For Release: April 29, 1998
Commission Issues Advisory Regarding
Year 2000 Problem -- Reporting and Disclosure Requirements
Washington--The Commodity Futures Trading Commission (Commission) has issued an Advisory to make clear the Commission's expectation, based upon requirements contained in existing Commission rules, that all Commission registrants will report or disclose promptly any year 2000 problem. The Commission notes that registrants that can demonstrate that they are addressing year 2000 compliance in an adequate and timely manner have nothing to report or to disclose to the Commission. The Advisory describes in detail who must report a year 2000 problem and how and when a report must be filed. In addition to the reporting of year 2000 compliance problems, the Advisory strongly encourages all registrants to share information with self-regulatory and membership organizations that are attempting to assist the industry with year 2000 readiness issues.
A copy of the Commission's Advisory is available upon request through the Commission's Office of Public Affairs, Three Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581, (202) 418-5080; or by accessing the Commission's Internet Homepage at http://www.cftc.gov.
For Release: April 29, 1998
Commodity Futures Trading Commission
Year 2000 Problem -- Reporting and Disclosure
In an Advisory dated November 4, 1997, the Commodity Futures Trading
Commission ("Commission") emphasized the importance for all
segments of the futures industry to take immediate action to avoid the
serious disruptions that could be caused by the use of computer
technology that is not year 2000 compliant. This Advisory identifies
the regulations of the Commission that impose an obligation to report
or disclose material year 2000 systems problems. A "year 2000
problem", for purposes of this Advisory, is a failure to address
year 2000 mission-critical systems issues in an adequate and timely
manner, which is described in detail below.
With this Advisory, the Commission wishes to make clear its
expectation that all Commission registrants will report or disclose
promptly any year 2000 problem. The Commission notes that registrants
that can demonstrate that they are addressing year 2000 compliance in
an adequate and timely manner have nothing to report or
disclose under this Advisory or the applicable rules. However, the
Commission strongly encourages all registrants to share information
with self-regulatory and membership organizations that are attempting
to assist the industry with year 2000 readiness issues.
What Is a "Year 2000 Problem"
A "year 2000 problem" shall be deemed to exist if there is a material failure by an entity to meet the conditions set forth below. As used herein, the term "entity" refers to any registrant covered by the reporting or disclosure requirements enumerated below, and the term "system" refers to any mission-critical system and related facilities and infrastructure equipment.
Planning - The entity must have identified and evaluated its
mission-critical systems for year 2000 compliance, identified those
systems that need modification or replacement, and determined the
scope of work necessary to achieve compliance. For systems that
interface with third party systems, an entity must also have made
appropriate inquiry of operators of the other third party systems and
planned to participate in industry-wide testing. Testing results must
be documented and reported to management. The extent and detail of any
plan must be appropriate to the complexity of the entity's
operations. The plan must include provision(s) for contingencies to
deal with the possibility that problems might arise in achieving year
2000 compliance. The Commission notes that the Futures Industry
Association is leading industry-wide year 2000 testing and also plans
to issue guidance regarding contingency planning.
Scheduling - The entity must have identified the major steps involved in bringing each system into compliance and have established a schedule, including milestones, for accomplishing this task. The schedule must allow sufficient time for testing of new systems and system modifications prior to commencing year 2000 operations. The entity must be in compliance with its schedule. In the event of slippage in meeting the original schedule, the entity must have established a new schedule.
Staffing - Top management of the entity must have assigned appropriate
staff to carry out the plan. If the entity does not possess the
appropriate staff resources, sufficient outside expertise must have
been secured or otherwise be available on a contract basis.
Approval and Control - The entity must have a management process in
place to approve and control the execution of the plan. The plan must
be approved by the board of directors (or equivalent). Senior
management must monitor and control execution of the plan and report
progress to the board of directors.
Who Must Report a Year 2000 Problem
The entities covered by the Commission's existing reporting and disclosure rules, as set forth below, include futures commission merchants ("FCMs"), introducing brokers ("IBs"), commodity pool operators ("CPOs"), commodity trading advisors ("CTAs"), applicants for registration as FCMs and IBs, self-regulatory organizations ("SROs") and the public accountants that perform audits of FCMs and IBs.
How and When Must a Report Be Filed
The following is a summary of the reporting requirements for each class of registrant:
FCMs and IBs -- FCMs and IBs must file a notice of a material
inadequacy ("MI") or non-current books and records with the
Commission within three business days of discovery. A follow-up report
outlining corrective action must be filed within 5 business days. As
explained below, a year 2000 problem constitutes an MI and may
constitute non-current books and records.
CPOs and CTAs -- The disclosure documents of CPOs that manage
commodity pools and CTAs that offer trading programs must contain all
material information. A CPO or CTA must file an amended disclosure
document with the Commission if material information develops that was
not disclosed in the disclosure document originally filed. As
explained below, a year 2000 problem constitutes material information.
If a year 2000 problem is found to exist, an amended disclosure
document disclosing this material information must be filed with the
Commission and distributed to pool participants and other parties
within 21 days, as set forth in the rule.
Auditors of FCMs and IBs -- The public accountant performing the annual audit of an FCM or IB must describe in a supplemental report any MIs found to exist or found to have existed since the date of the previous audit. As explained below, a year 2000 problem is deemed to be an MI by the Commission and, therefore, must be disclosed in the auditor's annual MI report. In addition to the annual MI report, the independent auditor of an FCM or IB must file a special report with the Commission, at such time as he or she finds that the FCM or IB has failed to report an MI to the Commission. Therefore, if an auditor discovers an unreported MI condition at an FCM during audit work conducted at any time, a notice must be filed at that time.
SROs -- The SRO of an FCM or IB must file a report with the Commission
if it finds that the FCM or IB has failed to report an MI to the
Commission. The Commission notes that the SROs are working closely
with the Commission staff on year 2000 compliance issues, including
gathering information from registrants on year 2000 compliance plans
and conducting follow-up reviews during in-field audits.
The Commission realizes that a registrant must be allowed a reasonable amount of time to assess a situation and to prepare the required notice. However, in potentially serious situations, the reporting entity should make an immediate phone call to the applicable regional office of the Commission's Division of Trading and Markets and to the entity's SRO.
Discussion of Terms Contained in the Rules
A year 2000 problem of an FCM or IB is an MI within the meaning of Commission rule 1.16, because such a problem would have the impact as described in the rule. That is, an MI would be a condition which contributed substantially to or, if appropriate corrective action is not taken, could reasonably be expected to: a) prevent the FCM or IB from completing transactions, b) inhibit the discharge of the FCM's or IB's obligations to customers and creditors, c) result in material financial loss to the FCM or IB or its customers, d) cause the FCM's or IB's financial statements and schedules to be materially misstated, and/or e) result in the FCM or IB violating the Commission's segregation, secured amount, recordkeeping or financial reporting requirements, as set forth in the rule.
Books and Records Requirements, Material Information
All registrants are required to make and keep certain books and
records, as described in the applicable rules for each registrant
type. A failure to keep these books and records accurate or current is
a violation of these rules. Therefore, a year 2000 problem which
results in material errors in books or records must be reported when
discovered. In such a case, FCMs and IBs would be required to notify
the Commission and their designated self-regulatory organizations
("DSROs") of non-current books and records. With respect to
CPOs and CTAs, the Commission deems a year 2000 problem to be material
information which must be disclosed in the CPO's or CTA's
Other Commission Requirements
The Commission notes that a year 2000 problem could be deemed to violate rules of the Commission not mentioned in this Advisory. Therefore, the Commission may take action in connection with any such other rule, if the Commission believes such action is warranted.
Supplemental Reporting Encouraged
The Commission notes that registrants in the futures industry generally are very cooperative in addressing issues and in assisting in addressing industry-wide problems. The year 2000 issue will be addressed effectively only with the cooperation of all the parties mentioned in this Advisory as having obligations under the rules. The Commission encourages all parties to share among themselves year 2000 concerns, issues and potential solutions. The information should be shared regardless of materiality. Matters which may seem minor now could be precursors of serious problems later. In this connection, the Commission wishes to encourage reporting of situations which may not in fact constitute year 2000 problems. The Commission believes it is far more important to act and report promptly than to delay while studying exactly how a situation should be classified for regulatory purposes.
Applicable Commission Rules
In connection with reporting or disclosing a year 2000 problem, as set forth above, the following are the applicable rules:
Section 1.12(c) applies to FCMs and IBs. It provides that:
If an applicant or registrant at any time fails to make or keep current the books and records required by these regulations, such applicant or registrant must, on the same day such event occurs, give telegraphic notice of such fact, specifying the books and records which have not been made or which are not current, and within 5 business days after giving such notice file a written report stating what steps have been and are being taken to correct the situation.
Section 1.12(d) applies to FCMs and IBs. It provides that:
Whenever any applicant or registrant discovers or is notified by an
independent public accountant, pursuant to §1.16(e)(2) of these
regulations, of the existence of any material inadequacy, as specified
in §1.16(d)(2) of these regulations, such applicant or registrant
must give telegraphic notice of such material inadequacy within 3
business days, and within 5 business days after giving such notice
file a written report stating what steps have been and are being taken
to correct the material inadequacy.
Section 1.12(e) applies to FCMs and IBs. It provides that:
Whenever any self-regulatory organization learns that a member
registrant has failed to file a notice or written report as required
by the §1.12, such self-regulatory organization must immediately
report such failure as provided in paragraph (h) of this
Section 1.16(d)(1) sets forth the audit objectives which must be met when an audit of a Commission registrant is conducted. In pertinent part, it states:
The scope of the audit and review of the accounting system, the internal controls, and procedures for safeguarding customer and firm assets must be sufficient to provide reasonable assurance that any material inadequacies existing at the date of the examination in (i) the accounting system, (ii) the internal accounting controls, and (iii) the procedures for safe-guarding customer and firm assets (including, in the case of a futures commission merchant, the segregation requirements of the Act and these regulations) will be discovered.
Section 1.16(d)(2) defines a material inadequacy as follows:
A material inadequacy in the accounting system, the internal accounting controls, the procedures for safeguarding customer and firm assets, and the practices and procedures referred to in paragraph (d)(1) of this section which is to be reported in accordance with paragraph (e)(2) of this section includes any conditions which contributed substantially to or, if appropriate corrective action is not taken, could reasonably be expected to:
(i) Inhibit an applicant or registrant from promptly completing transactions or promptly discharging his responsibilities to customers or other creditors;
(ii) Result in material financial loss;
(iii) Result in material misstatement of the applicant's or registrant's financial statements and schedules; or
(iv) Result in violations of the Commission's segregation or
secured amount (in the case of a futures commission merchant),
recordkeeping or financial reporting requirements to the extent that
could reasonably be expected to result in the conditions described in
paragraph (d)(2) (i), (ii), or (iii) of this section.
Section 4.24(w) applies to CPOs. It provides that:
Nothing set forth in §§4.21, 4.24, 4.25 or §4.26 shall relieve a commodity pool operator from any obligation under the Act or the regulations thereunder, including the obligation to disclose all material information to existing or prospective pool participants even if the information is not specifically required by such sections.
Section 4.34(o) applies to CTAs. It provides that:
Nothing set forth in §§4.31, 4.34, 4.35 or §4.36 shall
relieve a commodity trading advisor from any obligation under the Act
or the regulations thereunder, including the obligation to disclose
all material information to existing or prospective clients even if
the information is not specifically required by such sections.
* * *
Questions on implementation of the advice contained in this Advisory may be directed to Paul H. Bjarnason, Jr., Chief Accountant, (202) 418-5459, electronic mail: "firstname.lastname@example.org"; Henry J. Matecki, Branch Chief, (312) 353-9499, electronic mail: "email@example.com"; or to the Commission by contacting: Jean A. Webb, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581.