[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11327-11328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4694]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 240
[Release No. 34-63949]
Technical Amendments to Rule 17a-8: Financial Recordkeeping and
Reporting of Currency and Foreign Transactions
AGENCY: Securities and Exchange Commission.
ACTION: Final rule; technical amendments.
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SUMMARY: The Securities and Exchange Commission (``Commission'') is
adopting technical amendments to Rule 17a-8 under the Securities and
Exchange Act of 1934 (``Exchange Act'') to update a reference within
the rule to the implementing regulations of the Currency and Foreign
Transactions Reporting Act of 1970, as amended (commonly referred to as
the Bank Secrecy Act or the ``BSA''). The BSA's implementing
regulations are promulgated and administered by the Financial Crimes
Enforcement Network (``FinCEN''), a bureau within the Department of the
Treasury. The reference to the BSA's implementing regulations in Rule
17a-8 is being updated in response to FinCEN's reorganization of those
regulations into a new chapter of the Code of Federal Regulations
(``CFR'').
DATES: Effective Date: March 1, 2011.
FOR FURTHER CONTACT INFORMATION: John J. Fahey, Office of Chief
Counsel, Division of Trading and Markets, Securities and Exchange
Commission; (202) 551-5550; 100 F Street, NE., Washington, DC 20549.
I. Supplementary Material
A. Background
The BSA,\1\ as implemented through regulations issued and
administered by FinCEN, requires financial institutions, including
broker-dealers registered with the Commission, to make, keep, retain
and report certain records that are useful for the purposes of
criminal, tax, or regulatory investigations or proceedings.\2\ FinCEN
administers the BSA and its implementing regulations, and the
Commission has oversight authority for broker-dealers' compliance with
the BSA's requirements.\3\ Exchange Act Rule 17a-8 requires broker-
dealers to comply with the reporting, recordkeeping and record
retention requirements of the BSA's implementing regulations as found
in part 103 of title 31 of the CFR.\4\
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\1\ 31 U.S.C. 5311 et seq.
\2\ See Section 17 of the Exchange Act (15 U.S.C. 78q) and 31
CFR 103.12 (redesignated as 31 CFR 1010.301).
\3\ See 31 CFR 103.56(a)(6) (redesignated as 31 CFR
1010.810(a)(6)).
\4\ See Exchange Act Release No. 18321 (December 10, 1981); 46
FR 61454 (December 17, 1981) (``Rule 17a-8 Adopting Release'').
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FinCEN recently reorganized the BSA's implementing regulations into
a new chapter within title 31 of the CFR.\5\ As part of this
reorganization, FinCEN moved the regulations reflected in 31 CFR Part
103 into 31 CFR Chapter X. When Chapter X becomes effective on March 1,
2011, 31 CFR Part 103 will be deleted, thereby rendering the references
to ``part 103 of title 31'' of the CFR in Exchange Act Rule 17a-8
incorrect.
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\5\ Transfer and Reorganization of Bank Secrecy Act Regulation;
Proposed Rule, 73 FR 66414 (November 7, 2008); Transfer and
Reorganization of Bank Secrecy Act Regulation; Final Rule, 75 FR
65806 (October 26, 2010).
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B. Technical Amendments to Rule 17a-8
The Commission is amending Rule 17a-8 to conform the current CFR
references to the BSA's implementing regulations to those that will
apply as a result of FinCEN's reorganization of these regulations.
Accordingly, the two references to ``part 103 of title 31'' in Exchange
Act Rule 17a-8 will be
[[Page 11328]]
replaced with references to ``Chapter X of title 31.''
II. Certain Findings
Under the Administrative Procedure Act (``APA''), notice of
proposed rulemaking is not required when an agency, for good cause,
finds ``that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' \6\ The Commission
is making technical amendments to Rule 17a-8 to update the reference to
the BSA implementing regulations. The Commission finds that because the
amendment is technical in nature and is being made solely to reflect
the changes in applicable references to the BSA's implementing
regulations, publishing the amendment for comment is unnecessary.\7\
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\6\ 5 U.S.C. 553(b).
\7\ For similar reasons, the amendments do not require analysis
under the Regulatory Flexibility Act (``RFA'') or analysis of major
rule status under the Small Business Regulatory Enforcement Fairness
Act. See 5 U.S.C. 601(2) (for purposes of RFA analysis, the term
``rule'' means any rule for which the agency publishes a general
notice of proposed rulemaking); and 5 U.S.C. 804(3)(C) (for purposes
of Congressional review of agency rulemaking, the term ``rule'' does
not include any rule of agency organization, procedure or practice
that does not substantially affect the rights or obligations of non-
agency parties).
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The APA also requires publication of a rule at least 30 days before
its effective date unless the agency finds otherwise for good cause.\8\
Due to the need to coordinate the effectiveness of the amendment to
Rule 17a-8 with the effective date of FinCEN's rule reorganization
scheduled to take effect on March 1, 2011, and for the same reasons
described above with respect to notice and opportunity for comment, the
Commission finds that there is good cause for these technical
amendments to take effect on March 1, 2011.
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\8\ See 5 U.S.C. 553(d)(3).
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III. Consideration of Competitive Effects of Amendment
Section 3(f) of the Exchange Act,\9\ provides that whenever the
Commission is engaged in rulemaking and is required to consider or
determine whether an action is necessary or appropriate in the public
interest, the Commission shall consider, in addition to the protection
of investors, whether the action will promote efficiency, competition,
and capital formation. Section 23(a)(2) of the Exchange Act requires
the Commission, in adopting rules under the Exchange Act, to consider
the competitive effects of such rules, if any, and to refrain from
adopting a rule that would impose a burden on competition not necessary
or appropriate in the furtherance of the purposes of the Exchange
Act.\10\
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\9\ 15 U.S.C. 78c(f).
\10\ 15 U.S.C. 78w(a)(2).
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Because the amendments to Exchange Act Rule 17a-8 are technical in
nature, and do not impose any additional requirements beyond those
already required, we do not anticipate that the amendments would have a
significant effect on efficiency, competition, or capital formation,
and we do not anticipate that any competitive advantages or
disadvantages would be created.
IV. Statutory Authority
We are adopting this technical amendment to Rule 17a-8 under the
authority set forth in the Exchange Act, in particular, Sections 3, 10,
15, 17 and 23 thereof.\11\
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\11\ 15 U.S.C. 78c, 78j, 78o, 78q, and 78w.
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List of Subjects in 17 CFR Part 240
Broker-dealers, Reporting and recordkeeping requirements,
Securities.
Text of Amendments
For the reasons set out in the preamble, Title 17, Chapter II of
the Code of Federal Regulations is amended as follows:
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
0
1. The authority citation for Part 240 continues to read, in part, as
follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3,
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i,
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5,
78w, 78x, 78ll, 78mm, 80a- 20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4,
80b-11, and 7201 et seq., and 18 U.S.C. 1350, unless otherwise
noted.
* * * * *
0
2. Amend Sec. 240.17a-8 by removing the phrase ``part 103'' in the two
places it appears and adding in its place ``Chapter X.''
Dated: February 23, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-4694 Filed 3-1-11; 8:45 am]
BILLING CODE 8011-01-P