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[Federal Register Volume 62, Number 45 (Friday, March 7, 1997)]
[Rules and Regulations]
[Pages 10441-10445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5561]

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COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 1 and 31

Financial Reports of Futures Commission Merchants, Introducing 
Brokers and Leverage Transaction Merchants

AGENCY: Commodity Futures Trading Commission.

ACTION: Final Rules.

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SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or 
``Commission'') is amending its Rule 1.10(d)(4), which requires that 
each Form 1-FR filed with the Commission contain an oath or affirmation 
attesting that, to the best knowledge and belief of the individual 
making such oath or affirmation, the information contained therein is 
true and correct. The amended rule provides that, for the purposes of 
making this attestation when filing a financial report with the 
Commission electronically, the use of a personal identification number 
(``PIN'') will be deemed to be the equivalent of a manual 
signature.1 The Commission also is amending Rule 1.10(c) to 
account for the possibility that registrants may choose to file certain 
financial reports electronically using a Commission issued PIN rather 
than filing such reports in paper form with the regional office of the 
Commission nearest the principal place of business of the registrant. 
Rule 1.10(c) will permit electronic filing of financial reports that 
are not required to be certified by an independent public accountant 
provided that the Commission obtains the means to read and process the 
electronically transmitted data.2 The Commission also is adding 
Rule 1.10(b)(2)(iii) to clarify that certified financial reports may 
not be filed electronically.
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    \1\ Commission Rule 1.10(h) permits registrants that are also 
registered as securities broker-dealers with the Securities and 
Exchange Commission to file a copy of their Financial and 
Operational Combined Uniform Single Report (``FOCUS'') with the 
Commission in lieu of Form 1-FR. The amendments discussed herein are 
intended to apply equally to registrants who file Form 1-FR or FOCUS 
with the Commission.
    \2\ The Commission currently is involved in discussions with the 
Chicago Mercantile Exchange (``CME'') to obtain the electronic 
filing software co-developed by CME and the Chicago Board of Trade 
(``CBT'') and used by CME, CBT and their members.
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    In addition, the Commission is amending Rules 1.10(g) and 31.13(m) 
to clarify that certain portions of the financial reports will be 
deemed public and other portions nonpublic, and to eliminate the 
requirement that firms filing financial reports need to separately bind 
portions of such reports generally treated as nonpublic in order for 
such portions of the reports to be accorded nonpublic treatment.

EFFECTIVE DATE: April 7, 1997.

FOR FURTHER INFORMATION CONTACT: Lawrence B. Patent, Associate Chief 
Counsel, or Lawrence T. Eckert, Attorney Adviser, Division of Trading 
and Markets, Commodity Futures Trading Commission, 1155 21st Street, 
N.W., Washington D.C. 20581. Telephone (202) 418-5450.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 25, 1996, the Commission published for comment proposed 
amendments to Rule 1.10 (the ``Proposals''),3 which sets forth the 
financial reporting requirements for futures commission merchants 
(``FCMs'') and independent introducing brokers (``IBIs'').4 Rule 
1.10 requires

[[Page 10442]]

generally that FCMs file with the Commission financial reports on Form 
1-FR-FCM each quarter and that IBIs file financial reports on Form 1-
FR-IB semiannually.5 The Proposals consisted of several amendments 
concerning the electronic filing of such financial reports, as well as 
the treatment of the various portions of financial reports as either 
public or nonpublic, whether filed electronically or in paper form. 
Specifically, the Proposals: (1) provide that for the purposes of 
making the attestation under Rule 1.10(d)(4) as to the truth and 
correctness of information contained in electronically filed financial 
reports, the use of a PIN would be deemed to be the equivalent of a 
manual signature; 6 (2) account for the possibility that 
registrants may choose to file electronically financial reports which 
need not be certified by an independent public accountant; (3) clarify 
that certified financial reports may not be filed electronically; (4) 
clarify that certain portions of the financial reports will be deemed 
public and other portions nonpublic; and (5) eliminate the requirement 
that firms filing financial reports bind separately the portions of 
such reports generally treated as nonpublic in order for such portions 
of the reports to be accorded nonpublic treatment.
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    \3\ 61 FR 55235.
    \4\ Approximately two-thirds of introducing brokers enter into a 
guarantee agreement with an FCM and thus are not required to raise 
their own regulatory capital or file financial reports.
    \5\ The Commission recently adopted amendments to certain of its 
financial reporting requirements for FCMs and IBIs, including time 
requirements for filing Form 1-FR. See 62 FR 4633 (Jan. 31, 1997).
    \6\ See also, CFTC Interpretative Letter 96-21, [1994-1996 
Transfer Binder] Comm. Fut. L. Rep. (CCH) para. 26,633 (Feb. 29, 
1996) (no-action letter issued to the CBT concerning the attestation 
of financial reports where an FCM is organized as a partnership); 
Advisory 12-96, reprinted as CFTC Advisory 96-21 in [1994-1996 
Transfer Binder] Comm. Fut. L. Rep. (CCH) para. 26,640 (March 8, 
1996) (making relief provided to CBT available to all FCMs, IBIs and 
self-regulatory organizations (``SROs'')); Advisory 28-96, [1994-
1996 Transfer Binder] Comm. Fut. L. Rep. (CCH) para. 26,711 (May 28, 
1996) (alerting FCMs, IBs and SROs that to the extent that any SRO 
program for electronic filing of financial reports approved by the 
Commission does not require a manual signature for purposes of 
attestation, the use of a PIN would be deemed to be the equivalent 
of a manual signature for purposes of attestation under Commission 
Rule 1.10(d)(4)).
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    The 30-day public comment period on the Proposals expired on 
November 25, 1996. The Commission received one written comment on the 
Proposals, submitted by National Futures Association (``NFA''). In 
general, NFA noted its strong support for the Commission's Proposals to 
allow FCMs and IBIs to file certain financial reports electronically, 
but requested that the Commission clarify and revise certain aspects of 
the proposed amendments. The Commission has considered carefully the 
comments received from NFA. The Commission has determined to adopt the 
amendments as proposed with one minor modification. Amended Rule 
1.10(c) now clarifies that, while the Commission intends to permit the 
electronic filing of noncertified financial reports, it will permit 
such electronic filing only after such time as the Commission obtains 
the necessary computer software to read and process the electronically 
transmitted data. The Commission also has clarified various matters 
relevant to the operation of the amended rules in the discussion below.

II. Rule Amendments

A. Electronic Filing Issues

    The Commission proposed to amend Rule 1.10(d)(4) such that the use 
of a PIN in filing a Form 1-FR pursuant to Rule 1.10 will be deemed to 
be the equivalent of a manual signature under the rule. The Commission 
did not receive any comments concerning the language of this proposed 
amendment and is adopting the provision as proposed. The amended rule, 
therefore, makes clear that the transmission of a financial report to 
the Commission or an SRO under a PIN constitutes a representation that 
the person whose PIN is used in such transmission attests that, to the 
best knowledge and belief of that person, the information contained in 
the financial report is true, correct and complete.7 The 
Commission hopes that this amendment will encourage and facilitate the 
process of electronic filing of such reports with the Commission but 
notes that, while it encourages the use of the electronic filing 
option, the amendments do not mandate electronic filing with the 
Commission.8
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    \7\ Commission Rule 1.10(c) provides that financial reports must 
be filed with the Commission and the firm's designated self-
regulatory organization (``DSRO'').
    \8\ The Commission may determine to require electronic filing at 
some later period, but believes such a requirement would be 
premature at this time. The Commission also encourages the industry 
to develop a system of electronic filing of financial reports that 
will provide for the development of a uniform database of financial 
information with the least burden upon filers, SROs and the 
Commission.
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    In the Proposals, the Commission noted that it intends to adopt 
procedures for issuing PINs to facilitate electronic filing with the 
Commission consistent with the procedure currently in use by SROs such 
as CBT and the CME.9 In this regard, NFA stated in its comment 
letter that it fully supports the use of PINs as described in the 
Proposals. However, NFA recommended that, with respect to those firms 
that are members of an SRO, the Commission should permit the 
registrant's SRO to assign one PIN to be used by the registrant to file 
financial reports with both the Commission and the firm's DSRO. Thus, 
the Commission could avoid the situation where a registrant would need 
to use multiple PINs to file electronically. NFA stated its belief that 
such a situation could be a disincentive to filing electronically with 
the Commission. The Commission has discussed this issue with CME, which 
did not provide a written comment on this issue, but would be affected 
along with the other exchanges by adoption of NFA's proposal. CME 
stated that, for security reasons, each entity receiving an 
electronically filed financial report should assign a unique PIN to 
each filer. If a PIN is too widely known, an issue arises as to the 
value of the use of the PIN for attestation purposes. Additionally, CME 
noted that the software used by FCMs would have to be modified in order 
to allow the PIN number currently used with the exchange also to be 
used when filing with the Commission. Finally, as NFA's proposed 
electronic filing system is evolving, it appears that there may not be 
a need for the Commission to have a PIN for firms for which NFA is the 
DSRO. NFA is proposing to have the firms for which it is the DSRO file 
financial reports directly with NFA. Under this framework, NFA would 
then transmit the electronically filed reports to the Commission. In 
light of the foregoing, the Commission anticipates that it will issue 
unique PINs to FCMs that choose to file their financial reports with 
the Commission electronically.
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    \9\ 61 FR 55235, at 55236.
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    The Commission also proposed to add new Rule 1.10(b)(2)(iii) and to 
amend paragraph (c) of Rule 1.10 to provide certain clarifications 
regarding the Commission's electronic filing program. New Rule 
1.10(b)(2)(iii), as set forth in the Proposals, clarified that firms 
may not file electronically their certified financial reports, which 
must accompany the application for registration and be submitted as of 
each fiscal year-end following registration. The amendment to Rule 
1.10(c) clarified that a registrant may file non-certified financial 
reports via electronic transmission using a Commission issued PIN in 
accordance with instructions issued by the Commission. NFA requested 
that the Commission delete the proposed addition of Rule 
1.10(b)(2)(iii) as well as the reference in the proposed amendment to 
Rule 1.10(c) with respect to ``reports which need not be certified * * 
*.'' NFA acknowledged that technology does not yet permit the 
electronic filing of a complete certified report, but recommended that 
the Commission include any electronic

[[Page 10443]]

filing restrictions in the instructions to the forms to be filed rather 
than in Rule 1.10 itself, in order to accommodate future technology. 
The Commission believes that references to filing restrictions in the 
rules themselves promote clarity. Should the Commission wish to permit 
the filing of certified financial reports in order to accommodate new 
technology as it becomes available, the Commission could readily amend 
Rule 1.10 to account for such change. Accordingly, the Commission is 
adopting new Rule 1.10(b)(2)(iii) as proposed. The Commission is, 
however, making one minor modification to the proposed amendment to 
Rule 1.10(c). As adopted, amended Rule 1.10(c) clarifies that the 
Commission's electronic filing program will begin only if the 
Commission can obtain the computer software necessary to read and to 
process the data contained in the electronically filed reports. The 
Commission wishes to avoid a situation in which registrants would be 
required to use software to file their financial reports with the 
Commission that is different from the software used to file such 
reports with their DSRO. As noted above, the Commission currently is 
engaged in discussions with CME in an attempt to obtain the computer 
software co-developed by CME and CBT and used by CME, CBT and their 
members as part of CME's and CBT's electronic filing programs.
    The Commission further noted in the Proposals that, at the outset 
of its electronic filing program, firms filing non-certified financial 
reports electronically must continue to file a paper report with the 
appropriate regional office of the Commission. The Commission explained 
that, following some experience with electronic transmission of 
financial data (the ``Pilot Period''), it may be permissible for firms 
to submit non-certified financial reports to the Commission solely via 
electronic transmission. In this regard, NFA encouraged the Commission 
to keep its Pilot Period with respect to its electronic filing program 
brief, stating that firms have little incentive to file with the 
Commission electronically if they also are required to file their 
reports in paper form. NFA also requested that the Commission clarify 
that the Pilot Period is intended for the Commission to gain experience 
with the electronic filing program itself and is not meant to serve as 
a testing period for each individual firm's use of the system. The 
Commission shares NFA's views on these points and anticipates 
permitting firms to file their non-certified financial reports solely 
via electronic transmission as quickly as practicable, given an 
adequate time period in which the Commission can gain experience with 
the electronic filing program. At the conclusion of its Pilot Period, 
the Commission intends to change its instructions regarding filing to 
eliminate the requirement that a firm file a paper copy of its 
financial report in addition to filing such report electronically. The 
Commission does not anticipate that additional rulemaking would be 
necessary to accomplish this.

B. Freedom of Information Act Issues

    In the Proposals, the Commission noted that, consistent with 
current practice, the Commission intends to respond to a Freedom of 
Information Act (``FOIA'') request for a financial report that was 
filed with the Commission solely by electronic transmission by printing 
a paper copy of the responsive public data and forwarding it to the 
requestor. The data which the Commission would print and forward to the 
requestor would be the public portions of a Form 1-FR. Commission Rule 
1.10(g) provides that these public portions are, for FCMs and IBIs, the 
statement of financial condition and the statement of the computation 
of the minimum capital requirements, and, in addition, for FCMs only, 
the statements concerning segregation of customer funds and the secured 
amount for foreign futures and option customers. The proposed 
amendments to Rule 1.10(g) would reconfirm the current demarcation as 
to which portions of the Form 1-FR are generally treated as public and 
nonpublic and eliminate the need for firms to use a separate binding 
procedure to receive such treatment for their reports, whether reports 
are filed in paper form or electronically. The Commission received no 
comments with respect to the proposed amendments to Rule 1.10(g) 
10 and is adopting them as proposed.
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    \10\ Although there are currently no registered leverage 
transaction merchants (``LTMs''), the Commission is also amending 
Rule 31.13(m) which currently provides for a separate binding 
procedure similar to that set forth in Rule 1.10(g) with respect to 
LTMs submitting financial reports on Form 2-FR.
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    The Commission has proposed to clarify, in a separate release, its 
rules under FOIA and the Government in the Sunshine Act (``GINSA'') in 
order to, among other things: (1) reaffirm that certain portions of the 
Form 1-FR are generally public and the remainder are nonpublic; and (2) 
state that it will no longer process petitions for confidential 
treatment of the generally public portions of a Form 1-FR.11 The 
amendments to Rule 1.10(g)(1) and(2) 12 are intended to complement 
these proposed amendments of the FOIA and GINSA rules and to eliminate 
a burden on firms to bind separately certain portions of a Form 1-FR to 
assure nonpublic treatment.
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    \11\ 61 FR 66949 (Dec. 19, 1996).
    \12\ The Commission has removed and reserved paragraph (g)(3) 
and revised paragraph (g)(5) of Rule 1.10. 62 FR 4633, 4637 and 
n.17, 4640. The amendments discussed herein do not interfere with or 
require further amendment of those earlier amendments.
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III. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-611 (1988), 
requires that agencies, in proposing rules, consider the impact of 
those rules on small businesses. The rules discussed herein will affect 
FCMs, LTMs and IBIs. The Commission already has established certain 
definitions of ``small entities'' to be used by the Commission in 
evaluating the impact of its rules on such small entities in accordance 
with the RFA.13 FCMs and LTMs 14 have been determined not to 
be small entities under the RFA.
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    \13\ 47 FR 18618-18621 (April 30, 1982).
    \14\ See 50 FR 102, 108 n.11 (Jan. 2, 1985).
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    With respect to IBIs, the Commission has stated that it is 
appropriate to evaluate within the context of a particular rule 
proposal whether some or all IBs should be considered to be small 
entities and, if so, to analyze the economic impact on such entities at 
that time.15 These rule amendments do not require any IBI to 
submit financial reports electronically but only govern the attestation 
of the completeness and accuracy of such reports so filed. Presumably, 
an IBI would choose to file a financial report electronically only if 
it were cost-effective to do so. These rule amendments should impose no 
additional burden or requirements on an IBI and thus would not have a 
significant economic impact on a substantial number of IBIs. 
Accordingly, pursuant to Rule 3(a) of the RFA, 5 U.S.C. 605(b), the 
Chairperson, on behalf of the Commission, certifies that these 
amendments will not have a significant economic impact on a substantial 
number of small entities.
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    \15\ See 48 FR 35248, 35275-78 (Aug. 3, 1983).
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B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), Pub. L. 104-13 (May 13, 
1995) imposes certain requirements on federal agencies (including the 
Commission) in connection with their conducting or sponsoring any 
collection of

[[Page 10444]]

information as defined by the PRA. While these rule amendments have no 
burden, the group of rules (3038-0024) of which they are a part has the 
following burden:

    Average Burden Hours Per Response: 128.
    Number of Respondents: 3,988.
    Frequency of Response: Quarterly, Monthly or On Occasion.

    Copies of the OMB approved information collection package may be 
obtained from Desk Officer, CFTC, Office of Management and Budget, Room 
10202, NEOB, Washington, DC 20503 (202) 395-7340.

List of Subjects

17 CFR Part 1

    Commodity futures; Minimum financial and related reporting 
requirements.

17 CFR Part 31

    Leverage transactions; Reporting and recordkeeping requirements.

    In consideration of the foregoing, and pursuant to the authority 
contained in the Commodity Exchange Act, and in partic ular, Sections 
4f, 4g and 8a(5) thereof, 7 U.S.C. 6f, 6g and 12a(5), the Commission 
hereby amends parts 1 and 31 of chapter I of title 17 of the Code of 
Federal Regulations as follows:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

    1. The authority citation for part 1 continues to read as follows:

    Authority: 7 U.S.C. 1a, 2, 2a, 4, 4a, 6, 6a, 6b, 6c, 6d, 6e, 6f, 
6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6m, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 
12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23 and 24.

    2. Section 1.10 is amended by adding paragraph (b)(2)(iii) and 
revising paragraphs (c), (d)(4), (g)(1) and (g)(2) to read as follows:

Sec. 1.10  Financial reports of futures commission merchants and 
introducing brokers.

* * * * *
    (b) * * *
    (2) * * *
    (iii) A Form 1-FR required to be certified by an independent public 
accountant in accordance with Sec. 1.16 which is filed by a futures 
commission merchant, an introducing broker or an applicant for 
registration in either category, must be filed in paper form and may 
not be filed electronically.
* * * * *
    (c) Where to file reports. The reports provided for in this section 
will be considered filed when received by the regional office of the 
Commission nearest the principal place of business of the registrant 
(except that a registrant under the jurisdiction of the Commission's 
Western Regional Office must file such reports with the Southwestern 
Regional Office) and by the designated self regulatory organization, if 
any; and reports required to be filed by this section by an applicant 
for registration will be considered filed when received by the National 
Futures Association and by the regional office of the Commission 
nearest the principal place of business of the applicant (except that 
an applicant under the jurisdiction of the Commission's Western 
Regional Office must file such reports with the Southwestern Regional 
Office): Provided, however, That any report filed pursuant to 
paragraphs (b)(1), (b)(2) or (b)(4) of this section or Sec. 1.12(a) or 
(b) which need not be certified in accordance with Sec. 1.16 may be 
submitted to the Commission in electronic form using a Commission-
assigned Personal Identification Number, and otherwise in accordance 
with instructions issued by the Commission, if the Commission has 
obtained the means necessary to read and to process the information 
contained in such report: And, provided further, That information 
required of a registrant pursuant to paragraph (b)(4) of this section 
need be furnished only to the self-regulatory organization requesting 
such information and the Commission, and that information required of 
an applicant pursuant to paragraph (b)(4) of this section need be 
furnished only to the National Futures Association and the Commission: 
And, provided further, That any guarantee agreement entered into 
between a futures commission merchant and an introducing broker in 
accordance with the provisions of this section need be filed only with 
and will be considered filed when received by the National Futures 
Association.
    (d) * * *
    (4) Attached to each Form 1-FR filed pursuant to this section must 
be an oath or affirmation that to the best knowledge and belief of the 
individual making such oath or affirmation the information contained in 
the Form 1-FR is true and correct. If the applicant or registrant is a 
sole proprietorship, then the oath or affirmation must be made by the 
proprietor; if a partnership, by a general partner; or if a 
corporation, by the chief executive officer or chief financial officer. 
In the case of a Form 1-FR filed via electronic transmission in 
accordance with procedures established by the Commission, such 
transmission must be accompanied by the Commission-assigned Personal 
Identification Number of the authorized signer and such Personal 
Identification Number will constitute and become a substitute for the 
manual signature of the authorized signer for the purpose of making the 
oath or affirmation referred to in this paragraph.
* * * * *
    (g) Nonpublic treatment of reports. (1) The following portions of 
Forms 1-FR filed pursuant to this section will be public: the statement 
of financial condition, the statement of the computation of the minimum 
capital requirements, the statements (to be filed by a futures 
commission merchant only) of segregation requirements and funds in 
segregation for customers trading on U.S. commodity exchanges and for 
customers' dealer options accounts, and the statement (to be filed by a 
futures commission merchant only) of secured amounts and funds held in 
separate accounts for foreign futures and foreign options customers in 
accordance with Sec. 30.7 of this chapter. The other financial 
statements (including the statement of income (loss)), footnote 
disclosures and schedules of Form 1-FR, trade secrets and certain other 
commercial or financial information on such other statements and 
schedules will be treated as nonpublic for purposes of the Freedom of 
Information Act and the Government in the Sunshine Act and parts 145 
and 147 of this chapter.
    (2) The following portions of copies of the Financial and 
Operational Combined Uniform Single Report under the Securities 
Exchange Act of 1934, Part II or Part IIA filed pursuant to paragraph 
(h) of this section, will be public: The statement of financial 
condition, the computations of net capital and the minimum capital 
requirements, the statements (to be filed by a futures commission 
merchant only) of segregation requirements and funds in segregation for 
customers trading on U.S. commodity exchanges and for customers' dealer 
options accounts, and the statement (to be filed by a futures 
commission merchant only) of secured amounts and funds held in separate 
accounts for foreign futures and foreign options customers in 
accordance with Sec. 30.7 of this chapter. The other financial 
statements (including the statement of income (loss)), footnote 
disclosures and schedules of the Financial and Operational Combined 
Uniform Single Report under the Securities and Exchange Act of 1934, 
Part II or Part IIA, trade secrets and certain other commercial or 
financial

[[Page 10445]]

information on such other statements and schedules will be treated as 
nonpublic for purposes of the Freedom of Information Act and the 
Government in the Sunshine Act and parts 145 and 147 of this chapter.
* * * * *

PART 31--LEVERAGE TRANSACTIONS

    3. The authority citation for Part 31 continues to read as follows:

    Authority: 7 U.S.C. 12a and 23.

    4. Section 31.13 is amended by revising paragraph (m) to read as 
follows:

Sec. 31.13  Financial reports of leverage transaction merchants.

* * * * *
    (m) The following portions of Form 2-FR filed pursuant to this 
section will be public: The statement of financial condition, the 
computation of the minimum capital requirements pursuant to Sec. 31.9, 
the schedule of coverage requirements and cover provided, and the 
schedule of segregation requirements and funds on deposit in 
segregation. The other financial statements (including the statement of 
income (loss)), footnote disclosures and schedules of Form 2-FR, trade 
secrets and certain other commercial or financial information on such 
other statements and schedules, will be treated as nonpublic for 
purposes of the Freedom of Information Act and the Government in the 
Sunshine Act and parts 145 and 147 of this chapter. All information on 
such other statements, footnote disclosures and schedules will, 
however, be available for official use by any official or employee of 
the United States or any State, by any self-regulatory organization of 
which the person filing such report is a member, by the National 
Futures Association in the case of an applicant, and by any other 
person to whom the Commission believes disclosure of such information 
is in the public interest. The independent public accountant's opinion 
filed pursuant to this section will be deemed to be public information.
* * * * *
    Issued in Washington, D.C. on February 27, 1997 by the 
Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 97-5561 Filed 3-6-97; 8:45 am]
BILLING CODE 6351-01-P
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