as 
described in Section 3(a)(23)(A)(i) of the Act (15 U.S.C. 
78c(a)(23)(A)(i)) and that has rules and procedures concerning its 
responsibility for maintaining, updating, and providing appropriate 
access to the information it receives pursuant to this section.
    (f) For purposes of this section, an appropriate qualified 
registered securities depository shall mean the qualified registered 
securities depository that the Commission so designates by order or, in 
the absence of such designation, the qualified registered securities 
depository that is the largest holder of record of all qualified 
registered securities depositories as of the most recent record date.

    Dated: December 1, 1994.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-30125 Filed 12-7-94; 8:45 am]
BILLING CODE 8010-01-P-M