
[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11327-11328]
From the Federal Register Online via the Government Printing 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


