[Federal Register Volume 70, Number 65 (Wednesday, April 6, 2005)]
[Notices]
[Pages 17494-17495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-1566]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-51458; File No. SR-NSCC-2004-09]


Self-Regulatory Organizations; National Securities Clearing 
Corporation; Notice of Filing of Proposed Rule Change To Establish a 
Comprehensive Standard of Care and Limitation of Liability to Its 
Members

March 31, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on December 8, 2004, the 
National Securities Clearing Corporation (``NSCC'') filed with the 
Securities and Exchange Commission (``Commission'') and on March 15, 
2005, amended the proposed rule change described in Items I, II, and 
III below, which items have been prepared primarily by NSCC. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested parties.
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    \1\ 15 U.S.C. 78s(b)(1).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    NSCC is seeking to establish a comprehensive standard of care and 
limitation of liability with respect to its members.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, NSCC included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. NSCC has prepared summaries, set forth in sections (A), 
(B), and (C) below, of the most significant aspects of these 
statements.\2\
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    \2\ The Commission has modified the text of the summaries 
prepared by NSCC.
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(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    NSCC is seeking to establish a comprehensive standard of care and 
limitation of liability with respect to its members. Historically, the 
Commission has left to user-governed clearing agencies the question of 
how to allocate losses associated with, among other things, clearing 
agency functions.\3\ The Commission has reviewed clearing agency 
services on a case-by-case basis and in determining the appropriate 
standard of care has balanced the need for a high degree of clearing 
agency care with the effect the resulting liabilities may have on 
clearing agency operations, costs, and safekeeping of securities and 
funds.\4\ Because standards of care represent an allocation of rights 
and liabilities between a clearing agency and its members, which are 
sophisticated financial entities, the Commission has refrained from 
establishing a unique federal standard of care and generally has 
allowed clearing agencies and other self-regulatory organizations and 
their members to establish their own standard of care.\5\ In addition, 
the Commission has recognized that a gross negligence standard of care 
is appropriate for certain noncustodial functions where a clearing 
agency, its board of directors, and its members determine to allocate 
risk to individual service users.\6\
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    \3\ Securities Exchange Act Release Nos. 20221 (September 23, 
1983), 48 FR 45167 and 22940 (February 24, 1986), 51 FR 7169.
    \4\ Id.
    \5\ Id.
    \6\ Securities Exchange Act Release No. 26154 (October 3, 1988), 
53 FR 39556. NSCC's services provided to members are noncustodial in 
that, other than clearing fund deposits, it does not hold its 
members' funds or securities.
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    NSCC believes that adopting a uniform rule \7\ limiting NSCC's 
liability

[[Page 17495]]

to its members to direct losses caused by NSCC's gross negligence, 
willful misconduct, or violation of Federal securities laws for which 
there is a private right of action would: (1) Memorialize an 
appropriate commercial standard of care that will protect NSCC from 
undue liability; \8\ (2) permit the resources of NSCC to be 
appropriately utilized for promoting the accurate clearance and 
settlement of securities; and (3) would be consistent with similar 
rules adopted by other self-regulatory organizations and approved by 
the Commission.\9\
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    \7\ The proposed language of new Section 2 of Rule 58 is as 
follows:
    SEC. 2. Notwithstanding any other provision in the Rules:
    (a) The Corporation will not be liable for any action taken, or 
any delay or failure to take any action, hereunder or otherwise to 
fulfill the Corporation's obligations to its Members including 
Settling Members, Settling Bank Only Members, Municipal Comparison 
Only Members, Insurance Carrier Members, TPA Members, Mutual Fund/
Insurance Services Members, Non-Clearing Members, Fund Members and 
Data Services Only Members, other than for losses caused directly by 
the Corporation's gross negligence, willful misconduct, or violation 
of Federal securities laws for which there is a private right of 
action. Under no circumstances will the Corporation be liable for 
the acts, delays, omissions, bankruptcy, or insolvency, of any third 
party, including, without limitation, any depository, custodian, 
sub-custodian, clearing or settlement system, transfer agent, 
registrar, data communication service or delivery service (``Third 
Party''), unless the Corporation was grossly negligent, engaged in 
willful misconduct, or in violation of Federal securities laws for 
which there is a private right of action in selecting such Third 
Party.
    (b) Under no circumstances will the Corporation be liable for 
any indirect, consequential, incidental, special, punitive or 
exemplary loss or damage (including, but not limited to, loss of 
business, loss of profits, trading losses, loss of opportunity and 
loss of use) howsoever suffered or incurred, regardless of whether 
the Corporation has been advised of the possibility of such damages 
or whether such damages otherwise could have been foreseen or 
prevented.
    (c) With respect to instructions given to the Corporation by a 
Special Representative/Index Recipient Agent, the Corporation shall 
have no responsibility or liability for any errors which may occur 
in the course of transmissions or recording of any transmissions or 
which may exist in any magnetic tape, document or other media so 
delivered to the Corporation.
    (d) With respect to the Corporation's distribution facilities, 
the Corporation assumes no responsibility whatever for the form or 
content of any tickets, checks, papers, documents or other material 
(other than items prepared by it) placed in the boxes in its 
distribution facilities assigned to each Settling Member, Municipal 
Comparison Only Member, Insurance Carrier Member, TPA Member, Fund 
Member and Data Services Only Member, or otherwise handled by the 
Corporation; nor does the Corporation assume any responsibility for 
any improper or unauthorized removal from such boxes or from the 
Corporation's facilities of any such tickets, checks, papers, 
documents or other material, including items prepared by the 
Corporation.
    (e) With respect to Fund/Serv transactions, the Corporation will 
not be responsible for the completeness or accuracy of any 
transaction or instruction received from or transmitted to a 
Settling Member, Data Services Only Member, TPA Member, TPA Settling 
Entity, Mutual Fund Processor or Fund Member through Fund/Serv, nor 
for any errors, omissions or delays which may occur in the 
transmission of a transaction or instruction to or from a Settling 
Member, Data Services Only Member, TPA Member, TPA Settling Entity, 
Mutual Fund Processor or Fund Member.
    (f) The Corporation will not be responsible for the completeness 
or accuracy of any IPS Data and Repository Data received from or 
transmitted to an Insurance Carrier Member, Member or Data Services 
Only Member through IPS nor for any errors, omissions or delays 
which may occur in the transmission of such IPS Data and Repository 
Data to or from an Insurance Carrier Member, or Data Services Only 
Member.
    \8\ NSCC has always operated under a gross negligence standard 
of care and both internal and external counsel have consistently 
advised members that this is the case. NSCC is seeking to eliminate 
any confusion due to the absence of a clear standard set forth in 
its rules and to memorialize its historical practice. In addition, 
NSCC has in effect a service agreement with the Fixed Income 
Clearing Corporation (``FICC'') pursuant to which FICC provides 
services for NSCC's fixed income products. This service agreement 
provides for a gross negligence standard of care. In the absence of 
this proposed rule, NSCC could be in the position of having to pay 
for losses caused by FICC that are not recoverable under the 
agreement.
    \9\ See, e.g., Securities Exchange Act Release Nos. 37421 (July 
11, 1996), 61 FR 37513 [File No. SR-CBOE-96-02]; 37563 (August 14, 
1996), 61 FR 43285 [File No. SR-PSE-96-21]; 48201 (July 21, 2003), 
68 FR 44128 [File No. SR-GSCC-2002-10]; and 49373 (March 8, 2004), 
69 FR 11921 [File No. SR-FICC-2003-09].
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    NSCC believes that the proposed rule change is consistent with the 
requirements of Section 17A of the Act \10\ and the rules and 
regulations thereunder applicable to NSCC because it will permit the 
resources of NSCC to be appropriately utilized for promoting the 
accurate clearance and settlement of securities.
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    \10\ 15 U.S.C. 78q-1.
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(B) Self-Regulatory Organization's Statement on Burden on Competition

    NSCC does not believe that the proposed rule change will impose a 
burden on competition not necessary or appropriate in furtherance of 
the purposes of the Act.

(C) Self-Regulatory Organization's Statement on Comments on the 
Proposed Rule Change Received From Members, Participants or Others

    NSCC has not solicited or received any written comments on this 
proposal. NSCC will notify the Commission of any written comments it 
receives.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within thirty-five days of the date of publication of this notice 
in the Federal Register or within such longer period (i) as the 
Commission may designate up to ninety days of such date if it finds 
such longer period to be appropriate and publishes its reasons for so 
finding or (ii) as to which the self-regulatory organization consents, 
the Commission will:
    (A) By order approve such proposed rule change or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml) or
     Send an E-mail to [email protected]. Please include 
File Number SR-NSCC-2004-09 on the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609.
    All submissions should refer to File Number SR-NSCC-2004-09. This 
file number should be included on the subject line if e-mail is used. 
To help the Commission process and review your comments more 
efficiently, please use only one method. The Commission will post all 
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, 
all written statements with respect to the proposed rule change that 
are filed with the Commission, and all written communications relating 
to the proposed rule change between the Commission and any person, 
other than those that may be withheld from the public in accordance 
with the provisions of 5 U.S.C. 552, will be available for inspection 
and copying in the Commission's Public Reference Section, 450 Fifth 
Street, NW., Washington, DC 20549. Copies of such filing also will be 
available for inspection and copying at the principal office of NSCC 
and on NSCC's Web site at http://www.nscc.com/legal. All comments 
received will be posted without change; the Commission does not edit 
personal identifying information from submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NSCC-2004-09 and should be 
submitted on or before April 26, 2005.


    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. E5-1566 Filed 4-5-05; 8:45 am]
BILLING CODE 8010-01-P