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
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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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
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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