Ms. Katie J. Sevcik
Vice President, Manager of Operations
Law Department
Wells Fargo & Company
MAC N9305-172
Sixth and Marquette
Minneapolis, MN 55479

Re: No-Action Request With Respect to SEC Rule 17Ad-7(f)(5)(ii) under the Securities Exchange Act of 1934

Dear Ms. Sevcik:

This letter is in response to your letter dated March 23, 2004, where you request that the Division of Market Regulation ("Division") of the U.S. Securities and Exchange Commission ("Commission") not recommend enforcement action to the Commission against Wells Fargo Bank, N.A. ("Wells Fargo") for violating Rule 17Ad-7(f)(5)(ii) under the Securities Exchange Act of 1934 ("Act")¹ if Wells Fargo were to escrow a copy of its vendor's software and related materials under the terms outlined in your letter.²

Background

As you know, Rules 17Ad-6 and 17Ad-7 under the Act³ specify the records that registered transfer agents must make and the amount of time and manner in which they must preserve these records. Under Rule 17Ad-7(f)(5)(ii), transfer agents that choose to use electronic storage media to store such records must:

Place in escrow with an independent third party and keep current a copy of the physical and logical format of the electronic storage or micrographic media, the field format of all different information types written on the electronic storage media and source code, and the appropriate documentation and information necessary to access records and indexes.

As explained in the Commission's release adopting the electronic storage provisions of Rule 17Ad-7, this requirement is designed to assist the Commission or the transfer agent's appropriate regulatory agency's ("ARA") in accessing a transfer agent's records and indexes during, for example, some type of emergency such as a transfer agent's insolvency or refusal to cooperate. The rule also requires the escrow agent to file an undertaking with the Commission or ARA that it will make such records management information available to the Commission or ARA promptly upon request.

Your Representations and Proposal

You state that Wells Fargo is a transfer agent registered with the Commission and that Wells Fargo has purchased records management software to archive its records and indexes.⁴ However, because the software vendor has not agreed to include the software source code and object code as part of the escrow materials, Wells Fargo believes that it is unable to comply with Rule 17Ad-7(f)(5)(ii).

You propose that Wells Fargo satisfy Rule 17Ad-7(f)(5)(ii) by placing into escrow "Escrow Materials." "Escrow Materials" are defined in your escrow agreement as the following:

"Escrow Materials" shall mean the "as built" programs, physical and logical format of the electronic storage or micrographics media, the field format and all different application executables and appropriate documentation and information necessary, and the appropriate documentation and information necessary to access the records and indexes of Wells Fargo's electronic records management system as required and set forth in Security (sic) Exchange Commission (SEC) rule 17Ad-7. The actual application software for accessing archived electronic records is described as FileNet Panagon Image Service 3.6 SP2 for Windows, as described in Exhibit A hereto. A copy of source code and object code is not to be a part of the Escrow Material or a part of this agreement.

Our Response

In the Adopting Release, we summarized Rule 17Ad-7(f)(5)(ii) as requiring transfer agents to "[k]eep in escrow an updated copy of the software or other information that is necessary to access and download electronically stored records." Also in the Adopting Release, we used the words "records management software" to broadly describe the materials that are required to be placed in escrow with an independent third party.

Based on the representations contained in your March 23, 2004, letter, as well as related telephone and e-mail communications with Division staff, the Division will not recommend that the Commission take enforcement action against Wells Fargo for violating Rule 17Ad-7(f)(5)(ii) if it places into escrow with an independent third party the "Escrow Materials," as that term is defined in your escrow agreement, as set out above in place of the items set forth in Rule 17Ad-7(f)(5)(ii).

This position is based on the facts and representations described above; any different facts or representations may require a different response. In addition, this position address enforcement action only and should not be understood to express any legal conclusions regarding the applicability of statutory or regulatory provisions of the federal securities laws. This position is subject to changes in current law and regulations governing Wells Fargo; any such changes in the law or regulations may supersede these positions or require the Division to reevaluate these positions. The Division may revoke or modify this position in the future as a result of such reevaluation. Finally, this position is subject to modification or revocation at any time the Commission or the Division determines that such modification or revocation is consistent with the public interest or the protection of investors.

Endnotes

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¹ 17 CFR 240.17Ad-7(f)(5)(ii).

² We have attached a copy of your letter to this response to avoid reciting all of the facts and circumstances.

³ 17 CFR 240.17Ad-6 and 17 CFR 240.17Ad-7.

⁴ Wells Fargo's March 23, 2004, letter states that Wells Fargo has contracted with FileNet Corporation to "access" Wells Fargo's electronic records management system's records and indexes. Subsequent discussions between Wells Fargo staff and Division staff clarified that Wells Fargo had purchased FileNet document imaging and records management software that Wells Fargo will use itself to maintain its records and indexes.

Incoming Letter:

Mr. Jerry Carpenter
Assistant Director
Division of Market Regulation
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549

Re: No-Action Request by Wells Fargo Bank, N.A. regarding records retention and software escrow requirements under SEC Rule 17Ad-7

Dear Mr. Carpenter:

This letter is submitted to the Commission by the Law Department of Wells Fargo & Company, the parent corporation of Wells Fargo Bank, N.A. ("Wells Fargo"), which is a national banking association and a registered transfer agent. Wells Fargo has contracted with FileNet Corporation ("Vendor"), the provider of document imaging software to access the records and indexes of Wells Fargo's electronic records management system. Wells Fargo is aware that provisions of SEC Rule 17Ad-7, as amended, require certain types of software to be placed into escrow with an independent escrow agent, and that the rule requires a transfer agent to place third party licensed software with an independent escrow agent if access to the source code is not available.

Wells Fargo has discussed the requirements of Rule 17Ad-7 with Vendor, including these specific requirements:

"[T]ransfer agents that use electronic storage media or micrographic media to store their records must: maintain, keep current, and provide promptly upon request by the Commission and their ARA all information necessary to access the records and indexes stored on electronic storage media or micrographic media and place in escrow and keep current a copy of the physical and logical format of the electronic or micrographic storage media, the field format of all different information types written on the electronic storage media and source code, and the appropriate documentation and information necessary to access records and indexes. The escrow agent must file a statement with the Commission that it will make this information available promptly upon request to the Commission's representatives or the ARA." [Excerpt from Rule 17Ad-7]

Vendor has agreed to permit Wells Fargo to enter into an escrow agreement under which an independent escrow agent will hold a copy of the Vendor software materials required for the Commission or an ARA, if necessary, to obtain, load, and access Wells Fargo's database of records required that are to be maintained under Rule 17Ad-6. We are enclosing a copy of the escrow agreement, dated as of March 15, 2004 (the "Escrow Agreement"), by and between Wells Fargo and U.S. Escrow Services, Inc., as escrow agent. (See attached Escrow Agreement.)

The escrowed software and related materials which are to be held by the third party escrow agent are described as follows in the Escrow Agreement, which also refers to a software description attached hereto as Exhibit A.

"Escrow Materials" shall mean the "as built" programs, physical and logical format of the electronic storage or micrographics media, the field format and all different application executables and appropriate documentation and information necessary, and the appropriate documentation and information necessary to access the records and indexes of Wells Fargo's electronic records management system as required and set forth in Security Exchange Commission (SEC) rule 17Ad-7. The actual application software for accessing archived electronic records is described as FileNet Panagon Image Service 3.6 SP2 for Windows, as described in Exhibit A hereto. The copy of source code and object code is not to be a part of the Escrow Material or a part of this agreement. [Excerpt from Escrow Agreement]

Despite requests by Wells Fargo to do so, Vendor has not agreed to include the software source code and object code as part of the Escrow Agreement. Vendor has noted that software developers have been traditionally reluctant to provide their source code to a customer or an unrelated third party, because they consider the source code the essence of their product.

Since the source code is unavailable from Vendor for escrow, Wells Fargo has executed the Escrow Agreement with an independent escrow agent, which provides for the escrow agent to hold the Escrow Materials as defined above. Accordingly, Wells Fargo is requesting the Commission staff to review the software escrow arrangements as described herein, and that the Commission staff will not recommend that the Commission take enforcement action regarding Wells Fargo's method of compliance with the escrow requirements of Rule 17Ad-7.

Please contact me at 651-450-4190 or our counsel, Gordon Glaza at 612-667-0628 if you need any additional information, or have questions or comments regarding this request. Thank you very much for your consideration of this request.

Sincerely,

/s/ Katie J. Sevcik
Vice President, Manager of Operations

Exhibit A

Software required for retrieving archived data

FileNet Panagon Image Services 3.6 SP2 for Windows
    Actual application required for restoring and accessing archived data

Microsoft Windows 2000 with Service Pack 3 or 4
    Standard Operating System software - Default installation

Microsoft SQL Server 2000 with Service Pack 3
    Backend database software used by Panagon Image Services - Default installation

Hardware required for retrieving archived data

PC or Server with at least 1GB of RAM, 80GB of Hard Drive space and processor speed of 1GHz or higher

Magneto Optical disc drive capable of reading 9.1GB 5.25-inch media

Interface adapter (SCSI) for connecting MO disc drive to computer

ESCROW AGREEMENT

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SECTION I
DEFINITIONS

The defined terms utilized throughout this Agreement shall have the following meanings which shall govern and control the interpretation of this Agreement. Capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Agreement:

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B. "Escrow Materials" shall mean a copy of the "as built" programs, physical and logical format of the electronic storage or micrographic media, the field format and all different application executables and appropriate documentation and information necessary, and the appropriate documentation and information necessary to access the records and indexes of WFSS's electronic records management system as required and set forth in Securities Exchange Commission (SEC) rule 17Ad-7. The actual application software for accessing archived electronic records is the FileNet Panagon Image Services 3.6 SP2 for Windows, as described in Exhibit A hereto. A copy of the source code and object code is not part of the Escrow Materials or part of this Agreement.

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http://www.sec.gov/divisions/marketreg/mr-noaction/wells072904.htm