[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Notices]
[Pages 4151-4154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00815]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90895; File No. SR-DTC-2020-017]


Self-Regulatory Organizations; The Depository Trust Company; 
Order Approving a Proposed Rule Change To Allow for the Deposit of 
Electronic Certificates of Deposit and Technical Changes

January 11, 2021.

I. Introduction

    On November 20, 2020, The Depository Trust Company (``DTC'') filed 
with the Securities and Exchange Commission (``Commission''), pursuant 
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'') 
\1\ and Rule 19b-4 thereunder,\2\ proposed rule change SR-DTC-2020-017. 
The proposed rule change was published for comment in the Federal 
Register on December 4, 2020.\3\ The Commission did not receive any 
comment letters on the proposed rule change. For the reasons discussed 
below, the Commission is approving the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 90534 (November 30, 
2020), 85 FR 78371 (December 4, 2020) (SR-DTC-2020-017) 
(``Notice'').
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II. Description of the Proposed Rule Change

    The proposed rule change \4\ will amend the OA and Underwriting 
Service Guide to implement a new application and secured electronic 
vault (``E-vault'') for requests for eligibility, execution, delivery, 
and storage of certificates of deposit (``CDs'') that are issued by 
state and federal chartered banks. Issuers and underwriters that choose 
not to use this new electronic CD program may continue to use the 
existing process, including making Deposits using physical 
certificates. Through the proposal, DTC will also make technical 
changes in its procedures to spelling, punctuation and spacing of text 
that are unrelated to the E-CD program.
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    \4\ Capitalized terms not defined herein are defined in the 
Rules, By-Laws and Organization Certificate of DTC (the ``Rules''), 
available at www.dtcc.com/~/media/Files/Downloads/legal/rules/
dtc_rules.pdf, the DTC Operational Arrangements (Necessary for 
Securities to Become and Remain Eligible for DTC Services) (``OA''), 
available at http://www.dtcc.com/~/media/Files/Downloads/legal/
issue-eligibility/eligibility/operational-arrangements.pdf, and the 
DTC Underwriting Service Guide (``Underwriting Service Guide''), 
available at http://www.dtcc.com/~/media/Files/Downloads/legal/
service-guides/Underwriting-Service-Guide.pdf.
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A. Background

    DTC is the central securities depository (``CSD'') for 
substantially all corporate and municipal debt and equity securities 
available for trading in the United States. As a covered clearing 
agency that provides CSD services,\5\ DTC provides a central location 
in which securities may be immobilized, and interests in those 
securities are reflected in accounts maintained for DTC's Participants, 
which are financial institutions such as brokers or banks.
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    \5\ A covered clearing agency is defined as a registered 
clearing agency that provides the services of a central counterparty 
(``CCP'') or CSD. See 17 CFR 240.17Ad-22(a)(5). CSD services means 
services of a clearing agency that is a securities depository as 
described in Section 3(a)(23)(A) of the Exchange Act. See 17 CFR 
240.17Ad-22(a)(3). Specifically, the definition of a clearing agency 
includes, in part, ``any person, such as a securities depository 
that (i) acts as a custodian of securities in connection with a 
system for the central handling of securities whereby all securities 
of a particular class or series of any issuer deposited within the 
system are treated as fungible and may be transferred, loaned, or 
pledged by bookkeeping entry without physical delivery of securities 
certificates, or (ii) otherwise permits or facilitates the 
settlement of securities transactions or the hypothecation or 
lending of securities without physical delivery of securities 
certificates.'' 15 U.S.C. 78c(a)(23)(A).
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    As part of its CSD services, DTC (i) makes eligible for deposit, 
processes, and holds physical CDs issued by various U.S. banks and 
deposited by Participants, and (ii) credits interests in those CDs to 
Participants' Securities Accounts.\6\ DTC states that the use of 
physical CDs presents operational concerns to Participants and to 
DTC.\7\ To address these operational concerns, DTC has developed a 
system that will eliminate the need for physical certificates for 
certain issue types of CDs by allowing them to be issued and held in 
electronic form, as described below.
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    \6\ See OA, supra note 4, at 9-10.
    \7\ See Notice, supra note 3, 85 FR at 78372.
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    Upon implementation, the proposed rule change will address 
operational concerns of Participants relating to the amount of time and 
manual effort currently required for the issuance and redemption of 
physical CDs by allowing for a fully electronic process for the 
execution and delivery of the affected CDs. As such, DTC states that 
the proposed rule change would also reduce the need for DTC to (i) 
perform manual processing relating to CD deposits and (ii) reserve 
space in its secure, physical vault, which is currently used for CDs, 
by allowing for the storage of CDs in electronic form in a secure E-
vault.\8\
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    \8\ Id.

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[[Page 4152]]

    The proposed electronic process will also address concerns relating 
to potential disruptions in the physical transport of physical CDs to 
DTC currently made using courier and overnight delivery services. Such 
disruptions may be caused by weather-related issues, such as Superstorm 
Sandy in 2012, and other previously unforeseen circumstances, such as 
the onset of the COVID-19 pandemic in spring 2020, both of which 
impacted physical securities processing. DTC states that although it 
has maintained securities eligibility and processing operations during 
such circumstances, including by utilizing a letter of securities 
possession \9\ (``LOP'') process that enables DTC to accept virtual 
delivery of securities represented in physical form even if the 
circumstances prevent actual physical delivery at that time, such 
disruptions could delay the deposit of CDs and impact the timely 
closing of issuances and otherwise affect liquidity in the marketplace 
for CDs.\10\
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    \9\ See Underwriting Service Guide, supra note 4 at 17.
    \10\ See Notice, supra note 3, 85 FR at 78372.
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B. Current DTC Eligibility Process for CDs

    Currently, DTC processes CDs as book entry-only (``BEO'') 
securities \11\ registered to DTC's nominee, Cede & Co. BEO securities 
are DTC-eligible securities for which (i) physical certificates are not 
available to investors, and (ii) DTC, through its nominee, Cede & Co., 
would hold the entire balance of the offering, either at DTC (in 
physical form) or through a FAST Agent in DTC's Fast Automated 
Securities Transfer (``FAST'') program.
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    \11\ Underwriting Service Guide, supra note 4 at 4.
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    Once DTC has determined to make a security eligible for deposit at 
DTC, a Participant may deposit the security at DTC for crediting to its 
Securities Account. For a CD issuance, the issuing bank and Depositing 
Participant must coordinate the execution and delivery of the physical 
certificate to DTC in order for the Participant to timely receive 
credit by the anticipated closing date.\12\ Once DTC receives an 
acceptable deposit of an eligible CD from a Participant, DTC credits a 
Security Entitlement \13\ in the CD to the Participant's Securities 
Account,\14\ and DTC holds the original paper certificate in its secure 
vault for the duration of the term of the CD.
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    \12\ See DTC Deposits Service Guide (``Deposits Guide''), 
available at http://www.dtcc.com/~/media/Files/Downloads/legal/
service-guides/Deposits.pdf, at 8. The closing date is the date on 
which DTC's Underwriting Department will distribute an issue to the 
underwriter's Participant account at DTC for book-entry delivery and 
settlement upon notification by both the underwriter and the issuer 
that an issue has closed (i.e., the distribution date). See 
Underwriting Guide, supra note 4, at 6. On the closing date, when an 
issuer or its agent and the underwriter confirm with DTC that the 
issue has closed and verifies pertinent data, DTC releases the 
position from an internal DTC account and credits the underwriter's 
Participant account, provided that DTC has received the 
certificates. See id. at 9.
    \13\ Pursuant to Rule 1, the term ``Security Entitlement'' has 
the meaning given to the term ``security entitlement'' in Section 8-
102 of the New York Uniform Commercial Code (``NYUCC''). See Rule 1, 
supra note 4; see also NYUCC 8-102. The interest of a Participant or 
Pledgee in a Security credited to its Account is a Security 
Entitlement. See Rule 1, supra note 4.
    \14\ See Deposits Guide, supra note 12, at 8.
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C. Proposed DTC Eligibility Process for CDs

    As noted above, DTC is proposing to launch a new program to support 
deposit of electronic CDs that are issued by banks (``E-CDs''). The 
program will allow E-CDs to be electronically generated, signed, 
delivered to DTC and held in electronic form in a secure E-vault.
    Upon implementation of the proposed rule change, CDs of state and 
federally chartered banks containing certain standard terms that 
conform to one of four proposed templates (``System E-CD Templates'') 
will be eligible for the new program. The templates cover four basic 
types of CDs, specifically (i) Fixed Rate Non-Callable, (ii) Fixed Rate 
Callable, (iii) Step Rate Non-Callable and (iv) Step Rate Callable.\15\
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    \15\ A Fixed Rate CD pays a fixed interest rate over the entire 
term of the CD. A Step Rate CD allows for increases in the interest 
rate at specific, intervals that are pre-defined by the issuer. A 
Callable CD contains a call feature that gives the issuing bank the 
ability to redeem the CD prior to its stated maturity, usually 
within a given time frame and at a preset call price as set forth in 
the ``call provision'' in the master certificate. A certificate 
without such a provision cannot be called by the issuer prior to 
maturity date (Non-Callable).
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    After implementation of the proposed rule change, in order to 
facilitate needs of issuers and underwriters, DTC has the discretion to 
(i) edit the System E-CD Templates, and/or (ii) add additional 
templates for use in the E-CD program as System E-CD Templates that 
would be published via Important Notice. Any edits to the System E-CD 
Templates would not affect E-CDs that were previously issued into DTC.
    DTC states that more complex CDs that do not conform to the System 
E-CD Templates would be excluded from the proposed new process, because 
they typically contain terms that are not amenable to the creation of 
fixed templates in the format proposed herein.\16\
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    \16\ See Notice, supra note 3, 85 FR at 78373.
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    Pursuant to the proposed rule change, Participants will be able to 
request eligibility for E-CDs that conform to the System E-CD Templates 
through a new system referred to as Underwriting Central (``UWC'').\17\
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    \17\ UW SOURCE, DTC's existing system for processing eligibility 
requests, will continue to remain available for other types of 
issuances, including the issuances of CDs in physical form.
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    In order to request eligibility of a CD to be issued in electronic 
form, the Underwriter will provide all required information relating to 
the CD through UWC, including, but not limited to, offering 
documentation and the terms to be populated in the electronic 
certificate. DTC would then populate the relevant data (e.g., interest 
rate(s) and maturity date) into the templates based upon the data 
entered by the underwriter into the UWC application. It will be the 
responsibility of the Underwriter to disseminate the electronic master 
certificate to the issuer for electronic signature via UWC. The issuer 
will be required to electronically sign and deliver the master 
certificate to DTC prior to closing.\18\
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    \18\ Whether issued in electronic or physical form, securities 
must be delivered to DTC by no later than noon Eastern Time on the 
business day prior to the Closing Date as currently specified in 
Exhibit B of the OA.
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    For CDs that do not conform to the System E-CD Templates, 
eligibility requests will continue to be entered by the Underwriter 
through UW SOURCE, with a physical certificate delivered to DTC prior 
to closing.
    Pursuant to the proposed rule change, the OA will require each E-CD 
issuer to submit a new BLOR (``E-CD BLOR'') to DTC through UWC prior to 
its first issuance of E-CDs. In order to minimize the additional 
provisions in the Electronic Master Certificate (as defined below), the 
E-CD BLOR will contain supplemental terms related to the E-CD program 
(in addition to the representations that are currently included in a 
BLOR). The new E-CD BLOR will provide that all E-CDs issued in 
connection therewith and under one of the base CUSIP numbers set forth 
on the face of the E-CD BLOR would be part of the same transaction in 
which the E-CD BLOR was executed.\19\
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    \19\ Section 3-119 of the NYUCC provides that a negotiable 
instrument may be ``modified or affected by any other written 
agreement executed as part of the same transaction.''
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    E-CDs will be issued on a new form of master electronic certificate 
(``Electronic Master Certificate'') that has been created specifically 
for the E-CD program. A separate electronic Master Certificate would be 
issued by the issuer for each broker that participates in an E-CD 
offering. DTC will only make eligible E-CDs that have been initiated by 
the related broker/

[[Page 4153]]

dealer through UWC and then created, signed and submitted to DTC 
through an electronic signature system designed by DTC for this 
purpose. UWC will allow Participants to initiate a new E-CD issuance by 
creating a draft Electronic Master Certificate using the applicable 
System E-CD Template that would be sent to an issuer for verification 
and signature. The issuer will verify and affix its electronic 
signature to the Electronic Master Certificate created by the 
Participant in a manner that creates an executed Electronic Master 
Certificate.
    Once an issuer verifies and affixes its electronic signature to an 
Electronic Master Certificate, the Electronic Master Certificate will 
be automatically stored in an E-vault repository, and the Electronic 
Master Certificate will immediately be deemed ``delivered'' to DTC. The 
E-vault will identify Cede & Co. as the entity to which the Electronic 
Master Certificate was issued. According to DTC, the E-vault would 
maintain an audit trail that would track all events that occur with 
respect to the Electronic Master Certificate, including any authorized 
changes, such as notations to reflect withdrawals, which would be noted 
in the audit trail instead of on the body of the Electronic Master 
Certificate.\20\ The audit trail will be incorporated as part of the 
Electronic Master Certificate in accordance with the BLOR.
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    \20\ Notice, supra note 3, 85 FR at 78375.
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    Pursuant to the proposed rule change, the parties must also select 
New York law as the governing law for all E-CDs, in order to better 
allow DTC to structure a single E-CD program that it believes would be 
valid for issuers in all U.S. jurisdictions.\21\
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    \21\ Notice, supra note 3, 85 FR at 78376.
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D. Technical Changes

    DTC will also make technical changes with respect to spelling, 
punctuation and spacing of text that are unrelated to the E-CD program.
Proposed Changes to the Underwriting Service Guide
    a. A glossary description provided for BLOR in the Underwriting 
Guide currently describes a BLOR as an agreement between DTC and an 
issuer of municipal securities. As described above, a BLOR or LOR is 
required to be submitted with respect to any issue of BEO Securities 
that also includes corporate securities. Pursuant to the proposed rule 
change, the text will be clarified so that the description of the term 
BLOR is not described as limited to applying only to municipal 
securities. DTC states that the proposed change to this glossary 
description would provide enhanced clarity for Participants and Issuers 
with respect to Procedures relating to eligibility documentation 
required for BEO Securities.\22\
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    \22\ See Notice, supra note 3, 85 FR at 78378.
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    b. Pursuant to the proposed rule change, DTC will eliminate 
references to the Participant Terminal System (``PTS'') functions ART 
and PUND as these functions have become obsolete. ART related to 
inquiries about transactions of a Participant processed by DTC, and 
PUND related to inquiries relating to issues and certificates for 
issues held by a Participant. Such Participant inquiries may now be 
directed to the Client Center available on dtcc.com.\23\ The proposed 
rule change will update the Underwriting Service Guide to provide 
clarity for Participants on how to submit inquires relating to DTC's 
services.\24\
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    \23\ See Securities Exchange Act Release No. 88050 (January 27, 
2020), 85 FR 5728 (January 31, 2020) (File No. SR-DTC-2020-002).
    \24\ Id.
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    c. Pursuant to the proposed rule change, a reference to the IMPP 
function in PTS will be deleted. The IMPP function allowed Participants 
to view Important Notices about underwriting, transfer agents, and 
money market instruments (``MMI''). DTC states that this function is 
not being widely used by Participants.\25\ All DTC Important Notices 
are accessible on dtcc.com.\26\
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    \25\ See Notice, supra note 3, 85 FR at 78378.
    \26\ See https://www.dtcc.com/legal/important-notices.
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III. Discussion and Commission Findings

    Section 19(b)(2)(C) of the Act \27\ directs the Commission to 
approve a proposed rule change of a self-regulatory organization if it 
finds that such proposed rule change is consistent with the 
requirements of the Act and rules and regulations thereunder applicable 
to such organization. After carefully considering the proposed rule 
change, the Commission finds that the proposed rule change is 
consistent with the requirements of the Act and the rules and 
regulations thereunder applicable to DTC. In particular, the Commission 
finds that the proposed rule change is consistent with Section 
17A(b)(3)(F) of the Act and Rules 17Ad-22(e)(1), (e)(10), and (e)(11) 
promulgated under the Act,\28\ for the reasons described below.
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    \27\ 15 U.S.C. 78s(b)(2)(C).
    \28\ 15 U.S.C. 78q-1(b)(3)(F); 17 CFR 240.17Ad-22(e)(1), 
(e)(10), and (e)(11).
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A. Consistency With Section 17A(b)(3)(F)

    Section 17A(b)(3)(F) of the Act requires, in part, that the rules 
of a clearing agency, such as DTC, assure the safeguarding of 
securities and funds which are in the custody or control of the 
clearing agency or for which it is responsible and promote the prompt 
and accurate clearance and settlement of securities transactions.\29\
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    \29\ Id.
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    As described above, the proposed rule change will provide for the 
issuance of Electronic Master Certificates for E-CDs which will be 
stored in a secure E-Vault. First, the Commission believes that by 
providing for the storage of E-CDs in a secure electronic vault, the 
proposal should help safeguard CDs from potential disruptions caused by 
issues involving the use of a physical vault, such as weather-related 
or other operational issues. As such, the Commission believes that the 
proposal is designed to assure the safeguarding of securities and funds 
which are in the custody or control of the clearing agency or for which 
it is responsible. Second, the Commission believes that by eliminating 
the need for DTC to receive original paper master certificates in 
advance of CD issuances, the proposal should help reduce closing delays 
caused by disruptions to physical delivery of certificates. As a 
result, the Commission believes that the proposal is designed to 
promote the prompt and accurate clearance and settlement of securities 
transactions.
    In addition, the proposed rule change will make technical changes 
to provide enhanced clarity for Participants and Issuers with respect 
to procedures relating to eligibility processing and the deposit of 
CDs. By providing Participants and Issuers with enhanced clarity with 
regard to the procedures relating to, and therefore facilitating, 
eligibility processing and the deposit of CDs, the Commission believes 
that the technical changes are designed to promote the prompt and 
accurate clearance and settlement of securities transactions.

B. Consistency With Rule 17Ad-22(e)(1)

    Rule 17Ad-22(e)(1) under the Act requires that DTC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to provide for a well-founded, clear, transparent, 
and enforceable legal basis for each aspect of its activities in all 
relevant jurisdictions.\30\
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    \30\ 17 CFR 240.17Ad-22(e)(1).
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    As described above, DTC will require E-CDs at DTC to be negotiable

[[Page 4154]]

instruments governed by New York law. As described in the Notice, DTC 
believes that the proposed rules change would provide for a well-
founded, clear, transparent, and enforceable legal basis for the valid 
issuance of E-CDs into DTC from issuers domiciled in any relevant 
jurisdiction.\31\ Specifically, DTC conducted analysis of the legal 
basis for E-CDs under the Uniform Commercial Code, the New York 
Electronic Signatures and Records Act,\32\ the Uniform Electronic 
Transactions Act,\33\ and the federal Electronic Signatures in Global 
and National Commerce Act.\34\ DTC believes that it has structured the 
E-CDs to meet the requirements of each law.\35\ By conducting this 
analysis of applicable laws, the Commission believes that DTC designed 
the proposal to help ensure that E-CDs are well-founded, transparent, 
and legally enforceable in all relevant jurisdictions, consistent with 
Rule 17Ad-22(e)(1) under the Act.\36\
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    \31\ See Notice, supra note 3, 85 FR at 78373-75.
    \32\ N.Y. State Tech. Law Sec.  30 (McKinney 2012).
    \33\ Unif. Electronic Transactions Act (Unif. L. Comm'n 1999).
    \34\ Electronic Signatures in Global and National Commerce 15 
U.S.C. Sec.  70.
    \35\ See Notice, supra note 3, 85 FR at 78373-75.
    \36\ 17 CFR 240.17Ad-22(e)(1).
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C. Consistency With Rule 17Ad-22(e)(10)

    Rule 17Ad-22(e)(10) under the Act requires that DTC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to establish and maintain operational practices 
that manage the risks associated with physical deliveries.\37\
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    \37\ 17 CFR 240.17Ad-22(e)(10).
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    The proposed rule change will provide for the issuance of 
Electronic Master Certificates for E-CDs. As such, the proposal should 
help reduce risks of loss related to the physical CDs that would 
otherwise be physically transported to DTC for deposit and later 
returned to issuers or their agents for redemption upon maturity of the 
CD. By reducing the risk of loss of physical master certificates by 
allowing their replacement with Electronic Master Certificates, the 
Commission believes the proposal is designed to manage the risks 
associated with physical deliveries.\38\
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    \38\ Id.
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D. Consistency With Rule 17Ad-22(e)(11)

    Rule 17Ad-22(e)(11) under the Act requires that DTC establish, 
implement, maintain and enforce written policies and procedures 
reasonably designed to (i) maintain securities in an immobilized or 
dematerialized form for their transfer by book entry; (ii) prevent the 
unauthorized creation or deletion of securities; and (iii) protect 
assets against custody risk through appropriate rules and procedures 
consistent with relevant laws, rules and regulations in jurisdictions 
where it operates.\39\
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    \39\ 17 CFR 240.17Ad-22(e)(11).
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    The proposed rule change will provide for the issuance of 
Electronic Master Certificates for E-CDs. First, by providing for the 
deposit of securities in the name of Cede & Co. to be deposited in 
electronic form and stored in an electronic vault, the proposed rule 
change will provide for the immobilization and dematerialization of 
these master certificates for the transfer of CDs by book entry. Thus, 
the Commission believes the proposal is designed to maintain securities 
in an immobilized or dematerialized form for their transfer by book 
entry. Second, by the use of this centralized process for issuance and 
processing of CDs, the proposed rule change should facilitate the 
prevention of the unauthorized creation or deletion of securities 
processed through the E-CD program. Therefore, the Commission believes 
the proposal is designed to prevent the unauthorized creation or 
deletion of securities. Third, by the utilization of Electronic Master 
Certificates in the forms of System E-CD Templates issued under the 
applicable E-CD BLOR to account for relevant laws, the Commission 
believes the proposal is designed to protect assets against custody 
risk through appropriate rules and procedures consistent with relevant 
laws, rules, and regulations in jurisdictions where it operates.

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, with the requirements of Section 17A of the Act 
\40\ and the rules and regulations promulgated thereunder.
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    \40\ 15 U.S.C. 78q-1.
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    It is therefore ordered, pursuant to Section 19(b)(2) of the Act 
\41\ that proposed rule change SR-DTC-2020-017, be, and hereby is, 
APPROVED.\42\
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    \41\ 15 U.S.C. 78s(b)(2).
    \42\ In approving the proposed rule change, the Commission 
considered the proposals' impact on efficiency, competition, and 
capital formation. 15 U.S.C. 78c(f).

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\43\
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    \43\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-00815 Filed 1-14-21; 8:45 am]
BILLING CODE 8011-01-P


