[Federal Register Volume 63, Number 133 (Monday, July 13, 1998)]
[Rules and Regulations]
[Pages 37688-37708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18296]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 240

[Release No. 34-40163; File No. S7-8-98]
RIN 3235-AH42


Year 2000 Readiness Reports To Be Made by Certain Transfer Agents

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
adopting Rule 17Ad-18 under the Securities Exchange Act of 1934 
(``Exchange Act'') to require certain transfer agents to file with the 
Commission two reports regarding their Year 2000 compliance. The 
reports will increase transfer agent awareness of the specific steps 
they should be taking to prepare for the Year 2000; help coordinate 
industry testing and contingency planning; supplement the Commission's 
examination module for Year 2000 issues and identify potential Year 
2000 compliance problems; and provide information regarding the 
securities industry's preparedness for the Year 2000. The reports are 
designed to be available to the public, which will enable issuers and 
other parties to assess the risks of doing business with a transfer 
agent that may not be Year 2000 compliant.

EFFECTIVE DATE: August 12, 1998.

FOR FURTHER INFORMATION CONTACT: Jerry W. Carpenter, Assistant 
Director, 202/942-4187; Thomas C. Etter, Jr., Special Counsel, 202/942-
0178; or Jeffrey Mooney, Special Counsel, 202/942-4174, Division of 
Market Regulation, Securities and Exchange Commission, 450 Fifth 
Street, NW., Mail Stop 10-1, Washington, DC 20549.

SUPPLEMENTARY INFORMATION:

I. Introduction

    At midnight on December 31, 1999, unless the proper modifications 
have been made, the program logic in many of the vast majority of the 
world's computer systems will start to produce erroneous results 
because, among other things, the systems will incorrectly read the date 
``01/01/00'' as being January 1 of the year 1900 or another incorrect 
date. In addition, systems may fail to detect that the Year 2000 is a 
leap year. Problems also can arise earlier than January 1, 2000, as 
dates in the next millennium are entered into non-Year 2000 compliant 
programs. Year 2000 Problems could have negative repercussions 
throughout the world's financial systems because of the extensive 
interrelationship and information sharing between U.S. and foreign 
financial firms and markets.\1\
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    \1\ International Organization of Securities Commissions, 
Statement of the IOSCO Technical Committee on Year 2000 (1997), 
available at http://www.iosco.org.
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    The Commission views the Year 2000 problem as an extremely serious 
issue. A failure to assess properly the extent of the problem, 
remediate systems that are not Year 2000 compliant, and then test those 
systems could endanger the nation's capital markets and place at risk 
the assets of millions of investors. In light of this, both transfer 
agents and the Commission are working hard to address the industry's 
Year 2000 Problems.
    As part of its ongoing efforts relating to the Year 2000 on March 
5, 1998, the Commission requested comment on proposed Rule 17Ad-18 that 
would require transfer agents to file at least one report with the 
Commission regarding its Year 2000 compliance.\2\ The proposed rule 
noted that transfer agents present special considerations for the 
Commission because unlike other entities regulated under the Exchange 
Act transfer agents have no self-regulatory organization (``SRO'') to 
assist them and the Commission in addressing Year 2000 issues.\3\ 
Therefore, the Commission's only information from non-bank transfer 
agents is directly from the transfer agent themselves.
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    \2\ Release No. 34-39726, (March 5, 1998), 63 FR 12062 (March 
12, 1998).
    \3\ SRO is defined in Section 3(a)(26) of the Exchange Act, 15 
U.S.C. 78c(a)(26).
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    The Commission received 26 comment letters in response to the 
proposed rule.\4\ The majority of the

[[Page 37689]]

commenters generally supported the spirit of the Commission's proposed 
rule with some commenters making suggestions on how they believed one 
or more aspects of the proposed rule could be improved. However, the 
majority of commenters objected to the requirement for an independent 
accountant's report and objected to the Year 2000 reports submitted by 
the transfer agents and related accountant's report being made 
available to the public. Based on the comments received, the Commission 
is adopting the proposed rule with changes discussed below.
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    \4\ All comment letters and a summary of the comments are 
available in File No. S7-8-98 at the Commission's Public Reference 
Room, 450 Fifth Street, NW., Washington, DC 20549. The comment 
period closed on April 27, 1998. See also Release No. 34-39859; 
(April 14, 1998), 63 FR 19430 (extending the comment period from 
April 13, 1998, to April 27, 1998).
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II. Description of the Proposed Rule

    The Commission proposed Rule 17Ad-18 to require non-bank transfer 
agents to file at least one report with the Commission regarding their 
Year 2000 compliance. Under the proposed rule, a non-bank transfer 
agent was a transfer agent whose appropriate regulatory agency 
(``ARA'') was the Commission.\5\ Transfer agents that were also banks 
and whose ARA was one of the federal banking agencies would have been 
exempt from the proposed rule. The initial report would have been due 
no later than 45 days after the Commission adopted the rule. Non-bank 
transfer agents that did not qualify for an exemption under existing 
Rule 17Ad-13(d) would have been required to submit follow-up reports to 
the Commission on August 31, 1998, and August 31, 1999.\6\ The follow-
up reports also would have included an attestation by an independent 
public accountant as to whether there was a reasonable basis for the 
non-bank transfer agent's assertions in the reports.
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    \5\ ARA is defined in Section 3(a)(34)(B) of the Exchange Act, 
15 U.S.C. 78c(a)(34)(B). Transfer agents that are also banks have 
either the Board of Governors of the Federal Reserve System, the 
Office of the Comptroller of the Currency, or the Federal Deposit 
Insurance Corporation as their ARA. Approximately 1,360 transfer 
agents are registered with the Commission, and the Commission is the 
ARA for approximately 740 of them.
    \6\ 17 CFR 240.17Ad-13(d). Generally, the Rule 17Ad-13(d) 
exemption applies to issuer transfer agents, small transfer agents 
exempt under Rule 17Ad-4(b), and bank transfer agents.
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    As noted in the proposed rule, the Commission has advised all 
transfer agents that if a transfer agent's computer systems have Year 
2000 Problems, the transfer agent's record may be inaccurate or not 
current and therefore be in violation of Rules 17Ad-6 and 17Ad-7 under 
the Exchange Act.\7\
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    \7\ 17 CFR 240.17Ad-6 and 17Ad.7.
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III. Discussion of Significant Issues

A. Reporting Threshold

    The Office of Thrift Supervision (``OTS'') requested that the 
Commission extend the exemption in the proposed rule for bank transfer 
agents to include savings associations regulated by the OTS. The OTS 
stated that savings associations, unlike other non-bank transfer 
agents, are subject to comprehensive examinations by a Federal banking 
agency, using the same uniform examination standards developed under 
the oversight of the Federal Financial Institutions Examination 
Council. The OTS also noted that it is subject to similar Congressional 
oversight on Year 2000 issues as the Commission and the other Federal 
bank regulatory agencies. The OTS believes that it would be duplicative 
and inconsistent to require savings associations to file the reports 
with the Commission exempting banks from the requirement.
    The Commission agrees with the OTS. Accordingly, the rule as 
adopted excludes from its reporting requirements transfer agents that 
are savings associations regulated by the OTS. Therefore the term 
``non-bank transfer agent'' used in the rule and in the remainder of 
this release means a transfer agent whose: (i) Appropriate regulatory 
agency, as that term is defined by 15 U.S.C. 78(c)(34)(B), is the 
Commission; but (ii) is not a savings association, as defined in 
Section 3 of the Federal Deposit Insurance Act, 12 U.S.C. 1813, which 
is regulated by the OTS. Because the Commission will continue to be the 
ARA for these non-bank transfer agents, the Commission will continue to 
consult with the OTS about the results of their examinations.

B. Attestation Requirement

    The proposed rule would have required transfer agents that did not 
qualify for an exemption under existing Rule 17Ad-13(d) to make 
assertions about their efforts to address Year 2000 problems and to 
engage an independent public accountant to attest to their 
assertions.\8\ As proposed, each non-bank transfer agent would have 
been required to assert:
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    \8\ The attestation report would have only been required to be 
filed with the follow-up reports.
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    (1) Whether it has developed written plans for preparing and 
testing its computer systems for potential Year 2000 Problems;
    (2) Whether the board of directors, or similar body, has approved 
these plans, and whether a member of the non-bank transfer agent's 
board of directors, or similar body, is responsible for executing the 
plans;
    (3) Whether its Year 2000 remediation plans address all domestic 
and international operations, including the activities of its 
subsidiaries, affiliates, and divisions;
    (4) Whether it has assigned existing employees, hired new 
employees, or engaged third parties to execute its Year 2000 
remediation plans; and
    (5) Whether it has conducted internal and external testing of its 
Year 2000 solutions and whether the results of those tests indicate 
that the non-bank transfer agent has modified its software to correct 
Year 2000 problems.
    The American Institute of Certified Public Accountants (``AICPA'') 
commented that the required attestation report would be difficult for 
independent public accountants to provide.\9\ The AICPA explained that 
some of the required assertions are not appropriate for accountant 
attestation because the assertions are not capable of reasonably 
consistent measurement against established criteria. Currently, there 
are no established criteria related to Year 2000 remediation efforts. 
The lack of established criteria would likely result in significant 
variation in the examination procedures performed by independent public 
accountants and thus reduce the usefulness of the attestation reports. 
In addition, the AICPA expressed concern that the purpose and 
conclusions of the attestation report could be misunderstood. The AICPA 
was primarily concerned that uninformed users of the attestation 
reports would place undue reliance on them.
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    \9\ Letter from Alan W. Anderson, Senior Vice-President, 
Technical Services and Deborah D. Lambert, Chair, Auditing Standards 
Board, AICPA (April 13, 1998).
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    The AICPA suggested that an ``agreed-upon procedures'' engagement, 
instead of an attestation engagement, would more effectively meet the 
Commission's goals. Pursuant to such an engagement, non-bank transfer 
agents would engage independent public accountants to perform and to 
report on specific procedures designed to meet the Commissions 
objectives. This would eliminate the variability of examination 
procedures performed by independent public accountants and thus 
increase the consistency of the reports the Commission would receive. 
The AICPA's letter outlined elements of an agreed upon procedures 
report and offered to follow-up with the Commission staff regarding the 
development of specific procedures for a Year 2000 engagement.

[[Page 37690]]

    The Commission is deferring consideration of whether to adopt a 
requirement that the second report be evaluated by an independent 
public accountant. The Commission, however, will consider such a 
requirement if the accounting industry recommends a standard which can 
be used by public accountants in connection with the second report.\10\
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    \10\ In light of the AICPA's comment letter and ongoing efforts, 
in a companion release also issued today the Commission is re-
opening the comment period with respect to the proposal to have an 
independent public accountant review a non-bank transfer agent's 
second Year 2000 report. The public file (No. S7-8-98) will include 
both the AICPA's original comment letter and any follow-up letter 
submitted by the AICPA for the Commission's consideration.
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C. Public Availability

    In the proposed rule, the Commission expressed its preliminary view 
that it should make publicly available non-bank transfer agent reports 
regarding their Year 2000 remediation efforts. Certain commenters 
expressed the following concerns: (i) Members of the public could place 
undue reliance on the reports, (ii) the technical nature of the reports 
may confuse investors, (iii) detailed testing reports could be 
misleading and unnecessarily alarming, and (iv) the reports could 
contain confidential proprietary information.
    However, the Commission believes that the public's interest is best 
served by requiring full and open disclosure. Allowing the public, 
particularly other non-bank transfer agents and counterparties, to have 
access to the information reported by non-bank transfer agents will 
enable interested persons to assess the Year 2000 readiness of a non-
bank transfer agent with which they are doing business. For example, 
after receiving a non-bank transfer agent's report, an issuer might 
request additional information or assurances if the non-bank transfer 
agent does not appear to be taking the steps necessary to be Year 2000 
compliant. In the absence of such assurances, the issuer could 
determine whether it wishes to continue its dealings with that non-bank 
transfer agent. Accordingly, the final rule provides that these reports 
will be available to the public.

D. Timing

    Under the proposed rule, the initial report would have evaluated 
the efforts of non-bank transfer agents as of December 31, 1997, and 
would have been required to be filed no later than 45 days after the 
Commission adopted the proposed rule. The follow-up reports would have 
evaluated non-bank transfer agent efforts as of June 30, 1998 and June 
30, 1999, and would have been due August 31, 1998, and August 31, 1999, 
respectively.
    Some commenters expressed concerns about making reports based on 
old data. These commenters explained that non-bank transfer agents 
might not have retained the information needed to prepare the reports 
and would require non-bank transfer agents to provide data that was 
outdated and misleading.
    In light of these concerns, the rule adopted today by the 
Commission requires non-bank transfer agents to file the initial report 
with the Commission by August 31, 1998. This report should reflect the 
status of the non-bank transfer agent's Year 2000 efforts as of July 
15, 1998. The rule requires transfer agents to submit only one follow-
up report, which must be filed with the Commission by April 30, 1999, 
and should reflect the status of the transfer agent's Year 2000 efforts 
as of March 15, 1999.
    The rule adopted today also requires a non-bank transfer agent 
whose registration with the Commission becomes effective between the 
adoption of this rule and December 31, 1999, to file Part I of Form TA-
Y2K with the Commission no later than 30 days after their registration 
becomes effective describing their Year 2000 compliance as of the date 
of their registration. New transfer agents whose registration with the 
Commission becomes effective between January 1, 1999, and April 30, 
1999, would be required to file the second report due on April 30, 
1999.

E. Reporting Requirements

    As previously discussed, the proposed rule would have required 
certain non-bank transfer agents to discuss the steps they have taken 
to address Year 2000 Problems. More specifically, non-bank transfer 
agents would have been required to (i) indicate whether their board of 
directors or similar body has approved and funded written Year 2000 
remediation plans that address all major computer systems; (ii) 
describe their Year 2000 staffing efforts and the work performed by 
Year 2000 dedicated staff;\11\ (iii) discuss their progress on each 
stage of preparation for the Year 2000;\12\ (iv) indicate if they have 
written contingency plans to deal with Year 2000 problems that may 
occur;\13\ and (v) identify what levels of management are responsible 
for Year 2000 remediation efforts.
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    \11\ This includes whether the transfer agent has assigned 
existing employees, has hired new employees, or has engaged third 
parties to provide assistance in avoiding Year 2000 Problems.
    \12\ These stages are: (i) awareness of potential Year 200 
Problems; (ii) assessment of what steps must be taken to avoid Year 
2000 Problems; (iii) implementation of the steps needed to avoid 
Year 2000 Problems; (iv) internal testing of software designed to 
avoid Year 2000 Problems; (v) integrated or industry-wide testing of 
software designed to avoid Year 200 Problems (including testing with 
other transfer agents, other financial institutions, customers, and 
vendors); and (vi) implementation of tested software that will avoid 
Year 2000 Problems.
    \13\ Contingency planning should provide for adequate 
protections to ensure the success of critical systems is interfaces 
fail or unexpected problems are experienced with operating systems 
and infrastructure software. In addition, contingency plans should 
provide for the failure of external systems that interact with the 
transfer agents' computer systems. For example, contingency plans 
should anticipate the failure of a vendor that services mission 
critical applications and should provide for the potential that a 
significant customer experiences difficulty due to Year 2000 
problems.
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    One commenter suggested certain changes to the specific reporting 
requirements to better clarify the information sought by the 
Commission. For example, the proposed rule would have required non-bank 
transfer agents to discuss the extent to which it has assigned existing 
employees, or engaged third parties in the Year 2000 effort. In 
addition, non-bank transfer agents would have been required to identify 
the levels of management involved in the Year 2000 efforts, discuss the 
specific responsibilities of these managers, and provide an estimate of 
the time they have spent on Year 2000 efforts. The commenter explained 
that these proposed requirements may be very burdensome, particularly 
for those firms that have comprehensive, complex-wide Year 2000 plans. 
Fixing Year 2000 problems may require the dedicated efforts of a 
significant number of employees and consultants. In addition, the tasks 
and responsibilities involved are detailed, extensive, and constantly 
changing.
    The Commission agrees that some modification and clarification of 
the reporting requirements is warranted. The rule adopted today 
requires non-bank transfer agents to provide a summary of the efforts 
of individuals or groups of individuals assigned to work on the Year 
2000 Problem. The non-bank transfer agent will not have to provide an 
estimate of the time that its management has spent on Year 2000 
efforts. Finally, the non-bank transfer agent must report the number 
and description of material exceptions identified during the internal 
and external testing of its software that are unresolved as of the 
report date. The Commission is leaving the determination of what 
constitutes a

[[Page 37691]]

material exception to the non-bank transfer agent's judgment.

F. Report Format

    The proposed rule would have required certain non-bank transfer 
agents to discuss, in narrative format, their efforts to address Year 
2000 Problems. The National Association of Securities Dealers 
Regulation (``NASDR'') commented that the Commission should prescribe 
an objective format, such as a check-the-box questionnaire, for non-
bank transfer agents to use when reporting on their Year 2000 efforts. 
The NASDR explained that an open narrative format might lead to great 
disparity in the nature and detail of the reports the non-bank transfer 
agents would submit. Providing an objective reporting format would 
produce consistent results, improve the accuracy and comparability of 
reports received, and reduce the time required to summarize, track, 
analyze, and report the information received.
    The Commission agrees that the checklist format suggested by the 
NASDR may be a more efficient way of collecting certain information and 
believes that prescribing such a format would decrease the burden the 
Year 2000 reporting requirements impose on non-bank transfer agents. 
However, the Commission is concerned that by limiting the reporting 
requirements to a check-the-box format, the largest, most significant 
non-bank transfer agents would not provide the Commission with 
sufficient information to effectively assess Year 2000 problems. 
Therefore, the rule as adopted requires all non-bank transfer agents to 
file with the Commission Part I of Form TA-Y2K, a check-the-box style 
report.\14\ Part I of Form TA-Y2K requires non-bank transfer agents to 
provide generally the same information as the proposed rule would have 
required to be submitted in narrative form. However, non-bank transfer 
agents that do not qualify for an exemption under Rule 17Ad-13(d) will 
be required to supplement Part I by completing Part II of Form TA-Y2K, 
which requires a narrative discussion of their efforts to address Year 
2000 Problems. Because Rule 17Ad-13(d) generally exempts small transfer 
agents or issuer transfer agents that typically handle few issues, the 
potential that these transfer agents could disrupt the clearance and 
settlement process is not as likely as larger transfer agents that 
process more issues for more issuers.
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    \14\ For a copy of Form TA-Y2K see Appendix A.
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    Copies of Form TA-Y2K are available in the Commission Public 
Reference Room located at 450 Fifth Street, NW, Washington DC 20549 or 
copies can be obtained from the Commission's internet web site at the 
following address: www.sec.gov.

IV. Costs and Benefits of the Rules and Their Effects on 
Competition, Efficiency, and Capital Formation

    Section 23(a) of the Exchange Act \15\ requires the Commission, in 
adopting rules under the Exchange Act, to consider the competitive 
effects of such rules and to not adopt a rule that would impose a 
burden on competition not necessary or appropriate in furtherance of 
the purposes of the Exchange Act. Furthermore, Section 3(f) of the 
Exchange Act \16\ provides that whenever the Commission is engaged in 
rulemaking and is required to consider or determine whether an action 
is necessary or appropriate in the public interest, the Commission also 
shall consider, in addition to the protection of investors, whether the 
action will promote efficiency, competition, and capital formation.
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    \15\ 15 U.S.C. 78W (A)(2).
    \16\ U.S.C. 78c.
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    The Commission has considered the amendments to Rule 17Ad-18 in 
light of the standards cited in Sections 3 and 23 (a)(2) of the 
Exchange Act. In the proposed rule, the Commission requested that 
commenters provide analysis and data supporting the costs and benefits 
of the proposed rule. In addition, the Commission sought comments on 
the proposed rule's effect on competition, efficiency, and capital 
formation.
    Several commenters indicated that the Commission's cost estimates 
were too low. However, no commenters provided detailed information or 
data as to the costs of the proposed rule. One commenter questioned 
whether the additional regulations and their expense will generate 
greater preparedness and compliance or whether they would be a greater 
distraction and misdirect the focus from Year 2000 preparations. 
Another commenter noted that the Division of Market Regulation has 
already requested information from each transfer agent regarding its 
Year 2000 preparations. Therefore, the commenter believed that the 
proposed rule was duplicative. Another commenter suggested that instead 
of the proposed rule the Commission should issue an interpretive 
release under Rule 17Ad-13 that provided standards for transfer agent 
Year 2000 programs.
    Two commenters believed that preparation of the reports required by 
the proposed rule was not costly or difficult. One of these commenters 
suggested that all transfer agents, regardless of size or being 
regulated by other authorities, should provide the reports required by 
the proposed rule. Three commenters suggested that the Commission also 
should require transfer agents to obtain certifications from their 
vendors. No commenter addressed the issue of whether the proposed rule 
would affect competition or regarding the proposed rule's affect on 
efficiency and capital formation.

A. Cost Benefit Analysis

    Based on comments received, the Commission has revised the proposed 
rule to lower the aggregate cost of compliance with the rule. As 
discussed above, the Commission is adopting new Form TA-Y2K, 
eliminating one of the reporting dates, and expanding the reporting 
requirement for certain non-bank transfer agents. Under the final rule, 
all non-bank transfer agents are required to file Part I of Form TA-
Y2K, a less burdensome check-the-box report, twice. The proposed rule 
required an initial report from all non-bank transfer agents and two 
follow-up reports from those non-bank transfer agents that did not 
qualify for an exemption under Rule 17Ad-13(d). Under the final rule, 
each non-bank transfer agent that does not qualify for an exemption 
under Rule 17Ad-13(d) is also required to complete Part II of Form TA-
Y2K.
    The Commission is also deferring consideration of whether to 
require non-bank transfer agents to engage accountants to examine their 
efforts to address Year 2000 Problems. The Commission is allowing non-
bank transfer agents to summarize by group the efforts of Year 2000 
dedicated individuals as opposed to requiring individual descriptions 
of their efforts. Non-bank transfer agents will not have to provide an 
estimate of the time management has spent on Year 2000 efforts. 
Finally, non-bank transfer agents are only required to report the 
number and description of unresolved material exceptions identified 
during the internal and external testing of their software.
    Based on field testing of a virtually identical form, Form BD-Y2K, 
conducted by the Office of Compliance Inspections and Examinations, the 
Commission estimates that on average a non-bank transfer agent will 
spend approximately two hours completing Part I of Form TA-Y2K 
resulting in a total cost to the industry of $296,000.\17\ This is 
based on 740 respondents

[[Page 37692]]

spending four hours at $100 per hour preparing two Part Is of Form TA-
Y2K. The Commission estimates that on average a non-bank transfer agent 
will spend 35 hours completing Part II of Form TA-Y2K resulting in a 
total cost to the industry of $1,400,000. This is based upon 200 non-
bank transfer agents spending 70 hours at $100 per hour preparing two 
Part IIs of Form TA-Y2K. Therefore, based upon the adjustments to the 
proposed rule, the Commission has revised its cost to the industry to a 
total of $1,696,000 ($296,000 + $1,400,000). It is important to note 
that the total cost estimate is not an annual cost. Non-bank transfer 
agents will only be required to prepare and file two Form TA-Y2Ks.
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    \17\ Field tests of Part I of Form BD-Y2K indicated that it 
could be completed in as little as 30 minutes. However, the 
Commission believes that it may take longer for some broker-dealers 
to complete Part I of Form BD-Y2K.
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    No commenters addressed the potential benefits of the rule and the 
Commission has not been able to quantify those benefits. However, the 
Commission believes that the benefits will outweigh the costs. The 
Commission is aware of the significant effort the securities industry 
has put forth and the progress its has made, but believes that 
significant progress still needs to be made by the securities industry 
to be ready for the Year 2000. As noted above, because transfer agents 
do not have an SRO, the only available information is from the transfer 
agents themselves.
    The Commission does not yet have comprehensive information 
regarding the readiness of the transfer agent industry for the Year 
2000. While the federal banking agencies are examining bank transfer 
agents, it is important for the Commission to obtain complete 
information from non-bank transfer agents to permit the Commission to 
assess the risks associated with non-bank transfer agents that fail to 
show adequate Year 2000 progress. Moreover, the Commission believes 
that a requirement to file Year 2000 reports should encourage non-bank 
transfer agents to proceed expeditiously with their efforts to prepare 
for the Year 2000. The Commission will use the reported information to 
obtain a more complete picture of the industry's overall Year 2000 
preparations and to identify transfer agent-specific and industry-wide 
problems. Information in the reports will help the Commission focus its 
Year 2000-related efforts for the rest of 1998 and 1999 on particular 
industry segments or non-bank transfer agents that appear to pose the 
greatest risk of non-compliance.
    In sum, the rule will enable the Commission to take a more active 
role in assessing the Year 2000 risk to the securities industry. The 
reports non-bank transfer agents will be required to file will increase 
transfer agent awareness that they should be taking specific steps now 
to prepare for the Year 2000; help coordinate industry testing and 
contingency planning; supplement the Commission's examination module 
for Year 2000 issues; provide information regarding the securities 
industry's preparedness for the Year 2000; and (iv) enable the 
Commission to identify particular compliance problems.

B. Efficiency, Competition, and Capital Formation

    In the proposing release, the Commission stated that the proposed 
rule should not unduly burden competition. No commenter addressed the 
proposed rule's effect on competition.
    The Commission believes that it has drafted Rule 17Ad-18 so as to 
minimize their impact on competition. As discussed above, the 
Commission has structured the form of the report to differentiate 
between non-bank transfer agents based upon the threat they would pose 
to customers and the market if they are not Year 2000 compliant. As 
discussed above, non-bank transfer agents that qualify for an exemption 
under Rule 17Ad-13(d) (i.e., small transfer agents and issuer transfer 
agents) are only required to file the less burdensome Year 2000 report. 
Larger non-bank transfer agents that provide services for multiple 
issuers do not qualify for an exemption and are required to provide 
additional information. The Commission believes that Rule 17Ad-18 does 
not impose any burden on competition not necessary or appropriate in 
furtherance of the Exchange Act.
    The Commission believes that the rule should increase the 
efficiency and effectiveness of the industry's efforts to prepare for 
the Year 2000 by increasing awareness, focusing industry efforts, and 
providing critical information for identifying and remedying problems. 
In addition, the Commission believes that the rule does not adversely 
affect capital formation. However, failure on the part of the 
securities industry to adequately prepare for the Year 2000 could 
adversely affect capital formation at the beginning of the next 
millennium.

V. Final Regulatory Flexibility Analysis

    A final Regulatory Flexibility Analysis (``FRFA'') concerning Rule 
17Ad-18 has been prepared in accordance with the provisions of the 
Regulatory Flexibility Act (``RFA''), as amended by Pub. L. 104-121, 
110 Stat. 847, 864 (1996), 5 U.S.C. 604. The FRFA notes that Rule 17Ad-
18 will increase transfer agent awareness of the specific steps they 
should be taking to prepare for the Year 2000; help coordinate industry 
testing and contingency planning; supplement the Commission's 
examination module for Year 2000 issues and identify potential Year 
2000 compliance problems; and provide information regarding the 
securities industry's preparedness for the Year 2000.
    The Commission received no comments on the Initial Regulatory 
Flexibility Analysis (``IRFA'') prepared in connection with the 
proposed rule, and no comment letters specifically addressed the IRFA. 
However, as discussed in paragraph III.A above, certain commenters 
expressed concern about the threshold for determining which non-bank 
transfer agents are required to report on their efforts to prepare for 
the Year 2000, and estimated costs associated with obtaining the 
independent public accountant's attestation.
    As discussed more fully in the FRFA, the rule will affect transfer 
agents that are small entities pursuant to Rule 0-10 under the Exchange 
Act.\18\ When used with reference to a transfer agent, the Commission 
has defined the term ``small entity'' to mean a transfer agent that: 
(1) received less than 500 items for transfer and less than 500 items 
for processing during the preceding six months (or in the time that it 
has been in business, if shorter); (2) maintained master shareholder 
files that in the aggregate contained less than 1,000 shareholder 
accounts or was the named transfer agent for less than 1,000 
shareholder accounts at all times during the preceding fiscal year (or 
in the time that it has been in business, if shorter); and (3) is not 
affiliated with any person (other than a natural person) that is not a 
small business or small organization under Rule 0-10. Approximately 413 
registered transfer agents qualify as ``small entities'' for purposes 
of the RFA.
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    \18\ 17 CFR 240.0-10.
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    The Commission has drafted Rule 17Ad-18 to minimize its impact on 
small transfer agents while enhancing investor protection and 
minimizing any impact on competition, in part, by adopting different 
reporting requirements to take into account the resources available to 
small non-bank transfer agents. First, small bank transfer agents are 
not required to submit any reports. Second, while the rule requires all 
non-bank transfer agents to report on their efforts to address Year 
2000 problems, the Commission has adopted two reporting formats. Small 
non-bank

[[Page 37693]]

transfer agents are only required to file a less burdensome check-the-
box style Year 2000 report. As noted in section IV.A above, the 
Commission estimates that it would take each non-bank transfer agent 
approximately four hours to complete Part I of Form TA-Y2K. The 
remaining non-bank transfer agents are required to provide, in addition 
to the check-the-box style report, a more extensive narrative 
discussion of their Year 2000 efforts. These non-bank transfer agents 
are typically larger transfer agents that process multiple issues and 
could potentially have a greater impact on the clearance and settlement 
system. Thus, by adopting different reporting requirements and by 
exempting small bank transfer agents, the Commission has imposed no 
burden, or only a very limited burden, on small transfer agents.
    The FRFA notes that it would be difficult to further simplify, 
consolidate, or adjust compliance standards for small non-bank transfer 
agents and be able to effectively monitor the securities industry's 
efforts to prepare for the Year 2000. The Commission believes that the 
alternate reporting requirement adopted today for small non-bank 
transfer agents strikes the appropriate balance between the need to 
protect investors and to minimize any impact on small non-bank transfer 
agents. The Commission also considered the use of performance rather 
than design standards. However, the Commission concluded that it would 
be inconsistent with the purpose of the rule to use performance 
standards to specify different requirements for small entities.
    A copy of the FRFA may be obtained by contacting Jeffrey Mooney, 
Special Counsel, U.S. Securities and Exchange Commission, Mail stop 10-
1, 450 Fifth Street, NW., Washington, DC 20549.

VI. Paperwork Reduction Act

    As set forth in the proposed rule, Rule 17Ad-18 contains 
collections of information within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\19\ Accordingly, the collection of 
information requirements were submitted to the Office of Management and 
Budget (``OMB'') for review and were approved by OMB which assigned the 
following control number 3235-0512.
---------------------------------------------------------------------------

    \19\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

    The proposed rule solicited comments on the proposed collections of 
information. No comments were received that specifically addressed the 
PRA submission. However, as discussed above, the Commission received 
suggestions that would improve the collections of information. Based 
upon these suggestions, the collections of information have been 
adjusted as described in section III. above. For example, the rule 
adopted today requires non-bank transfer agents to provide a summary of 
the efforts of individuals or groups of individuals assigned to work on 
the Year 2000 Problem, and the reports will not have to provide an 
estimate of the time management has spent on Year 2000 efforts, nor the 
number and nature of material exceptions identified during the internal 
and external testing of its software.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the agency displays a 
valid OMB control number. The collection of information under Rule 
17Ad-18 is necessary for non-bank transfer agents to comply with 
certain requirements and is necessary to provide the Commission with 
information on the security industry's readiness for the Year 2000. The 
information collected pursuant to Rule 17Ad-18 will be made public.
    Based upon the adjustments to the amendments, the Commission is 
adjusting its burden estimate. The Commission estimated in the proposed 
rule that, on average, a non-bank transfer agent would spend 50 hours 
preparing each of the three Year 2000 reports and obtaining the two 
independent public accountant's Attestations. The Commission estimates 
that under the final amendments, a non-bank transfer agent will, on 
average, spend two hours preparing Part I of Form TA-Y2K and 35 hours 
preparing Part II of Form TA-Y2K. The total annualized burden to the 
securities industry is estimated at 8,480 hours. This is based on 740 
respondents spending two hours preparing Part I and 200 respondents 
preparing Part II of Form TA-Y2K.

VII. Statutory Analysis

    Pursuant to the Securities Exchange Act of 1934 and particularly 
Sections 17(a) and 23(a) thereof, 15 U.S.C. 78o(c)(3) and 78w, the 
Commission is adopting amendments to Sec. 240.17Ad-18 of Title 17 of 
the Code of Federal Regulations in the manner set forth below.

List of Subjects in 17 CFR Parts 240 and 249

    Broker-dealers, Reporting and recordkeeping requirements, 
Securities.

Text of Final Rule

    In accordance with the foregoing, Title 17, chapter II, part 240 of 
the Code of Federal Regulations is amended as follows:

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, 77z-2, 77eee, 
77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78f, 78i, 78j, 78j-1, 78k, 
78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll(d), 
78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and 
80b-11, unless otherwise noted.
* * * * *
    2. By adding Sec. 240.17Ad-18 to read as follows:


Sec. 240.17Ad-18  Year 2000 Reports to be made by certain transfer 
agents.

    (a) Each registered non-bank transfer agent must file Part I of 
Form TA-Y2K (Sec. 249.619 of this chapter) with the Commission 
describing the transfer agent's preparation for Year 2000 Problems. 
Part I of Form TA-Y2K shall be filed no later than August 31, 1998, and 
April 30, 1999. Part I of Form TA-Y2K shall reflect the transfer 
agent's preparation for the Year 2000 as of July 15, 1998, and March 
15, 1999, respectively.
    (b) Each registered non-bank transfer agent, except for those 
transfer agents that qualify for the exemption in paragraph (d) of 
Sec. 240.17Ad-13, must file with the Commission Part II of Form TA-Y2K 
(Sec. 249.619 of this chapter) in addition to Part I of Form TA-Y2K. 
Part II of Form TA-Y2K report shall address the following topics:
    (1) Whether the board of directors (or similar body) of the 
transfer agent has approved and funded plans for preparing and testing 
its computer systems for Year 2000 Problems;
    (2) Whether the plans of the transfer agent exist in writing and 
address all mission critical computer systems of the transfer agent 
wherever located throughout the world;
    (3) Whether the transfer agent has assigned existing employees, has 
hired new employees, or has engaged third parties to provide assistance 
in addressing Year 2000 Problems; and if so, a description of the work 
that these groups of individuals have performed as of the date of each 
report;
    (4) The current progress on each stage of preparation for potential 
problems caused by Year 2000 Problems. These stages are:
    (i) Awareness of potential Year 2000 Problems;

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    (ii) Assessment of what steps the transfer agent must take to 
address Year 2000 Problems;
    (iii) Implementation of the steps needed to address Year 2000 
Problems;
    (iv) Internal testing of software designed to address Year 2000 
Problems, including the number and description of the material 
exceptions resulting from such testing that are unresolved as of the 
reporting date;
    (v) Point-to point or industry-wide testing of software designed to 
address Year 2000 Problems (including testing with other transfer 
agents, other financial institutions, and customers), including the 
number and description of the material exceptions resulting from such 
testing that are unresolved as of the reporting date; and
    (vi) Implementation of tested software that will address Year 2000 
Problems;
    (5) Whether the transfer agent has written contingency plans in the 
event that, after December 31, 1999, it has computer problems caused by 
Year 2000 Problems; and
    (6) What levels of the transfer agent's management are responsible 
for addressing potential problems caused by Year 2000 Problems, 
including a description of the responsibilities for each level of 
management regarding the Year 2000 Problems;
    (7) Any additional material information in both reports concerning 
its management of Year 2000 Problems that could help the Commission 
assess the transfer agent's readiness for the Year 2000.
    (8) Part II of Form TA-Y2K (Sec. 249.619 of this chapter) shall be 
filed no later than August 31, 1998, and April 30,999. Part II of Form 
TA-Y2K shall reflect the transfer agent's preparation for the Year 2000 
as of July 15, 1998, and March 15, 1999, respectively.
    (c) Any non-bank transfer agent that registers between the adoption 
of the final rule and December 31, 1999, must file with the Commission 
Part I of Form TA-Y2K (Sec. 249.619 of this chapter) no later than 30 
days after their registration becomes effective. New transfer agents 
whose registration with the Commission becomes effective between 
January 1, 1999, and April 30, 1999, would be required to file the 
second report due on April 30, 1999.
    (d) For purposes of this section, the term Year 2000 Problem shall 
include problems arising from:
    (1) Computer software incorrectly reading the date ``01/01/00'' as 
being the year 1900 or another incorrect year;
    (2) Computer software incorrectly identifying a date in the Year 
1999 or any year thereafter;
    (3) Computer software failing to detect that the Year 2000 is a 
leap year; or
    (4) Any other computer software error that is directly or 
indirectly caused by paragraph (d)(1), (2), or (3) of this section.
    (e) For purposes of this section, the term non-bank transfer agent 
means a transfer agent whose:
    (1) Appropriate regulatory agency, as that term is defined by 15 
U.S.C. 78(c)(34)(B), is the Securities and Exchange Commission; and
    (2) Is not a savings association, as defined by Section 3 of the 
Federal Deposit Insurance Act, 12 U.S.C. 1813, which is regulated by 
the Office of Thrift Supervision.

PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934

    3. The authority citation for part 249 continues to read in part as 
follows:

    Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
    4. By adding Sec. 249.619 and Form TA-Y2K to read as follows.


Sec. 249.619  Form TA-Y2K, information required of transfer agents 
pursuant to section 17 of the Securities Exchange Act of 1934 and 
Sec. 240.17Ad-18 of this chapter.

    This form shall be used by every registered transfer agent required 
to file reports under Sec. 240.17Ad-18 of this chapter.

    Note: Form TA-Y2K does not appear in the Code of Federal 
Regulations. Form TA-Y2K is attached as Appendix A to this document.

    By the Commission.

    Dated: July 2, 1998.
Margaret H. McFarland,
Deputy Secretary.

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[FR Doc. 98-18296 Filed 7-10-98; 8:45 am]
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