Self-Regulatory Organizations; National Securities Clearing Corporation; Order Granting Approval of a Proposed Rule Change To Modify the National Securities Clearing Corporation's Continuous Net Settlement System

I. Introduction

On February 23, 2004, the National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) and on March 26, 2004, amended proposed rule change File No. SR-NSCC-2004-01 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”). Notice of the proposed rule change was published in the Federal Register on May 24, 2004. No comment letters were received. For the reasons discussed below, the Commission is now granting approval of the proposed rule change.

II. Description

As part of the securities industry's straight-through processing (“STP”) initiative, NSCC has been engaged in a project to update and revise its Continuous Net Settlement (“CNS”) system (“CNS Rewrite”). The major aspects of the CNS Rewrite include a completely new platform on which the CNS system will run that will accommodate real-time updates to the system, will improve access to CNS and depository information for members, and will provide the capability to add trades to the settlement process on a real-time basis until 11:30 a.m. on settlement day.

The new CNS system, with a targeted implementation date of August 2004, will be able to take in trades until 11:30 a.m. on settlement day and to net and settle them that day. To support this, NSCC has developed new Supplemental Consolidated Trade Summaries that will report trades settling on settlement date. CNS will produce the Supplemental Consolidated Trade Summary at or about 2 a.m. and at or about 1 p.m. on each settlement date. In addition, so that members can update their CNS positions immediately, CNS will provide intraday messages for activity that occurs after the start of the day cycle as a result of settling trades and miscellaneous activity going into CNS on settlement date. These messages will be optional to the member because the same information will also be reported in the second Supplemental Consolidated Trade Summary made available at 1 p.m. and in the Daytime Miscellaneous Activity Report issued later in the afternoon on each settlement date. In addition, members will be able to view their CNS positions on a real-time basis using the Participant Browser Service (“PBS”) developed by The Depository Trust Company (“DTC”). The CNS Cash Reconciliation Statement will be updated on a real-time basis and will be available on PBS after night cycle processing.

Another new STP feature available in the new CNS system will be the ability to create automated Deliver Orders (“DOs”) for non-CNS, depository eligible securities. Today, NSCC creates receive and deliver instructions, or balance orders, for non-CNS depository eligible securities. Its members then have to enter the balance orders as DOs at DTC. To automate and streamline the processing of trades in non-CNS, depository eligible issues, at the request of the member with the delivery obligation, NSCC will create delivery versus payment DOs that will automatically be transmitted to DTC for processing. This is an optional feature that can be activated by the delivery of standing instructions to NSCC that will cover all of the deliverer's balance orders and special trades.

Other new features that will be implemented include the enhancement of the CNS Stock Borrow Program to include acceptance of borrowing instructions for the day cycle and the acceptance and real-time application of CNS “Fully Paid For” securities instructions. The CNS Stock Borrow Program enhancement is intended to maximize the use of excess collateral and reduce the number of CNS fails. In addition to providing instructions for securities available for borrowing in the night cycle, members will now also be able to provide CNS with a new file of available excess collateral from 5 a.m. until 1 p.m. for use in the day cycle.

The real-time acceptance of CNS “Fully Paid For” instructions is intended to further facilitate members' compliance with securities law requirements concerning possession or control of customer securities. At the current time, a member that delivers securities in its possession or control in anticipation of receiving securities from CNS as a result of allocations during the night cycle may instruct NSCC to move the open CNS long position from its CNS A (long valued) Account to its Fully-Paid-For E Subaccount to meet its customer possession or control requirements. NSCC makes such movements at the end of the processing day and concurrently debits the member's settlement account for the value of the position in the E subaccount. NSCC then segregates the funds received as a result of such debit so that it constitutes a control location within the meaning of Securities Exchange Act Rule 15c3-3.

The proposed CNS changes modify this procedure to (a) expand the capability of a member to utilize the Fully-Paid-For E Subaccount in anticipation of CNS allocations in the day cycle as well as in the night cycle and (b) permit fully-paid instructions to be received and applied on a real-time basis during the day cycle up through 2:45 p.m. By accepting such instructions on a real-time basis, any securities received into a member's Fully-Paid-For E subaccount can automatically be updated to the member's memo seg position at DTC on an intraday basis at the member's election through standing instructions.

The following is a summary of NSCC rules that have to be changed to implement the modifications to the CNS system:

(1) Rule 11, “CNS System,” is being amended to reflect the addition of the Supplemental Consolidated Trade Summaries that will be produced on each settlement day. Because of the new system's ability to take in trades, to net them, and to update CNS processing on a real-time basis on settlement day, Rule 11 is also being amended to make clear that with respect to trades settling on that day, a member's obligation to deliver or pay for and receive CNS securities will be fixed each time the member's net settling position is determined by CNS processing and the net settling position is made available by NSCC.

In addition, Section 9 of Rule 11 is being amended to provide the mechanism whereby a member with trades in CNS or Balance Order securities designated as “Special Trades” (which must be settled on a member-to-member basis) may issue NSCC standing instructions to provide automated DO instructions to DTC. Any such instructions will cover all of the delivering member's balance orders and Special Trades.

(2) Rule 44, “Deliveries Pursuant to Balance Orders,” is being amended to provide the mechanism whereby a delivering member can issue standing instructions to NSCC to provide automated delivery instructions to DTC. Any such instructions will cover all of the delivering member's balance orders and Special Trades.

(3) Procedures II, “Trade Comparison Service,” and III, “Trade Recording Service (Interface Clearing Procedures),” are being amended to make conforming changes to account for same day settling trades by indicating that the cutoff times for trade comparison and recording of as-of trades to settle on their originally designated settlement schedules will now be the cutoff time set on T+3 (instead of T+2). T+3 and older as-of trades received thereafter will be assigned a new settlement date, which will be the following settlement day.

(4) Procedure V, “Balance Order Accounting Operation,” is being amended to reflect that security balance orders will be shown on the Consolidated Trade Summary and Supplemental Consolidated Trade Summaries issued on each settlement day. An indicator will be added to these reports to reflect any standing instructions given by the member for the issuance of DOs for balance orders and Special Trades.

(5) Procedure VII, “CNS Accounting Operation,” is being amended to reflect (a) NSCC's ability to accept through 11:30 a.m. and process on a real-time basis on settlement date trades settling on that day, (b) the issuance of the two Supplemental Consolidated Trade Summaries on each settlement day, (c) the updated reports and methods of reporting information (including through real-time message updates, the web-based PBS screens which report updated CNS positions on a real-time basis, and additional Miscellaneous Activity Reports), and (d) certain conforming changes to properly reflect current processing.

In addition, the Fully-Paid-For Account procedures included in Procedure VII, “CNS Accounting Operation,” are being amended to reflect the extension of this program to the day cycle allocation process, the real-time acceptance of instructions through the day cycle, and the real-time application of such instructions. Also the Note accompanying Procedure VII.E.5. is being modified because the portion relating to stock loan recalls is no longer applicable.

(6) Addendum C, “NSCC Automated Stock Borrow Procedures,” is being amended to reflect the extension of this service to the daytime processing cycle and to provide the mechanism whereby members can loan their available securities to NSCC during the morning of settlement day. These securities will be used for any shortfalls that the CNS system has in the day cycle.

The daytime stock borrow process will be separate from the nighttime stock borrow process. Securities that members make available for the nighttime process will not be applied in the daytime process. Members will have the option to participate in the nighttime stock borrow program, the daytime stock borrow program, or in both programs. The changes also reflect the member's ability to be advised of any borrows through intraday messages so that members have the ability to make movements into their Fully-Paid-For Accounts as needed.

(7) Addendum G, “Fully-Paid-For Account,” is being amended to reflect that this application will be available to members on a real-time basis during the day cycle on each settlement day in order to facilitate members' compliance with their securities possession or control requirements.

At this time a clarification is also being made to Rule 12, “Settlement,” consistent with NSCC's collection and segregation of amounts debited in connection with positions in the Fully-Paid-For E subaccount. It has always been understood that the movement into this subaccount was contingent upon the member's due payment of the funds debited with respect to the value of that position. It is the collection and segregation of such funds that permits NSCC to guarantee the position “free of payment” and thus constitute a valid “control location.” Thus, Rule 12 is being amended to make clear that any movement of a long valued position to the Fully-Paid-For E subaccount will not become final until the member satisfies its end-of-day money settlement obligation.

(8) Addendum K, “Interpretation of the Board of Directors—Application of Clearing Fund,” is being amended to reflect that with respect to trades received by NSCC after commencement of the nighttime processing cycle and prior to 11:30 a.m. on each settlement day, NSCC's trade guaranty will attach to such trades as of the completion of the trade comparison process or the trade recording process for such trades.

(9) Consistent with NSCC's extension of its trade guaranty to same day settling trades, Rule 15, “Financial Responsibility and Operational Capability,” is being amended to make clear that additional clearing fund payments that may be assessed on members may also include charges relative to such same day settling trades.

In addition, the rule change makes a number of technical corrections, including the following:

(1) It defines the terms “Settlement Date” and “settlement day” which are used throughout NSCC's Rules & Procedures and makes clear that the Consolidated Trade Summary is issued on each day that is a settlement day.

(2) It revises Procedure I, “Introduction,” to delete references to SIAC as NSCC's facilities manager and to codify NSCC's longstanding established practice of setting data submission thresholds to minimize data transmission errors and data field requirements.

(3) It changes the heading of Procedure II, “Trade Comparison Service,” to “Trade Comparison and Recording Service” to reflect that this procedure covers trade recording as well as trade comparison.

NSCC intends to implement changes to the CNS system on or about August 6, 2004. At that time, all CNS Rewrite functionality will be implemented except for processing same day settling trades and the two Supplemental Consolidated Trade Summaries that support same-day trade settlement. NSCC intends to begin processing same day settling trades and the supporting Supplemental Consolidated Trade Summaries on or about August 19, 2004.

III. Discussion

Section 17A(b)(3)(F) of the Act requires among other things that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions. The Commission finds that NSCC's proposed rule change is consistent with this requirement because the changes being made to the NSCC's CNS system will promote the prompt and accurate clearance and settlement of securities transactions by providing greater functionality and capacity and by allowing members to focus less attention on exception processing.

IV. Conclusion

On the basis of the foregoing, the Commission finds that the proposed rule change is consistent with the requirements of the Act and in particular Section 17A of the Act and the rules and regulations thereunder.

It is therefore ordered, pursuant to Section 19(b)(2) of the Act, that the proposed rule change (File No. SR-NSCC-2004-01) be and hereby is approved.