2016-27525

Federal Register, Volume 81 Issue 221 (Wednesday, November 16, 2016)

[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)]

[Rules and Regulations]

[Pages 80563-80567]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2016-27525]

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Rules and Regulations

Federal Register

________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents

having general applicability and legal effect, most of which are keyed

to and codified in the Code of Federal Regulations, which is published

under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

Prices of new books are listed in the first FEDERAL REGISTER issue of each

week.

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Federal Register / Vol. 81, No. 221 / Wednesday, November 16, 2016 /

Rules and Regulations

[[Page 80563]]

COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 3

RIN 3038-AE49

Chief Compliance Officer Annual Report Requirements for Futures

Commission Merchants, Swap Dealers, and Major Swap Participants;

Amendments to Filing Dates

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or

``CFTC'') is amending its regulations regarding the timing for

furnishing to the Commission the chief compliance officer (``CCO'')

annual reports of futures commission merchants (``FCMs''), swap dealers

(``SDs''), and major swap participants (``MSPs'') (collectively,

``Registrants''). The Commission is also amending its regulations by

delegating to the Director of the Division of Swap Dealer and

Intermediary Oversight (``DSIO'') authority to grant extensions to the

CCO annual report filing deadline.

DATES: This rule will become effective November 16, 2016.

FOR FURTHER INFORMATION CONTACT: Eileen T. Flaherty, Director, 202-418-

5326, [email protected]; Erik Remmler, Deputy Director, 202-418-7630,

[email protected]; Laura Gardy, Associate Director, 202-418-7645,

[email protected]; or Pamela M. Geraghty, Special Counsel, 202-418-5634,

[email protected], Division of Swap Dealer and Intermediary Oversight,

Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Proposed Rule

On August 12, 2016, the Commission published a Notice of Proposed

Rulemaking (``Proposal'') \1\ to amend Commission Regulation 3.3(f)

regarding when Registrants must furnish to the Commission annual

reports describing, among other things, their compliance with the

Commodity Exchange Act (``CEA'') and CFTC regulations (the ``CCO Annual

Reports'').\2\ The Proposal sought to extend the time period for

furnishing the CCO Annual Report to the Commission from 60 days to 90

days after a Registrant's fiscal year-end by codifying the ongoing

relief most recently provided to Registrants in CFTC Staff Letter No.

15-15.\3\ The Proposal would permit an FCM to furnish its CCO Annual

Report to the Commission not more than 30 days after submission of its

Form 1-FR-FCM or Financial Operational Combined Uniform Single Report

(``FOCUS Report''), and would permit an SD or MSP to furnish its CCO

Annual Report to the Commission not more than 90 days after its fiscal

year-end until such time as the Commission adopts and implements rules

establishing the time for filing the annual financial condition report

required under CEA section 4s(f). The Proposal also contemplated adding

new paragraph (f)(2)(ii) to clarify the filing requirements for SDs and

MSPs located in a jurisdiction for which the Commission has issued a

comparability determination and which elect to file reports in

accordance with that determination (``Substituted Compliance

Registrants''). Finally, the Proposal added new paragraph (h) to

delegate to the Director of DSIO authority to grant extensions to the

CCO Annual Report filing deadline.

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\1\ Chief Compliance Officer Annual Report Requirements for

Futures Commission Merchants, Swap Dealers, and Major Swap

Participants; Amendments to Filing Dates, 81 FR 53343 (Aug. 12,

2016).

\2\ CEA section 4s(k)(3)(A)(i), 7 U.S.C. 6s(k)(3)(A)(i),

requires CCOs for SDs and MSPs, in accordance with rules prescribed

by the Commission, to prepare and sign an annual report describing,

among other things, the SD's or MSP's compliance with the CEA and

CFTC regulations. CEA section 4s(k)(3)(B)(i), 7 U.S.C.

6s(k)(3)(B)(i), requires the CCO Annual Report to accompany each

appropriate financial report of the SD or MSP required to be

furnished to the Commission. CEA section 4d(d), 7 U.S.C. 6d(d),

requires CCOs of FCMs to ``perform such duties and

responsibilities'' as are established by Commission regulation or

rules of a registered futures association. Regulations 3.3(e) and

(f), 17 CFR 3.3(e) and (f), codify the duty to furnish the CCO

Annual Report to the Commission for all Registrants.

\3\ CFTC Letter No. 15-15, No-Action Relief for Futures

Commission Merchants, Swap Dealers, and Major Swap Participants from

Compliance with the Timing Requirements of Commission Regulation

3.3(f)(2) Relating to Annual Reports by Chief Compliance Officers

(Mar. 27, 2015), available at http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/15-15.pdf.

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The Commission generally requested comments on the Proposal and

also solicited comments on certain specific matters.\4\ For example,

the Commission solicited comments on the appropriateness of permitting

Registrants an additional 30 days to furnish their CCO Annual Reports

to the Commission, as well as the Commission's application of

Regulation 3.3(f)(2) to Substituted Compliance Registrants.

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\4\ See 81 FR at 53346.

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II. Summary of Comments

In response to the Proposal, the Commission received one comment

submitted jointly by the Futures Industry Association (the ``FIA''),

International Swaps and Derivatives Association (``ISDA''), and the

Securities Industry and Financial Markets Association (``SIFMA'')

(collectively, ``Commenters'') on behalf of their FCM, SD, and MSP

member firms.\5\ The Commenters were generally supportive of the

Proposal and agreed with the basic premise that the statutory

requirement under CEA section 4s(k)(3)(B)(i) requiring CCO Annual

Reports to ``accompany'' each appropriate financial report does not

require a simultaneous filing of the two reports.

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\5\ Letter from FIA, ISDA, and SIFMA (Sept. 12, 2016). This

comment letter is available on the Commission's Web site at http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1729.

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The Commenters made several suggestions aimed at more closely

aligning the Proposal with the relief provided in CFTC Staff Letter No.

15-15 and providing greater certainty for all SDs. First, Commenters

cautioned against linking the filing deadline for the CCO Annual Report

to the submission date for the applicable annual financial reports. The

Commenters stated that using the submission date as a reference point,

rather than the deadline date, could have the practical effect of

reducing the time period for filing the CCO Annual Report if a

Registrant chose to submit

[[Page 80564]]

their financial report early.\6\ Commenters asserted that this outcome

would be problematic because the inherent differences, in both

substance and process, between CCO Annual Reports and financial reports

affect the time required to adequately prepare each report. As a

result, linking the CCO Annual Report deadline to the submission of

financial reports would require new coordination and processes between

the distinct groups responsible for each report's preparation.\7\ To

address this technical timing issue, the Commenters recommended that

the filing of the CCO Annual Report be required 30 days after the

regulatory deadline for filing the financial reports.\8\

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\6\ Id. at 2.

\7\ Id.

\8\ Id.

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The Commenters further noted that under the Commission's proposed

Capital Requirements of Swap Dealers and Major Swap Participants

rulemaking,\9\ prudentially regulated SDs would not be required to

comply with the Commission's financial condition report

requirement.\10\ As such, Commenters explained that under language in

the Proposal, which ties the submission of the CCO Annual Report with

the submission of applicable financial reports, prudentially regulated

SDs would have a different CCO Annual Report deadline than other

SDs.\11\ Commenters suggested that, in order to achieve consistency

among all SDs, the Commission should ``set a 90-day deadline for SDs

that are not subject to the Commission's proposed financial reporting

rule.'' \12\

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\9\ See Capital Requirements of Swap Dealers and Major Swap

Participants, 76 FR 27802, 27838 (proposed May 12, 2011).

\10\ Letter from FIA, ISDA, and SIFMA at 2.

\11\ Id.

\12\ Id.

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Finally, regarding application of the Proposal to Substituted

Compliance Registrants, the Commenters requested that the Commission

provide ``supplemental guidance as to what constitutes a `specifically

identifiable completion date''' for Substituted Compliance Registrants

who file comparable annual reporting information (hereinafter,

``Comparable Annual Report'').\13\ The Commenters indicated that

different jurisdictions address reporting deadlines in many different

ways that can change over time and from year to year. Accordingly, it

was not clear to Commenters how the Proposal language would apply in

all instances.

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\13\ Id. at 3.

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III. The Final Rule

The Commission has considered the comments it received in response

to the Proposal. Upon consideration of Commenters' suggestions, the

Commission's implementation experience,\14\ and the current absence of

financial condition reporting requirements for SDs under Commission

regulations,\15\ the Commission is adopting a final rule that modifies

Regulation 3.3(f)(2)(i) to give all Registrants up to 90 days after

their fiscal year-end to furnish the CCO Annual Report to the

Commission. Because the CEA section 4s(k)(3)(B) contemplates year-end

filing for financial reports and CCO Annual Reports, the final rule

ensures that the two reports will accompany one another at the

Commission within a proximate and predictable timeframe. The Commission

believes that providing all Registrants a deadline that follows their

annual fiscal year meets Congressional intent and achieves fairness and

consistency across all Registrants, while also codifying longstanding

no-action relief. The final rule text effectively results in the same

outcome as the Proposal, but does so in a manner that is simple and

direct. The Commission is adopting Regulation 3.3(f)(2)(ii) as

proposed, which incorporates the modified language of Regulation

3.3(f)(2)(i), and also clarifying its application to Substituted

Compliance Registrants. The Commission received no comments on the

proposed delegation of authority to the Director of DSIO to grant

extensions to the CCO annual report filing deadline, and is adopting

Regulation 3.3(h) as proposed.

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\14\ See 81 FR 53343, 53344 n.7.

\15\ Id. at 53345 n.14.

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A. CCO Annual Report Filing Deadline

The Commission believes that the language in CEA section

4s(k)(3)(B) requiring the CCO to ``annually'' prepare a compliance

report to accompany each ``appropriate'' financial report does not

require a simultaneous filing of the two reports to achieve its

intended purpose. Rather, the intention of the statute is to require

the CCO Annual Report to follow an annual reporting cycle in line with

the financial reporting cycle aimed at providing the Commission, and a

Registrant's senior management, with a timely self-evaluation and

internal assessment of the Registrant's compliance program.\16\ In a

similar manner, under Commission regulations, when entities are subject

to capital adequacy requirements, periodic financial reporting is the

mechanism employed to demonstrate compliance. Annual and other

financial reporting requirements provide the Commission and self-

regulatory organizations information about the financial condition of

the registrant. As observed by the Commission and highlighted by

Commenters, the CCO Annual Report and annual financial reports, though

they serve similar informational goals, are inherently different and

require different processes and expertise to produce. Accordingly,

while each ought to be completed on an annual reporting cycle and

provided to the Commission in temporal proximity, their submission to

the Commission need not occur simultaneously to achieve their intended

purpose.

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\16\ See Designation of a Chief Compliance Officer; Required

Compliance Policies; and Annual Report of a Futures Commission

Merchant, Swap Dealer, or Major Swap Participant, 75 FR 70881, 70883

(proposed Nov. 19, 2010).

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Permitting all Registrants to submit their CCO Annual Report to the

Commission within 90 days after their fiscal year-end meets the

statutory intent of having the CCO Annual Report follow an annual

reporting cycle in line with the financial reporting cycle while

providing fair and consistent treatment across all Registrants. The

final rule also ensures that Registrants may continue to leverage their

existing report preparation processes that were developed while the

Commission's no-action relief was in place. This ensures that there is

effectively no change in the burden and expense of preparing the CCO

Annual Reports as a result of the final rule.

B. Deadline for Substituted Compliance Registrants

With respect to the application of new paragraph (f)(2)(ii) to

Substituted Compliance Registrants, the Proposal provided that

Substituted Compliance Registrants whose home jurisdictions'

regulations identify a specific completion or due date have 15 days

after that date to submit their Comparable Annual Report to the CFTC.

If a Substituted Compliance Registrant's home jurisdiction does not

require or is silent as to a particular completion or due date for the

Comparable Annual Report, then the Substituted Compliance Registrant

must furnish its Comparable Annual Report to the Commission not more

than 90 days after its fiscal year-end.

As described above, the Commenters requested additional guidance on

the meaning of ``specifically identifiable completion date.'' The

Commission is clarifying that the completion or due date could be set

by the Substituted Compliance Registrant's home

[[Page 80565]]

jurisdiction's regulations, or that the Substituted Compliance

Registrant's applicable regulatory authority could otherwise announce a

modified completion or due date consistent with the practices and

procedures of the applicable regulatory regime. The Commission

anticipates a Substituted Compliance Registrant will timely inform DSIO

of any such modifications to their completion or due date. Whether the

completion or due date remains static from year to year, or is subject

to annual modification, the Commission intends to defer to the

Substituted Compliance Registrant's home jurisdiction in this regard.

The Commission, however, is concerned about the possibility of

significant reporting delays or deferrals that may apply to a specific

Registrant. Accordingly, the Commission expects that a Substituted

Compliance Registrant will inform the Commission of any delays or

deferrals beyond the deadlines set by their home jurisdiction

regulations or applicable regulatory authority that would extend that

particular Registrant's Comparable Annual Report filing date, and seek

appropriate relief under Regulation 3.3(f)(5), as necessary.

C. Delegation of Authority to the Director of DSIO

The Commission received no comments on its proposal to delegate to

the Director of DSIO, or such other employee(s) that the Director may

designate, the authority to grant extensions of time to file CCO Annual

Reports. Accordingly, the Commission is adopting new paragraph (h) as

proposed.

IV. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act \17\ (``RFA'') requires that

agencies consider whether the rules they propose will have a

significant economic impact on a substantial number of small entities

and, if so, provide a regulatory flexibility analysis reflecting the

impact. In the Proposal, the Commission certified that the Proposal

would not have a significant economic impact on those entities. The

Commission received no comments with respect to the RFA.

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\17\ 5 U.S.C. 601 et seq.

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As discussed in the Proposal, the final rule amends the filing

deadline for CCO Annual Reports of FCMs, SDs, and MSPs and clarifies

the filing deadline for Comparable Annual Reports. The final rule

affects FCMs, SDs, and MSPs that are required to be registered with the

Commission. The Commission has previously established certain

definitions of ``small entities'' to be used in evaluating the impact

of its regulations on small entities in accordance with the RFA, and

has previously determined that FCMs, SDs, and MSPs are not small

entities for purposes of the RFA.\18\ Therefore, the Commission

believes that the final rule will not have a significant economic

impact on a substantial number of small entities. Accordingly, the

Chairman, on behalf of the Commission, hereby certifies, pursuant to 5

U.S.C. 605(b), that the final rule being published today by this

Federal Register release will not have a significant economic impact on

a substantial number of small entities.

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\18\ See Policy Statement and Establishment of Definitions of

``Small Entities'' for Purposes of the Regulatory Flexibility Act,

47 FR 18618, 18619 (Apr. 30, 1982) (FCMs); Further Definition of

``Swap Dealer,'' ``Security-Based Swap Dealer,'' ``Major Swap

Participant,'' ``Major Security-Based Swap Participant'' and

``Eligible Contract Participant,'' 77 FR 30596, 30701 (May 23, 2012)

(SDs and MSPs).

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B. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (``PRA'') \19\ provides that a

federal agency may not conduct or sponsor, and a person is not required

to respond to, a collection of information unless it displays a

currently valid control number issued by the Office of Management and

Budget (``OMB''). As discussed in the Proposal, the final rule contains

a collection of information for which the Commission has previously

received a control number from the Office of Management and Budget

(``OMB''). The title for this collection of information is ``Annual

Report for Chief Compliance Officer of Registrants, OMB control number

3038-0080.'' As discussed in the Proposal, the Commission believes that

this final rule will not impose any new information collection

requirements that require approval of OMB under the PRA. As a general

matter, the final rule allows Registrants up to 90 days after the end

of their fiscal years, and certain Substituted Compliance Registrants

with up to 15 days after the date on which the Comparable Annual Report

must be completed under the requirements of their home jurisdiction, to

file the CCO Annual Report and Comparable Annual Reports, respectively.

As such, the final rule does not, by itself, impose any new burden or

any new information collection requirements in addition to those that

already exist in connection with the preparation and delivery of the

CCO Annual Report pursuant to part 3 of the Commission's regulations.

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\19\ 44 U.S.C. 3501 et seq.

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C. Cost-Benefit Considerations

1. Background

As discussed above, the Commission is adopting amendments to the

filing requirements for CCO Annual Reports in Regulation 3.3 that: (1)

Increase the amount of time registrants have to file their CCO Annual

Reports with the Commission; and (2) clarify the filing requirements

for Comparable Annual Reports. The baseline for this cost and benefit

consideration is existing Commission Regulation 3.3.

2. Costs

The final rule does not change the report contents or require any

additional actions to be taken by Registrants. The 90 days (or up to 15

days after the date on which a Comparable Annual Report must be

completed under applicable home jurisdiction standards that allow more

time) provided by the final rule lengthens the time before senior

management or the board of the Registrants and the Commission may

receive the CCO Annual Reports. The additional time to furnish the

reports should not materially impact regulatory oversight given that

the purpose of the reports is to provide a status update for the

Registrant's compliance activities over the course of the preceding

fiscal year and planned changes for the coming year. The reports

generally do not serve to address crisis situations for which immediacy

is critical. Therefore, the additional time allowed should not

materially impact the usefulness of the information in the reports.\20\

The Commission had no other information available to it indicating that

changing the filing deadline would measurably change the cost to

prepare the CCO Annual Reports. Accordingly, the Commission believes

that the final rule does not impose any additional costs on any other

market participants, the markets themselves, or the general public. In

the Proposal, the Commission solicited comments regarding how the costs

associated with the CCO Annual Reports could change as a result of

adopting the Proposal, but did not receive any.

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\20\ The CCO Annual Report must contain a description of

material non-compliance events that occurred over the review period.

However, reporting on those events in the CCO Annual Report provides

transparency regarding the effectiveness of the implementation of

the compliance program over the preceding year for management and

the CFTC.

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3. Benefits

The Commission believes that the final rule provides relief for

Registrants

[[Page 80566]]

from time pressures in preparing and filing their CCO Annual Reports.

The additional time provided will allow Registrants to more carefully

complete their internal processes used to develop the broad variety of

information needed for the reports resulting in more accurate and

complete reports. The Commission solicited comments regarding the

nature of any benefits that could result from adoption of the Proposal,

but did not receive any specific comments. Commenters were generally

appreciative of the Commission's effort to improve the process.\21\

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\21\ Letter from FIA, ISDA, and SIFMA at 1.

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4. Section 15(a) Factors

Section 15(a) of the CEA requires the Commission to consider the

costs and benefits of its actions before promulgating a regulation

under the CEA or issuing certain orders.\22\ Section 15(a) further

specifies that the costs and benefits shall be evaluated in light of

five broad areas of market and public concern: (1) Protection of market

participants and the public; (2) efficiency, competitiveness, and

financial integrity of futures markets; (3) price discovery; (4) sound

risk management practices; and (5) other public interest

considerations. The Commission considered the costs and benefits

resulting from its discretionary determinations with respect to the

section 15(a) factors.

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\22\ 7 U.S.C. 19(a).

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a. Protection of Market Participants and the Public

The Commission recognizes that there are trade-offs between

reducing regulatory burdens and ensuring that the Commission has

sufficient, timely information to fulfill its regulatory mission. The

final rule is intended to reduce some of the regulatory burdens on

Registrants. While the final rule will delay the time in which the

Commission will receive the CCO Annual Reports, the delay is relatively

short given that the information in the reports looks back over the

entire year-long reporting period, and identifies planned improvements

for the coming year. Accordingly, the Commission believes that the

short delay will not affect the protection of market participants and

the public.

b. Efficiency, Competitiveness, and Financial Integrity of Markets

The Commission believes that the final rule could improve

allocational efficiency for participants in the market by reducing the

burden of preparing the CCO Annual Report in a shorter time-frame

thereby allowing them to allocate compliance resources more efficiently

over the report preparation period. The Commission believes that the

final rule will not have any market efficiency, competitiveness, or

market integrity impacts because the reports address internal

compliance programs of each Registrant and are not publicly available.

c. Price Discovery

The Commission believes that the final rule does not impact on

price discovery. Given that the final rule affects only the timing of

when the CCO Annual Reports are filed with the Commission and the CCO

Annual Reports generally would not contain trade information or be

available to the public, the final rule does not affect price

discovery.

d. Sound Risk Management Practices

The Commission believes that the final rule will not have a

meaningful effect on the risk management practices of Registrants.

While the CCO Annual Reports may discuss certain risk management

aspects related to Registrants' compliance programs, the final rule

only amends the timing of delivery of the reports to the Commission,

not the contents of the reports. As described above under subsection

4.a, the short delay in delivery of the reports provided for by the

final rule is not significant given the nature of the information

included in the report and allowing additional time to prepare CCO

Annual Reports might allow Registrants to prepare better reports that

more effectively address the information contained therein.

e. Other Public Interest Considerations

The Commission has not identified any other public interest

considerations for this rulemaking.

List of Subjects in 17 CFR Part 3

Administrative practice and procedure, Brokers, Commodity futures,

Major swap participants, Reporting and recordkeeping requirements, Swap

dealers.

For the reasons stated in the preamble, the Commodity Futures

Trading Commission amends 17 CFR part 3 as follows:

PART 3--REGISTRATION

0

1. The authority citation for part 3 is revised to read as follows:

Authority: 5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6a, 6b, 6b-1, 6c,

6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a,

13b, 13c, 16a, 18, 19, 21, and 23, as amended by Title VII of Pub.

L. 111-203, 124 Stat. 1376.

0

2. Amend Sec. 3.3 as follows:

0

a. Revise paragraph (f)(2); and

0

b. Add paragraph (h).

The revision and addition read as follows:

Sec. 3.3 Chief compliance officer.

* * * * *

(f) * * *

(2)(i) Except as provided in paragraph (f)(2)(ii) of this section,

the annual report shall be furnished electronically to the Commission

not more than 90 days after the end of the fiscal year of the futures

commission merchant, swap dealer, or major swap participant.

(ii) The annual report of a swap dealer or major swap participant

that is eligible to comply with a substituted compliance regime for

paragraph (e) of this section pursuant to a comparability determination

of the Commission may be furnished to the Commission electronically up

to 15 days after the date on which the comparable annual report must be

completed under the requirements of the applicable substituted

compliance regime. If the substituted compliance regime does not

specify a date by which the comparable annual report must be completed,

then the annual report shall be furnished to the Commission by the date

specified in paragraph (f)(2)(i) of this section.

* * * * *

(h) Delegation of authority. The Commission hereby delegates to the

Director of the Division of Swap Dealer and Intermediary Oversight, or

such other employee or employees as the Director may designate from

time to time, the authority to grant extensions of time, as set forth

in paragraph (f)(5) of this section. Notwithstanding such delegation,

in any case in which a Commission employee delegated authority under

this paragraph believes it appropriate, he or she may submit to the

Commission for its consideration the question of whether an extension

of time should be granted. The delegation of authority in this

paragraph shall not prohibit the Commission, at its election, from

exercising the authority set forth in paragraph (f)(5) of this section.

Issued in Washington, DC, on November 10, 2016, by the

Commission.

Robert N. Sidman,

Deputy Secretary of the Commission.

Note: The following appendix will not appear in the Code of

Federal Regulations.

[[Page 80567]]

Appendix to Chief Compliance Officer Annual Report Requirements for

Futures Commission Merchants, Swap Dealers, and Major Swap

Participants; Amendments to Filing Dates--Commission Voting Summary

On this matter, Chairman Massad and Commissioners Bowen and

Giancarlo voted in the affirmative. No Commissioner voted in the

negative.

[FR Doc. 2016-27525 Filed 11-15-16; 8:45 am]

BILLING CODE 6351-01-P

 

Last Updated: November 16, 2016