[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Rules and Regulations]
[Pages 1735-1757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-654]
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DEPARTMENT OF THE TREASURY
17 CFR Part 405
RIN 1505-AA74
Office of the Assistant Secretary for Financial Markets;
Government Securities Act Regulations: Reports and Audit
AGENCY: Office of the Assistant Secretary for Financial Markets,
Treasury.
ACTION: Final rule.
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SUMMARY: The Department of the Treasury (``Department'' or
``Treasury'') is publishing an amendment to the reporting requirements
in Sec. 405.2 of the regulations issued under the Government Securities
Act of 1986 (``GSA''), as amended.\1\ 17 CFR 405.2 of the GSA
regulations requires entities registered with the Securities and
Exchange Commission (``SEC'') as specialized government securities
brokers and dealers (``registered government securities brokers and
dealers'') under section 15C(a)(2) of the Securities Exchange Act of
1934 (the ``Exchange Act'') \2\ to comply with the requirements of
section 240.17a-5 of the Exchange Act (SEC Rule 17a-5). On July 13,
1998, the SEC issued an amendment to SEC Rule 17a-5 that requires
general purpose broker-dealers to file two reports regarding their year
2000 (``Y2K'') readiness. The Department then published proposed Y2K
reporting rules on October 5, 1998, that essentially parallel the SEC's
Y2K reporting rules.\3\
\1\ 15 U.S.C. 78o-55
\2\ 15 U.S.C. 78o-5(a)(2).
\3\ 63 FR 53326 (October 5, 1998).
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EFFECTIVE DATE: February 11, 1999.
ADDRESSES: This final rule is available for downloading from the Bureau
of the Public Debt's Internet site at the following address:
www.publicdebt.treas.gov. It is also available for public inspection
and copying at the Treasury Department Library, FOIA Collection, Room
5030, Main Treasury Building, 1500 Pennsylvania Avenue, NW, Washington,
DC 20220. To visit the library, call (202) 622-0990 for an appointment.
FOR FURTHER INFORMATION CONTACT: Kerry Lanham (Acting Director) or
Chuck Andreatta (Senior Financial Advisor), (202) 219-3632, Government
Securities Regulations Staff, Bureau of the Public Debt, 999 E Street,
NW, Room 315, Washington, DC 20239-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On July 13, 1998, the SEC issued an amendment to SEC Rule 17a-5 \4\
that requires general purpose broker-dealers to file two reports
regarding their year 2000 (``Y2K'') readiness.\5\ Each report is to be
filed with the SEC and the appropriate designated examining authority.
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\4\ 17 CFR 240.17a-5.
\5\ Securities Exchange Act Release No. 34-40162, (July 2,
1998), 63 FR 37668 (July 13, 1998).
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In developing its amendment, the SEC identified six stages involved
in preparing for the year 2000: (1) awareness of potential Y2K
problems; (2) assessment of what steps the broker-dealer must take to
avoid Y2K problems; (3) implementation of the steps needed to avoid Y2K
problems; (4) internal testing of software designed to avoid Y2K
problems; (5) integrated or industry-wide testing of software designed
to avoid Y2K problems (including testing with other broker-dealers,
other financial institutions, and customers); and (6) implementation of
tested software that will avoid Y2K problems.\6\ The reports require
broker-dealers to address these six stages of preparation.
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\6\ Securities Exchange Act Release No. 34-39724 (March 5, 1998)
63 FR 12057 (March 12, 1998).
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For purposes of its amendment, the SEC identified ``year 2000
problems'' basically as problems arising from: (1) computer software
incorrectly reading the date ``01/01/00'' as being the year 1900 or
another incorrect year; (2) computer software incorrectly identifying a
date in the year 1999 or any year thereafter; (3) computer software
failing to detect that the year 2000 is a leap year; or (4) any other
computer software error that is directly or indirectly caused by (1),
(2), or (3). A failure by the securities industry to prevent or
minimize these types of errors could endanger the nation's capital
markets and place at risk the assets of millions of investors.
The reports will enable the SEC to monitor the steps broker-dealers
are taking to manage and avoid Y2K problems. The reports will also: (1)
enable the SEC staff to report to Congress in 1998 and 1999 regarding
the industry's preparedness; (2) supplement the SEC's examination
module for year 2000 issues; (3) help the SEC coordinate self-
regulatory organizations on industry-wide testing, implementation, and
contingency planning; and (4) help increase broker-dealer awareness
that they should be taking specific steps now to prepare for the year
2000.7
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\7\ Id.
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Treasury's final Y2K rules incorporate the SEC's final rules at
Sec. 240.17a-5(e)(5), with minor modifications. The same report (Form
BD-Y2K, Parts I and II) required under the SEC's rules is also required
under Treasury's rules. This report is required to be submitted to the
SEC and to the broker-dealer's designated examining authority. In
addition, the Department requests that a copy of the report be provided
directly to the Government Securities Regulations Staff.
[[Page 1736]]
II. Comments Received in Response to Proposed Rules
The Department received one comment letter in response to its
proposed amendments, from The Bond Market Association
(``Association'').8 The Association supports the
Department's proposals. The Association, however, asked for
clarification regarding the proposed exemption provided to a
specialized government securities broker-dealer (``15C firm,'' i.e.,
registered with the SEC under Section 15C of the Exchange Act) that has
an affiliated registered broker-dealer that files reports under the
SEC's Y2K reporting rules. The proposed rule said that such 15C firms
would be exempt from the Department's Y2K rules if the affiliate's
reports encompass Y2K issues that include the 15C firm's transactions
in, and holdings of, government securities. Specifically, the
Association was concerned about how the SEC and Treasury would know if
a 15C firm was relying on the exemption. The Association therefore
recommended that Treasury consider requiring 15C firms relying on the
exemption to write a letter to the SEC, Treasury and their designated
examining authority stating their reliance on the exemption, the name
of the affiliate that filed the report encompassing the information on
government securities transactions, and the date the report was filed.
This final rule basically adopts this recommendation.
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\8\ Letter from Paula H. Simpkins, Vice President and Assistant
General Counsel, The Bond Market Association, to Kerry Lanham,
Acting Director, Government Securities Regulations Staff, dated
November 4, 1998. The letter can be downloaded from the Bureau of
the Public Debt's website at www.publicdebt.treas.gov. It is also
available for inspection and copying at the Treasury Department
Library at the address provided earlier in the rule.
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The Association also asked for further clarification on which firms
would qualify for this exemption. Specifically, the Association said
that firms are concerned whether the reports already filed in August
1998 under the SEC's Y2K reporting rules would be deemed sufficient to
satisfy the conditions of the exemption. Such reports would be deemed
sufficient by the Department. If the affiliated firm filed a Form BD-
Y2K prior to the August 31, 1998 SEC deadline (either Part I or both
Parts I and II) and the report encompassed the 15C firm's government
securities transactions and holdings, that 15C firm is exempt from the
Department's Y2K reporting rules and will only be required to submit a
letter as discussed above. If the 15C firm does not have such an
affiliate that has already filed a Y2K report with the SEC, then the
15C firm must complete Form BD-Y2K under the Department's Y2K reporting
rules.
In a footnote to its comment letter, The Bond Market Association
informed the Department of its understanding that some 15C firms have
already completed and filed their Y2K readiness reports even though
they were not required to do so under the SEC's Y2K reporting rules.
Any such 15C firms will be viewed by the Department as having filed
their reports and will not have to file again. However, such firms
should submit a letter to the SEC and their designated examining
authority stating the date that the reports were submitted.
Finally, the Association recommended that Treasury consider
finalizing and publishing its final rule in the Federal Register before
November 15, 1998. The principal concern was that it would be difficult
to report ``as of'' a date that was prior to the publication date in
the Federal Register. To avoid this problem, the Department is
requiring the reports to be filed by February 28, 1999, to reflect the
status of a firm's Y2K readiness as of January 15, 1999.
III. Additional Analysis
At the same time that the SEC published its final Y2K reporting
rules for general-purpose broker-dealers, it also issued a companion
release to solicit comments on the feasibility of having an independent
public accountant perform an ``agreed-upon procedures engagement.'' The
proposed engagement would follow certain established procedures as an
independent check on a broker-dealer's assertions in its second filing
of Form BD-Y2K, which is due April 30, 1999.9 The SEC
subsequently adopted the proposed amendment for engagement of an
independent public accountant, with some modifications.10
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\9\ Securities Exchange Act Release No. 34-40164, (July 2, 1998)
63 FR 37709 (July 13, 1998).
\10\ Securities Exchange Act Release No. 34-40608, (October 28,
1998) 63 FR 59208 (November 3, 1998).
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Although the Department reserves the right to require that Y2K
reports be submitted again sometime during 1999, at this time the
reports will be required to be filed only once, by the February 28,
1999 deadline, with no independent accountant involvement. The
Department would expect, however, that an independent public
accountant's required ``material inadequacies'' letter would include a
discussion of Y2K issues if any potential problems in this regard were
to be found.
Copies of Form BD-Y2K are available in the SEC's Public Reference
Room at 450 Fifth Street, NW, Washington, DC 20549, or copies can be
obtained from the SEC's Internet website at the following address:
www.sec.gov.
IV. Notice Regarding Current Books and Records Requirements
Section 404.2 of the GSA regulations requires registered government
securities broker-dealers, with certain modifications, to comply with
SEC Rule 17a-3. This SEC rule requires registered broker-dealers to
make and keep current certain books and records relating to the broker-
dealer's business.11 In the preambles to its proposed and
final rules, the SEC warned that a broker-dealer with computer systems
that have Y2K problems may be deemed not to have accurate and current
records and in violation of Rule 17a-3.12 The Department
reiterates this advisory. The SEC also reminded broker-dealers that its
Rule 17a-11 13 requires every broker-dealer to promptly
notify the SEC of its failure to make and keep current books and
records.14 The Department reminds registered government
securities broker-dealers that they have this same requirement under
Sec. 405.3 of the GSA regulations.
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\11\ 17 CFR 240.17a-33.
\12\ 63 FR 12056, 12059 (March 12, 1998) and 63 FR 37668 (July
13, 1998).
\13\ 17 CFR 240.17a-11.
\14\ See supra note 8.
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V. Special Analyses
This rule does not meet the criteria for a ``significant regulatory
action'' under Executive Order 12866.
In the preamble to the proposed rules, regarding the requirement
under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.), the
Department certified that this amendment would not have a significant
economic impact on a substantial number of small entities. Accordingly,
a regulatory flexibility analysis was not prepared.
The collection of information under this final amendment consists
of the completion of Form BD-Y2K. This collection of information has
been reviewed and approved by OMB and assigned control number 3235-
0511.
List of Subjects in 17 CFR Part 405
Brokers, Government securities, Reporting and recordkeeping
requirements.
For the reasons set out in the preamble, 17 CFR Part 405 is amended
as follows:
PART 405--REPORTS AND AUDIT
1. The authority citation for Part 405 continues to read as
follows:
[[Page 1737]]
Authority: 15 U.S.C. 78o-5(b)(1)(B), (b)(1)(C), (b)(2), (b)(4).
2. Section 405.2 is amended by redesignating paragraphs (a)(11) and
(a)(12) as paragraphs (a)(15) and (a)(16), respectively, and adding new
paragraphs (a)(11) through (a)(14) to read as follows:
Sec. 405.2 Reports to be made by registered government securities
brokers and dealers.
(a) * * *
(11) Section 240.17a-5(e)(5)(ii) is modified to read as follows:
``(ii) No later than February 28, 1999, every registered government
securities broker or dealer shall file Part I of Form BD-Y2K
(Sec. 249.618 of this title) prepared as of January 15, 1999.''.
(12) Section 240.17a-5(e)(5)(iii) is modified to read as follows:
``(iii)(A) No later than February 28, 1999, every registered
government securities broker or dealer required to maintain minimum
liquid capital pursuant to Sec. 402.2(b)(1) or (b)(2) of this title as
of January 15, 1999, shall file Part II of Form BD-Y2K (Sec. 249.618 of
this title). Part II of Form BD-Y2K shall address each topic in
Sec. 240.17a-5(e)(5)(iv) as of January 15, 1999.
``(B) No later than April 30, 1999, every registered government
securities broker or dealer that was not required to file Part II of
Form BD-Y2K under paragraph (e)(12)(iii)(A) of this section but was
required to maintain minimum liquid capital pursuant to
Sec. 402.2(b)(1) or (b)(2) of this title at any time between January
16, 1999, and March 15, 1999, shall file Part II of Form BD-Y2K. Part
II of Form BD-Y2K shall address each topic in Sec. 240.17a-5(e)(5)(iv)
as of March 15, 1999.
``(C) Any registered government securities broker or dealer that
has an affiliated registered broker or dealer that files Form BD-Y2K
subject to 17 CFR 240.17a-5(e)(5) will be exempted from paragraphs
(e)(11) and (12) of this section, provided the affiliate's report
encompasses the registered government securities broker's or dealer's
transactions in, and holdings of, government securities. Any such
registered government securities broker or dealer shall submit a letter
stating its reliance on the exemption, the name of the affiliated
registered broker or dealer that filed the report encompassing its
government securities transactions and holdings, and the date the
report was filed. The letter shall be filed with the SEC's principal
office in Washington, D.C. and with the broker's or dealer's designated
examining authority.''.
(13) The report by an independent public accountant described in
Sec. 240.17a-5(e)(5)(vi) of this title, concerning a broker's or
dealer's process for addressing year 2000 problems, is not required.
(14) References to Form BD-Y2K mean Form BD-Y2K in Sec. 249.618 of
this title.
* * * * *
Dated: December 28, 1998.
Gary Gensler,
Assistant Secretary for Financial Markets.
Note: Form BD-Y2K does not appear in the Code of Federal
Regulations. Form BD-Y2K is attached as Appendix A to this document
as follows:
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[FR Doc. 99-654 Filed 1-11-99; 8:45 am]
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