[Federal Register Volume 60, Number 5 (Monday, January 9, 1995)]
[Notices]
[Pages 2410-2412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-381]



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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-35186; File No. SR-DTC-94-16]


Self-Regulatory Organizations; The Depository Trust Company; 
Notice of Filing of a Proposed Rule Change Clarifying the Depository 
Trust Company's Policy on Depository-to-Depository Services and Fees

December 30, 1994.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ notice is hereby given that on [[Page 2411]] November 29, 
1994, The Depository Trust Company (``DTC'') filed with the Securities 
and Exchange Commission (``Commission'') the proposed rule change (File 
No. SR-DTC-94-16) as described in Items I, II, and III below, which 
Items have been prepared primarily by DTC. The Commission is publishing 
this notice to solicit comments on the proposed rule change from 
interested persons.

    \1\15 U.S.C. 78s(b)(1) (1988).
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    DTC proposes to clarify its policy regarding depository-to-
depository services and fees by filing the following statement:

    DTC shall make available to any other securities depository that 
is registered as a clearing agency under Section 17A of the 
Securities Exchange Act of 1934 (a ``depository'') any service that 
DTC makes available to its Participants generally, provided that 
such depository makes its services available to DTC on the same 
basis.
    DTC shall charge such depository for the services rendered by 
DTC and shall pay such depository for services rendered to DTC only 
such fees as DTC and the depository negotiate, but if DTC and such 
depository do not have an agreement on fees, DTC shall (i) render 
book-entry delivery services to such depository without charge if 
and so long as such depository shall render book-entry delivery 
services to DTC on the same basis and (ii) charge its published fees 
for services relating to the physical handling of certificates 
rendered by DTC to such depository and pay such depository its 
published fees for custody-related services rendered by such 
depository to DTC.\2\

    \2\This policy statement does not apply to ``linked services,'' 
which the Commission has described as arrangements where one 
depository (the ``servicing depository'') performs for another 
depository (the ``using depository''( the core tasks necessary to 
deliver the services to the using depository's participants. The 
Commission has cited as examples of linked services DTC's processing 
of ID confirmations and affirmations and DTC's fourth-party delivery 
service. The Commission has expressed the view that a servicing 
depository should be permitted to charge a using depository the same 
fee it charges its participants for the same or a similar service. 
See Securities Exchange Act Release No. 23083 (March 31, 1986) at 
15-23.
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, DTC included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments that it received on the proposed rule change. 
The text of these statements may be examined at the places specified in 
Item IV below. DTC has prepared summaries, set forth in sections (A), 
(B), and (C) below, of the most significant aspects of such statements.

(A) Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    The purpose of the proposed rule change is to state DTC's policy 
respecting depository-to-depository services and fees. DTC states that 
this policy statement reflects the practices that have been followed by 
DTC and the other depositories since the beginning of interdepository 
processing and is consistent with the Commission's expressed views 
concerning these matters.
    From the very beginning of interdepository processing, in the mid-
1970s and through the present, DTC and the other depositories have 
charged and paid each other for services rendered only such fees that 
have been negotiated. For example, in 1975, Pacific Securities 
Depository Trust Company (``PSDTC'') declared that it would not pay or 
levy charges on the other depositories. In September 1976, DTC was 
informed of the unilateral determination by the Midwest Securities 
Trust Company (``MSTC'') Board that as a matter of principle MSTC would 
discontinue paying DTC for services other than for physical withdrawals 
of certificates. In 1977, DTC, PSDTC, and MSTC formally agreed to 
provide most services to each other without charge (``no charge 
agreement'').
    At the present time, DTC has an informal agreement with the 
Philadelphia Depository Trust Company covering custody-related 
services. Each depository charges the other its published fees for 
these services. In June 1992, DTC and MSTC entered into an agreement 
that provided for depository-to-depository charges for certain 
services. This agreement was terminated by DTC on June 1, 1994, 
effective August 1, 1994, in accordance with the procedure set forth in 
the agreement for termination by either party upon sixty days 
notice.\3\ DTC has advised MSTC that if a new agreement is not reached 
between DTC and MSTC, after November 30, 1994, DTC will continue to 
provide services to MSTC but in the manner and on the terms described 
in the policy statement,\4\ which is the subject of the proposed rule 
change.

    \3\See letter from Richard B. Nesson, Executive Vice President 
and General Counsel, DTC, to Jerry W. Carpenter, Assistant Director, 
Division of Market Regulation, Commission (November 11, 1994).
    \4\Letter from William F. Jaenike, Chairman of the Board and 
Chief Executive Officer, DTC, to Robert J. McGrail, Executive Vice 
President and Chief Operating Officer, MSTC (November 17, 1994).
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    DTC states that the Commission has been aware of and has commented 
in its releases on the practice followed by FTC and other depositories 
of paying each other only such fees as are negotiated rather than all 
fees charged to participants generally. DTC states that the Commission 
in its releases has never expressed the view that one depository, by 
virtue of executing a participant agreement with another depository in 
order to establish the legal framework for an interface relationship, 
thereby becomes subject to all of that other depository's published 
participant fees. DTC states that the Commission has expressed that 
belief that:


    [R]egistered securities depositories are not similar to ordinary 
participants. Registered securities depositories are subject to 
special regulation that no other participants face including a 
specific statutory charge to cooperate with other registered 
securities depositories. Thus, the Commission believes that a ``no-
charge'' policy with respect to interface account activity does not 
result in an inequitable allocation of fees.\5\

    \5\Securities Exchange Act Release No. 20461 (December 7, 1983) 
at footnote 34.

    DTC believes that the proposed rule change is consistent with 
Section 17A(b)(3)\6\ of the Act. DTC believes that implementation of 
the subject policy will help assure that depository interface services 
are available to participants of any depository thereby promoting the 
goal of one-account settlement. DTC also states that the policy will 
enable DTC to avoid paying another depository inappropriately high fees 
that might effect its inefficient operation and to avoid paying another 
depository higher per-unit fees than such depository charges its 
participants generally.\7\ DTC believes that managing the fees paid to 
other depositories, which currently account for approximately 60% of 
DTC's total cost of providing interface services to its participants, 
will help reduce the fees that DTC must charge its participants to 
recover those costs.

    \6\15 U.S.C. 78q-1(b)(3) (1988).
    \7\DTC states that the Commission has indicated that where one 
depository is entitled to charge another (e.g., for linked 
services), it expects that any offer of volume discounts to 
participants generally would also be made available to the other 
depository. Securities Exchange Act Release No. 23803 (March 31, 
1986) at page 21.
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(B) Self-Regulatory Organization's Statement on Burden on Competition

    DTC believes that by promoting the goal of one-account settlement 
and by enabling DTC to control the interface costs that are paid by its 
participants, the proposed rule change would help [[Page 2412]] promote 
competition among depository users.

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

    DTC has not sought or received comments on the proposed rule 
change.

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

    Within thirty-five days of the date of publication of this notice 
in the Federal Register, or within such longer period: (i) as the 
Commission may designate up to ninety days of such date if it finds 
such longer period to be appropriate and publishes its reasons for so 
finding or (ii) as to which DTC 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. Persons making written submissions 
should file six copies thereof with the Secretary, Securities and 
Exchange Commission, 450 Fifth Street NW., Washington, DC 20549. 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 Room, 450 Fifth Street, NW., Washington, 
DC 20549. Copies of such filing will also be available for inspection 
and copying at the principal office of DTC. All submissions should 
refer to the file number SR-DTC-94-16 and should be submitted by 
January 30, 1995.

    For the Commission by the Division of Market Regulation, 
pursuant to delegated authority.\8\

    \8\17 CFR 200.30-3(a)(12) (1994).
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Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-381 Filed 1-6-95; 8:45 am]
BILLING CODE 8010-01-M