2708 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

1 75 FR 71379. 

2Public Law 111–203, 124 Stat. 1376 (2010). The 

text of the Dodd-Frank Act may be accessed through 

the Commission’s Web site, http://www.cftc.gov. 

3The CEA and the Commission’s regulations 

issued thereunder similarly may be accessed 

through the Commission’s Web site. 

4Regulation 23.21(c) makes clear that each 

affiliate of an insured depository institution 

described in Dodd-Frank Act Section 716(c) is 

subject to the registration provisions under the CEA 

and Part 3 of the regulations as an SD, if the affiliate 

is an SD, or as an MSP, if the affiliate is an MSP. 

The Commission also is issuing today such 

amendments to Part 3 of its regulations as may be 

project area’s largest harassment zone. 

Pinnipeds may occasionally haul out in 

areas closer to the proposed project, but 

not with any regularity. Marine 

mammals approaching the action area 

would likely be traveling or 

opportunistically foraging. The amount 

of take NMFS proposes to authorize, is 

considered small (less than one percent) 

relative to the estimated populations of 

91,000 harbor seals, 250,000 gray seals, 

89,054 harbor porpoises, and 63,000 

Atlantic white-sided dolphins. Marine 

mammals may be temporarily adversely 

impacted by pile driving noise. 

However, some marine mammals are 

expected to avoid the area when pile 

driving is occurring, thereby reducing 

exposure and impacts, and mitigation 

will further ensure that injury is 

unlikely to occur (although it would not 

be expected even in the absence of 

mitigation given the source levels, 

density of animals in the area, and short 

duration of the activities). Pile driving 

activities are expected to occur for about 

7–12 days total (up to 180 minutes per 

day). There is no anticipated effect on 

annual rates of recruitment or survival 

of affected marine mammals. Based on 

the application and subsequent analysis, 

the impact of the described pile driving 

operations may result in, at most, shortterm modification of behavior by small 

numbers of marine mammals within the 

action area. Marine mammals may avoid 

the area or temporarily alter their 

behavior at time of exposure. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

mitigation and monitoring measures, 

NMFS preliminarily determines that 

ORPC’s proposed pile driving activities 

will result in the incidental take of 

small numbers of marine mammals, by 

Level B harassment only, and that the 

total taking will have a negligible 

impact on the affected species or stocks. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. 

Endangered Species Act (ESA) 

No marine mammal species listed 

under the ESA are anticipated to occur 

within the action area. Therefore, no 

effects to listed species are expected and 

section 7 consultation under the ESA is 

not required. 

National Environmental Policy Act 

(NEPA) 

In compliance with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.), as implemented by 

the regulations published by the 

Council on Environmental Quality (40 

CFR parts 1500–1508), and NOAA 

Administrative Order 216–6, NMFS is 

preparing an Environmental Assessment 

(EA) to consider the environmental 

impacts of issuance of a one-year IHA. 

Upon completion, this EA will be 

available on the NMFS Web site listed 

in the beginning of this document (see 

ADDRESSES). 

Dated: January 13, 2012. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2012–991 Filed 1–18–12; 8:45 am] 

BILLING CODE 3510–22–P 

COMMODITY FUTURES TRADING 

COMMISSION 

Performance of Registration Functions 

by National Futures Association With 

Respect To Swap Dealers and Major 

Swap Participants 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Notice and Order. 

SUMMARY: The Commodity Futures 

Trading Commission (Commission) is 

authorizing the National Futures 

Association (NFA), effective January 19, 

2012, in accordance with the standards 

established by the Commodity Exchange 

Act (CEA) and the Commission’s 

regulations issued thereunder, to take 

the following actions: To process and 

grant applications for registration and 

withdrawals of registration with respect 

to swap dealers (SDs) and major swap 

participants (MSPs), and to notify of 

provisional registration; to confirm 

initial compliance with requirements 

applicable to SDs and MSPs under CEA 

Section 4s; to conduct proceedings to 

deny, condition, suspend, restrict or 

revoke the registration of any SD or MSP 

or of any applicant for registration in 

either category; to maintain records 

regarding SDs and MSPs; and to serve 

as the official custodian of those 

Commission records. 

DATES: Effective date: January 19, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Barbara S. Gold, Associate Director, 

Christopher W. Cummings, Special 

Counsel, or Elizabeth Miller, AttorneyAdvisor, Division of Swap Dealer and 

Intermediary Oversight, 1155 21st Street 

NW., Washington, DC 20581. Telephone 

Number: (202) 418–6700 and electronic 

mail: bgold@cftc.gov, 

ccummings@cftc.gov, or 

emiller@cftc.gov. 

SUPPLEMENTARY INFORMATION

I. Authority and Background 

In a separate document published 

elsewhere in today’s Federal Register, 

the Commission is issuing final 

regulations regarding the registration 

process for SDs and MSPs. These final 

regulations follow the publication of 

proposed regulations on November 23, 

2010,1 and they implement the 

registration requirements for SDs and 

MSPs set forth in the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (Dodd-Frank Act).2 Specifically, 

Section 731 of the Dodd-Frank Act 

added Sections 4s(a) and 4s(b) to the 

CEA 3 to provide for the registration of 

SDs and MSPs in pertinent part as 

follows: 

(a) REGISTRATION.— 

(1) SWAP DEALERS.—It shall be 

unlawful for any person to act as a swap 

dealer unless the person is registered as 

a swap dealer with the Commission. 

(2) MAJOR SWAP PARTICIPANTS.— 

It shall be unlawful for any person to act 

as a major swap participant unless the 

person is registered as a major swap 

participant with the Commission. 

(b) REQUIREMENTS.— 

(1) IN GENERAL.—A person shall 

register as a swap dealer or major swap 

participant by filing a registration 

application with the Commission. 

(2) CONTENTS.— 

(A). IN GENERAL.—The application 

shall be made in such form and manner 

as prescribed by the Commission, and 

shall contain such information, as the 

Commission considers necessary 

concerning the business in which the 

applicant is or will be engaged. 

Pursuant to CEA Sections 4s(a) and 

4s(b), then, the Commission is today 

issuing Regulations 23.21(a) and 

23.21(b), which respectively subject 

each person who meets the definition of 

an SD or MSP to the registration 

provisions under the CEA and to Part 3 

of the Commission’s regulations.4

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2709 

necessary to accommodate the registration of SDs 

and MSPs thereunder. 5Sections 4s(e) through 4s(k), respectively, added 

to the CEA by Dodd-Frank Act Section 731. 6Section 4s(l), added to the CEA by Dodd-Frank 

Act Section 724(c). 7Section 17(o)(1) excepts from this authority a 

member who is a ‘‘registered entity.’’ CEA Section 

1a(40) defines this term to include, among other 

persons, a board of trade designated as a contract 

market under CEA Section 5 and a swap execution 

facility registered under CEA Section 5h. 

Although CEA Section 17 provides that ‘[a]ny 

association of persons may be registered with the 

Commission as a registered futures association,’’ to 

date, NFA is the sole association that has applied 

for and has been granted registration as a futures 

association with the Commission. 

8See 49 FR 39593 (Oct. 9, 1984). 9See 48 FR 35158 (Aug. 3, 1983). 10See 54 FR 19556 (May 8, 1989). 11See 51 FR 34490 (Sep. 29, 1986). 12See 58 FR 19657 (Apr. 15, 1993). 13See 75 FR 55310 (Sep. 10, 2010). 14See, e.g., 49 FR 8208 (Mar. 5, 1984), whereby, 

among other things, the Commission: Amended Part 

3 of its regulations, which concerns registration 

under the CEA, by adopting a new Subpart C to 

provide for denial, suspension or revocation of 

registration; and amended Appendix A to Part 3, to 

provide for interpretative advice with respect to 

statutory disqualification under CEA Sections 

8a(2)(C) and 8a(2)(E) and Sections 8a(3)(J) and 

8a(3)(M). 

15See, e.g., 49 FR 39593 (Oct. 9, 1984) (regarding 

the registration records of futures commission 

merchants, commodity pool operators and 

commodity trading advisors), and 75 FR 55310 

(Sep. 10, 2010) (regarding the registration records of 

retail foreign exchange dealers). 

Additionally, pursuant to CEA Sections 

4p, 8a and 17, the Commission is 

issuing Regulation 170.16, which 

provides that each registered SD or MSP 

must become and remain a member of 

an RFA. 

CEA Section 4s further directs the 

Commission to adopt regulations 

applicable to SDs and MSPs with 

respect to the following areas: Capital 

and margin, reporting and 

recordkeeping, daily trading records, 

business conduct standards, 

documentation standards, duties, chief 

compliance officer,5 and, with respect to 

uncleared swaps, segregation.6

CEA Section 8a(10) provides that the 

Commission may authorize any 

person—including an RFA—to perform 

any of the registration functions under 

the CEA. Further, CEA Section 17(o) 

provides that the Commission may 

require an RFA to perform registration 

functions under the CEA with respect to 

its members.7 The Commission has 

previously authorized NFA to perform 

the full range of registration functions 

with regard to applicants for and 

persons registered as: A futures 

commission merchant, commodity pool 

operator or commodity trading advisor; 8

an introducing broker; 9 a leverage 

transaction merchant; 10 a floor 

broker; 11 a floor trader; 12 or a retail 

foreign exchange dealer.13 By today’s 

Order, the Commission is authorizing 

NFA, in accordance with the standards 

established by the CEA and the 

Commission’s regulations issued 

thereunder,14 to perform the full range 

of registration functions under the CEA 

and the Commission’s regulations with 

regard to SDs and MSPs. It is also 

authorizing NFA to notify an applicant 

for registration as an SD or an MSP that 

it is provisionally registered, and to 

confirm the applicant’s initial 

compliance with such regulations as the 

Commission may adopt to implement 

the requirements for SDs and MSPs in 

CEA Sections 4s(e) through 4s(l). 

The Commission further notes that it 

has, by prior Orders, authorized NFA to 

maintain various Commission 

registration records, and has certified 

NFA as the official custodian of such 

records for the Commission.15 The 

Commission has determined, in 

accordance with its authority under 

Section 8a(10) of the Act, to authorize 

NFA to maintain and serve as the 

official custodian of the Commission’s 

registration records with respect to SDs 

and MSPs. 

In maintaining the Commission’s 

registration records pursuant to this 

Order, NFA shall remain subject to all 

other requirements and obligations 

imposed upon it by the Commission in 

existing or future Orders or regulations. 

In this regard, NFA shall also 

implement such additional procedures 

and shall modify existing procedures as 

are necessary to ensure the security and 

integrity of these records as may be 

acceptable to the Commission; to 

facilitate prompt access to these records 

by the Commission and its staff; to 

facilitate disclosure of public or 

nonpublic information in these records 

when permitted by Commission Orders 

or regulations; to keep logs as required 

by the Commission concerning 

disclosures of nonpublic information; 

and otherwise to safeguard the 

confidentiality of the records. 

II. Conclusion and Order 

The Commission has determined, 

pursuant to the provisions of CEA 

Sections 8a(10) and 17(o), to authorize 

NFA, effective January 19, 2012, to 

perform the following registration 

functions: 

(1) To process and grant applications 

for registration and withdrawals from 

registration of swap dealers (SDs) and 

major swap participants (MSPs), and to 

notify of provisional registration; 

(2) In connection with processing and 

granting applications for registration of 

SDs and MSPs, to confirm initial 

compliance with such regulations as the 

Commission may adopt to implement 

CEA Sections 4s(e) through 4s(k) and, 

where applicable, CEA Section 4s(l); 

(3) To conduct proceedings to deny, 

condition, suspend, restrict or revoke 

the registration of any SD or MSP or of 

any applicant for registration in either 

category; and 

(4) To maintain records regarding SDs 

and MSPs, and to serve as the official 

custodian of those Commission records. 

NFA shall perform these functions in 

accordance with the standards 

established by the CEA and the 

Commission’s regulations issued 

thereunder. NFA shall follow the same 

procedures with respect to 

recordkeeping, disclosure and tracking 

of fitness investigations and adverse 

action proceedings concerning SDs and 

MSPs as it must follow in cases 

involving other registrants. 

These determinations are based upon 

the Congressional intent expressed in 

CEA Sections 4s(a), 4s(b), 8a(10), and 

17(o). This Order does not, however, 

authorize NFA to accept or act upon 

requests for exemption from 

registration, or to render ‘‘no-action’’ or 

interpretative letters with respect to 

applicable registration requirements. 

Nothing in this Order, or in CEA 

Section 8a(10) or 17(o), shall affect the 

Commission’s authority to review the 

performance by NFA of Commission 

registration functions, to adopt and 

enforce regulations applicable to SDs 

and MSPs as Commission registrants, 

and to conduct on-site examinations of 

the operations and activities of SDs and 

MSPs as Commission registrants. 

Issued in Washington, DC, on January 11, 

2012. 

David A. Stawick, 

Secretary of the Commission. 

Appendices to Performance of 

Registration Functions by National 

Futures Association With Respect to 

Swap Dealers and Major Swap 

Participants—Commission Voting 

Summary and Statements of 

Commissioners 

Note: The following appendices will not 

appear in the Code of Federal Regulations 

Appendix 1—Commission Voting 

Summary 

On this matter, Chairman Gensler and 

Commissioners Sommers, Chilton, O’Malia 

and Wetjen voted in the affirmative; no 

Commissioner voted in the negative. 

[FR Doc. 2012–791 Filed 1–18–12; 8:45 am] 

BILLING CODE P 

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