[Federal Register Volume 63, Number 70 (Monday, April 13, 1998)]
[Rules and Regulations]
[Pages 17943-17947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9594]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR PART 241

[Release No. 34-39829; File No. S7-10-98]


Confirmation and Affirmation of Securities Trades; Matching

AGENCY: Securities and Exchange Commission.

ACTION: Interpretive release; request for comments.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
publishing its interpretation that a ``matching'' service that compares 
securities trade information from a broker-dealer and the broker-
dealer's customer is a clearing agency function. The Commission also is 
soliciting comment on two possible approaches for providing exemptive 
relief from full clearing agency regulation for qualified electronic 
trade confirmation (``ETC'') vendors that fall within the Commission's 
interpretation of clearing agency because they provide a matching 
service.

DATES: The interpretation contained in Section III of this release is 
effective April 13, 1998.
    Comments should be submitted on or before June 12, 1998.

ADDRESSES: Interested persons should submit comments in triplicate to 
Jonathan Katz, Secretary, Securities and Exchange Commission, 450 5th 
Street, N.W., Washington, DC 20549-6009. Comments can be submitted 
electronically at the following E-mail address: [email protected]. 
All comment letters should refer to File No. S7-10-98; this file number 
should be included on the subject line if E-mail is used. All comments 
received will be available for public inspection and copying in the 
Commission's Public Reference Room, 450 5th Street, NW, Washington, DC 
20549. Electronically submitted comment letters will be posted on the 
Commission's Internet Web site (http://www.sec.gov).

FOR FURTHER INFORMATION CONTACT: Jerry W. Carpenter, Assistant 
Director; Jeffrey Mooney, Special Counsel; or Theodore R. Lazo, 
Attorney; at 202/942-4187, Office of Risk Management and Control, 
Division of Market Regulation, Securities and Exchange Commission, 
Washington, D.C. 20549.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Recently, the New York Stock Exchange (``NYSE''), the National 
Association of Securities Dealers (``NASD''), and the Municipal 
Securities Rulemaking Board (``MSRB'') (collectively ``SROs'') filed 
proposed rule changes under Section 19(b) of the Securities Exchange 
Act of 1934 (``Exchange Act'') \1\ to amend their rules dealing with 
the post-trade processing of trades executed by their members. The 
SROs' current rules require their broker-dealer members to use the 
facilities of a securities depository \2\ for the electronic 
confirmation and affirmation of transactions where the broker-dealer 
provides delivery-versus-payment (``DVP'') or receive-versus-payment 
(``RVP'') \3\ privileges to its customer (``SRO confirmation 
rules'').\4\ As a practical matter, the SRO confirmation rules require 
broker-dealers to use The Depository Trust Company's (``DTC'') 
Institutional Delivery (``ID'') system because it is the only 
confirmation/affirmation service offered by a securities depository.\5\ 
Under the proposed amendments to the SRO confirmation rules, broker-
dealers will be permitted to use entities that are not registered 
clearing agencies for the confirmation and affirmation of RVP/DVP 
transactions as long as the entities are qualified ETC vendors as 
defined by the SRO rules. A qualified ETC vendor intermediary will only 
transmit information between the parties to a trade, and the parties 
will confirm and affirm the accuracy of the information.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ A ``securities depository'' is defined in the SRO 
confirmation rules as a clearing agency that is registered under 
Section 17A of the Exchange Act, 15 U.S.C. 78q-1.
    \3\ RVP services allow an institutional seller to require cash 
payment before delivering its securities at settlement. DVP services 
allow an institutional buyer to pay for its purchased securities 
only when the securities are delivered. Generally, bids only extend 
RVP/DVP privileges to their institutional customers.
    \4\ The confirmation rules are: MSRB Rule G-15(d)(ii); NASD Rule 
11860(a)(5); and NYSE Rule 387(a)(5). The SROs and the Commission 
have separate rules requiring customer confirmations and specifying 
their content. See, e.g., Exchange Act Rule 10b-10, NASD Rule 2230; 
NYSE Rule 409. These rules are not the subject of this proceeding.
    \5\ Previously, the Philadelphia Depository Trust Company and 
the Midwest Securities Trust Company offered confirmation/
affirmation services, but these securities depositories no longer 
provide any depository services.
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    The Commission understands that the next step in the evolution of 
post-trade processing will be the development of matching services. 
``Matching'' is the term used to describe the process by which an 
intermediary reconciles trade information from the broker-dealer and 
its customer to generate an affirmed confirmation which is then used in 
effecting settlement of the trade.
    The Commission is of the view that matching constitutes a clearing 
agency function within the meaning of the clearing agency definition 
under Section 3(a)(23) of the Exchange Act.\6\ Specifically, matching 
constitutes ``comparison of data respecting the terms of settlement of 
securities transactions.'' The Commission concludes that matching is so 
closely tied to the clearance and settlement process that it is 
different not only in degree but also different in kind from the 
current confirmation and affirmation process. The purpose of this 
release is to seek comment on the concept of providing exemptive relief 
either through registration as clearing agencies subject to reduced 
requirements or through the grant of a conditional exemption from 
registration to qualified ETC vendors that provide a matching service.
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    \6\ 15 U.S.C. 78c(a)(23).
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II. Background

A. Confirmation and Affirmation Process

    The confirmation/affirmation process refers to the transmission of 
messages among broker-dealers, institutional investors, and custodian 
banks regarding the terms of a trade executed for the institutional 
investor. Because the trades of institutional investors involve larger 
sums of money, larger amounts of securities, more parties, and more 
steps between order entry and final settlement, institutional trades 
are usually more complex than retail transactions.

[[Page 17944]]

1. Confirmation Using the ID System
    The typical components of the ``customer-side'' settlement of an 
institutional trade under the current SRO confirmation rules are 
illustrated in Figure 1.\7\

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[GRAPHIC] [TIFF OMITTED] TR13AP98.005

Figure 1

    Typically, an institutional trade will begin with the institution's 
investment manager placing an order with the broker-dealer. After the 
broker-dealer executes the trade, the broker-dealer will advise the 
institution of the execution details. This is commonly referred to as 
giving notice of execution (step 1 of Figure 1). The institution then 
advises the broker-dealer as to how the trade should be allocated among 
its accounts (step 2 of Figure 1).\8\ The broker-dealer then submits 
the trade data to DTC (step 3 of Figure 1).
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    \7\ This is a separate process from the ``street-side'' 
settlement of the trade which is carried out between the buying and 
selling broker-dealers involved in the trade.
    \8\ The current confirmation rules do not require use of any 
system or type of system for notice of execution or allocation 
instructions.
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    Next, DTC adds the transaction to the ID system's trade database, 
assigns an ID control number, and forwards an electronic confirmation 
to the institution, the broker-dealer, the institution's settlement 
agent, and other interested parties (e.g., trustees, plan 
administrators, or correspondent banks) (step 4 of Figure 1). The 
institution reviews the confirmation for accuracy. If accurate, the 
institution or its designated affirming agent affirms the trade through 
the ID system (step 5 of Figure 1). DTC then generates an affirmed 
confirmation and sends it to the broker-dealer and to the institution's 
settlement agent (step 6 of Figure 1).\9\ At this point, the trade is 
sent into DTC's settlement system (i.e., the ID system is not a 
settlement system in that no money or securities move through it) and 
must be authorized by the party obligated to deliver the securities 
(i.e., the selling party) institution or the settlement agent before 
settlement occurs (steps 7 and 8 of Figure 1). ``Quality Control'' 
involves DTC's monitoring and production of various reports for 
regulators and ID system users which show such things as when a 
confirmation was sent and the affirmation was received (step 9 of 
Figure 1).
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    \9\ In the ID system, the affirming party may be the 
institution, the institution's agent, or another party designated by 
the institution (i.e., an ``interested party'').
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2. Confirmation Using a Qualified ETC Vendor
    Under the proposed SRO rule changes, a qualified ETC vendor may be 
used for the confirmation/affirmation process. The broker-dealer 
submits trade data to the qualified ETC vendor which generates and 
sends a confirmation to the institution (steps 3 and 4 of Figure

[[Page 17945]]

1). After reviewing the confirmation, the institution sends an 
affirmation to the broker-dealer through the facilities of the 
qualified ETC vendor (step 5 of Figure 1). At some point in this 
process, the qualified ETC vendor forwards the confirmation to DTC in 
an ID system format in order that DTC can assign an ID control number 
to the trade. DTC sends the confirmation with the control number back 
to the qualified ETC vendor, and the qualified ETC vendor provides the 
control number to the broker-dealer and the institution. After receipt 
of the affirmation from the institution, the qualified ETC vendor sends 
the affirmed confirmation with the ID control number to DTC in ID 
system format. In this process, a qualified ETC vendor only transmits 
information between the parties to the trade and the parties verify the 
accuracy of the information.

B. Matching Services

    The components of customer-side settlement of an institutional 
trade through a ``matching'' system are illustrated in Figure 2.
[GRAPHIC] [TIFF OMITTED] TR13AP98.006

Figure 2

    ``Matching'' is the term that is used to describe the process 
whereby an intermediary compares the broker-dealer's trade data 
submission (step 2 of Figure 2) with the institution's allocation 
instructions (step 1 of Figure 2) to determine whether the two 
descriptions of the trade agree.\10\ If the trade data and 
institution's allocation instructions match, an affirmed confirmation 
is produced (step 3 of Figure 2). This would eliminate the separate 
steps of producing a confirmation (step 4 of Figure 1) for the 
institution to review and affirm (step 5 of Figure 1). At this point, 
the trade goes into DTC's settlement process but must be authorized by 
the delivering party agent before settlement occurs (steps 4 and 5 of 
Figure 2).\11\
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    \10\ Figure 2 illustrates a ``matching intermediary'' other than 
DTC matching the Institution's allocation instructions with the 
Executing Broker's trade data. The Commission has approved a 
proposed rule change filed by DTC that will allow DTC to provide 
matching services. Securities Exchange Act Release No. 39832 (April 
6, 1998), File No. SR-DTC-95-23. Currently, no one provides the type 
of services described in DTC's matching proposal.
    \11\ This authorization and settlement process is the same 
process for the authorization and settlement of institutional trades 
where a matching service is not used (steps 7 and 8 of Figure 1).
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III. Matching as a Clearing Agency Function

    Section 3(a)(23)(A) of the Exchange Act defines a clearing agency 
broadly as ``any person who acts as an intermediary in making payments 
or deliveries or both in connection with transactions in securities or 
who provides facilities for comparison of data respecting the terms of 
settlement of securities transactions, to reduce the number of 
settlements of securities transactions, or for the allocation of

[[Page 17946]]

securities settlement responsibilities.''\12\ Section 17A of the 
Exchange Act and Rule 17Ab2-1 thereunder require any person who engages 
in any of these functions to register with the Commission as a clearing 
agency or obtain an exemption from registration.\13\
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    \12\ 15 U.S.C. 78c(a)(23)(A).
    \13\ 15 U.S.C. 78q-1; 17 CFR 240.17Ab2-1.
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    Based on the language, purposes, and policies of Section 3(a)(23) 
and 17A, the Commission concludes that an intermediary that captures 
trade information from a buyer and a seller of securities and performs 
an independent reconciliation or matching of that information is 
providing facilities for the comparison of data within the scope of 
Exchange Act Section 3(a)(23).\14\ As a result, the intermediary is 
performing a clearing agency function. Accordingly, under this 
interpretation, only an entity that is registered as a clearing agency 
or is exempt from such registration may provide a matching service.
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    \14\ A matching service conducted by an intermediary falls 
within the literal terms of the definition of clearing agency. A 
matching service conducted by an intermediary clearly provides a 
facility in which the terms of transactions between broker-dealers 
and their institutional customers are compared to each other to 
assure that both parties agree to the terms of the trades before 
they are submitted for settlement.
    Other portions of the statute also support this interpretation. 
Section 3(a)(23)(B) of the Exchange Act, 15 U.S.C. 78c(a)(23)(B), 
specifically excludes broker-dealers (and other entities) from the 
definition of clearing agency if they would fall within the 
definition solely because they perform clearing agency functions as 
a part of their customary activities, such as brokerage. Therefore, 
in connection with its customary business as a broker-dealer, a 
broker-dealer may match trades among its own customers without 
triggering clearing agency registration. Furthermore, Section 
3(a)(23)(A) of the Exchange Act, 15 U.S.C. 78c(a)(23)(A), also 
contains another definition that includes an entity that ``otherwise 
permits or facilitates the settlement of securities transactions * * 
*.''
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    The legislative history of the Securities Acts Amendments of 1975 
(``1975 Amendments'') supports this statutory interpretation,\15\ 
including the purposes of establishing a national clearance and 
settlement system and the scope of authority granted to the Commission. 
Moreover, considering a matching service to be a clearing agency 
function is consistent with the purposes of the Exchange Act regulation 
of the clearance and settlement system. Congress viewed the clearance 
and settlement system in the early 1970s as inadequate and in the 1975 
Amendments directed the Commission to facilitate the development of an 
improved national clearance and settlement system. Congress articulated 
the goals of this national system in Section 17A of the Exchange 
Act,\16\ and gave the Commission the authority and responsibility to 
regulate, coordinate, and direct the operations of all persons involved 
in processing securities transactions toward the goal of a national 
system for the prompt and accurate clearance and settlement of 
securities transactions.\17\ Congress specifically declined to address 
the merits of any particular system or to dictate the shape a national 
clearance and settlement system should take.\18\ Instead, Congress 
recognized that ``data processing and communications techniques'' 
involved in clearance and settlement processes would continue to 
evolve.\19\ As a result, the Commission was given broad authority over 
the clearance and settlement system and wide discretion in determining 
what activities fall within the clearing agency function triggering the 
requirement to register as a clearing agency.
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    \15\ Pub. L. No. 94-29, 89 Stat. 97 (1975). The definition of 
clearing agency in Section 3(a)(23) of the Exchange Act was adopted 
as part of the 1975 Amendments.
    \16\ 15 U.S.C. 78q-1. Section 17A(a)(2) of the Exchange Act, 15 
U.S.C. 78q-1(a)(2), states that the Commission is directed: (i) to 
facilitate the establishment of a national system for the prompt and 
accurate clearance and settlement of transactions in securities, and 
(ii) to facilitate the establishment of linked or coordinated 
facilities for clearance and settlement of transactions in 
securities, securities options, contracts of sale for future 
delivery and options thereon, and commodity options.
    \17\ Id. at 232.
    \18\ Id. at 184.
    \19\ See Section 17A(a)(1)(C) of the Exchange Act, 15 U.S.C. 
78q-1(a)(1)(C); S. Rep. 75, 94th Cong., 1st Sess. 54 (1975); H. Rep. 
123, 94th Cong., 1st Sess. 44 (1975).
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    In fact, the clearance and settlement process for institutional 
trades has evolved dramatically. When the 1975 Amendments were enacted, 
the processing of institutional trades was carried out directly between 
the broker-dealer and the institution with little or no automation. The 
SROs' rules requiring the use of electronic confirmation and 
affirmation of institutional trades were adopted in response to the 
increased complexity of institutional trades and the need to automate 
the process. Today, the volume of institutional trades has grown to an 
extent that they now account for a large portion of the trading 
activity in the U.S. securities markets.\20\ Because of the increased 
volume and complexity of institutional trades, virtually all of them 
are now processed through electronic systems.
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    \20\ Using block trades (i.e., 10,000 shares or more) as a proxy 
for institutional trades, in 1996 institutional trading accounted 
for 55.9% of NYSE volume and 34.1% of Nasdaq National Market volume. 
NYSE, Fact Book for the Year 1996, p. 16 (1997); The Nasdaq Stock 
Market, Inc., 1997 Fact Book & Company Directory, p. 27 (1997).
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    Matching is inextricably intertwined with the clearance and 
settlement process. A vendor that provides a matching service will 
actively compare trade and allocation information and will issue the 
affirmed confirmation that will be used in settling the 
transaction.\21\ In addition, matching addresses two areas that the 
Commission and the securities industry view as critical to maintaining 
a sound clearance and settlement system: reducing errors and reducing 
the amount of settlement time.
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    \21\ In contrast, a vendor that provides confirmation/
affirmation services only will exchange messages between a broker-
dealer and its institutional customer. The broker-dealer and its 
institutional customer will compare the trade information contained 
in those messages, and the institution itself will issue the 
affirmed confirmation.
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    As noted above, matching combines certain steps in the confirmation 
and affirmation process and therefore can help to reduce errors. 
Effective matching also will be critical in any effort to shorten the 
settlement cycle.\22\ At the same time, matching concentrates 
processing risk in the entity that performs matching instead of 
dispersing that risk more broadly to broker-dealers and their 
institutional customers. In particular, matching eliminates a separate 
affirmation step that would allow the detection of errors that could 
delay settlement or cause the trade to fail.\23\
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    \22\ The vast majority of the comment letters that the 
Commission received regarding DTC's matching proposal supported the 
proposal. Twenty-two of the commenters specifically noted matching's 
effect on shortening the settlement cycle as a reason for their 
support.
    \23\ This is in contrast to a Qualified ETC Vendor which would 
transmit confirmations and affirmations between broker-dealers and 
their customers for their review and therefore would involve less 
concentration of risk.
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    Accordingly, the Commission believes that an entity providing 
matching would have a significant impact on the national clearance and 
settlement system. The breakdown of a matching system's ability to 
accurately compare the trade information from hundreds of institutions 
and broker-dealers involving thousands of transactions and millions of 
dollars worth of securities could result in a widespread systemic 
failure of the national clearance and settlement system.\24\ Without 
any regulatory authority over matching vendors, the Commission would 
have only limited ability to guard against

[[Page 17947]]

such failure. Congress granted the Commission broad power to establish 
a centralized system of regulation over the national clearance and 
settlement system in order to prevent such a situation from 
occurring.\25\ Given the significant role played by matching services 
and the scope of the definition, the Commission believes that some form 
of regulation is appropriate to assure the prompt and accurate 
clearance and settlement of securities.\26\
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    \24\ Based on conversations between Commission staff and DTC, 
the Commission understands that over the last five months of 1997 
the ID system received an average of 165,000 trade inputs per day. 
On the highest volume day during that period, the ID system received 
approximately 310,000 trade inputs.
    \25\ S. Rep. 75, 94th Cong., 1st Sess. 55 (1975); H. Rep. 123, 
94th Cong., 1st Sess. 78-79 (1975).
    \26\ Letter regarding Bradford National Corporation (June 1, 
1981), CCH Transfer Binder, para. 76,853.
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IV. Possible Regulatory Approaches

    Even though matching services fall within the definition of 
clearing agency, the Commission preliminarily is of the view that an 
entity that limits its clearing agency functions to providing matching 
services need not be subject to the full panoply of clearing agency 
regulation. The Commission has broad exemptive authority under Section 
17A. Section 17A(b)(1) authorizes the Commission to exempt 
(conditionally or unconditionally) any clearing agency from any 
provision of Section 17A if the Commission finds that such exemption is 
consistent with the public interest, the protection of investors, and 
the purposes of Section 17A.
    Two alternative approaches may provide an appropriate regulatory 
structure for entities providing matching facilities: limited 
registration or conditional exemption. Under either approach only those 
regulatory requirements that the Commission views as necessary and 
appropriate to achieve the goals of Section 17A would be applicable to 
an entity providing a matching facility.\27\ The limited registration 
alternative is a ``scaled back'' approach, which would register the 
matching service provider as a clearing agency while providing 
exemptions from individual clearing agency requirements. The 
conditional exemption alternative is a ``building block'' approach, 
which would exempt the entity from clearing agency registration subject 
to appropriate conditions.\28\ Under either approach, the Commission 
would publish for comment a notice of the qualified ETC vendor's 
application for limited registration or conditional exemption, 
including the proposed terms of the registration or exemption, before 
approving the application.\29\
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    \27\ Under either approach, an entity would have to meet the 
requirements to become qualified as an ETC vendor under the SRO 
rules. The requirements needed to become a qualified ETC vendor are 
necessary elements but in themselves are not sufficient for an 
entity that provides a matching function.
    \28\ Under the exemptive approach, the Commission anticipates 
that an entity seeking an exemption for matching would be required 
to: (1) provide the Commission with information on its matching 
services and notice of material changes to its matching services; 
(2) establish an electronic link to a registered clearing agency 
that provides for the settlement of its matched trades; (3) allow 
the Commission to inspect its facilities and records; and (4) make 
periodic disclosures to the Commission regarding its operations.
    Applicants requesting exemption from clearing agency 
registration are required to meet standards substantially similar to 
those required of registrants under Section 17A in order to assure 
that the fundamental goals of that section are furthered (i.e., 
safety and soundness of the national clearance and settlement 
system). See, e.g., Securities Exchange Act Release Nos. 36573 
(December 12, 1995), 60 FR 65076 (order approving application for 
exemption from clearing agency registration for the Clearing 
Corporation for Options and Securities); 38328 (February 24, 1997), 
62 FR 9225 (order approving application for exemption from clearing 
agency registration for Cedel Bank, societe anonyme; and 38589 (May 
9, 1997), 62 FR 26833 (notice of application for exemption from 
clearing agency registration by Morgan Guaranty Trust Company of New 
York, Brussels Office, as operator of the Euroclear System).
    \29\ See Section 19(a) of the Exchange Act, 15 U.S.C. 78s(a), 
and Exchange Act Rule 17Ab2-1, 17 CFR 240.17Ab2-1.
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    The Commission requests commenters' views on whether limited 
clearing agency registration or conditional exemption from clearing 
agency registration is the best alternative for regulating qualified 
ETC vendors that provide matching services. Does either or both of 
these proposed alternatives provide a prudent method to ensure the 
safety and soundness of the national system for clearance and 
settlement of securities transactions and the continued development of 
linked and coordinated clearance mechanisms subject to uniform 
standards? Generally speaking, what clearing agency requirements under 
Section 17A(b) would be necessary and appropriate for matching 
services, and which would not? Are there other alternatives by which 
the Commission could maintain oversight of matching by qualified ETC 
vendors that would ensure the safety and soundness of the national 
clearance and settlement system?

List of Subjects in 17 CFR Part 241

    Securities.

Amendment of the Code of Federal Regulations

    For the reasons set out in the preamble, Title 17 Chapter II of the 
Code of Federal Regulations is amended as set forth below:

PART 241--INTERPRETATIVE RELEASES RELATING TO THE SECURITIES 
EXCHANGE ACT OF 1934 AND GENERAL RULES AND REGULATIONS THEREUNDER

    Part 241 is amended by adding Release No. 34-39829 and the release 
date of April 6, 1998 to the list of interpretive releases.

    By the Commission.

    Dated: April 6, 1998.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 98-9594 Filed 4-10-98; 8:45 am]
BILLING CODE 8010-01-P