The staff of the Division of Trading and Markets has prepared the following statement regarding the submission by broker-dealers of certain notices, statements, undertakings and reports.  This statement represents the views of the staff of the Division of Trading and Markets.  It is not a rule, regulation, or statement of the Commission.  The Commission has neither approved nor disapproved this content.  These statements, like all staff statements, have no legal force or effect: they do not alter or amend applicable law, and they create no new or additional obligations for any person.

For general inquiries to the Division of Trading and Markets on these matters, you may call 202-551-5777 (Office of Interpretation and Guidance).  Inquiries may also be made by e-mail to tradingandmarkets@sec.gov. Please include a telephone number in your voice message or email that the Division staff can use to contact you.

Persons electing to submit paper versions of the notices, statements, undertakings or reports to the Commission’s principal office in Washington, DC (“Commission’s headquarters”) should mail or deliver them to the following address: Securities and Exchange Commission, Division of Trading and Markets, Attn: Broker-Dealer Notices, Mail Stop 7010, 100 F Street NE, Washington, DC 20549 (Note:  See below for the address for paper filings of annual reports under paragraph (d) of Rule 17a-5).

Broker-Dealer notices and statements under Rules 15c3-1, 15c3-3, 17a-4, 17a-5, and 17a-11

Rule 15c3-1(e) notifications (withdrawals of equity capital)

File notices under this provision with: (1) the Commission’s headquarters; (2) the Commission’s office for the region in which the broker-dealer’s principal place of business is located; (3) the broker-dealer’s designated examining authority (“DEA”); and (4) the Commodity Futures Trading Commission (“CFTC”) if the broker-dealer also is registered with the CFTC.  The filing with the Commission’s headquarters may be made by fax to 202-772-9273.  Contact information for the Commission’s regional offices is available at http://www.sec.gov/contact-information/sec-directory.

Rule 15c3-3(i) notifications (failure to make a required deposit)

Provide notices under this provision with:  (1) the Commission; and (2) the broker-dealer’s DEA. The notice to the Commission’s headquarters may be made by fax to 202-772-9273.

Rule 17a-4(f)(3)(v) undertakings (access to electronic records)

File notices under these provisions with the broker-dealer’s DEA.  In addition, broker-dealers may fax these notifications to the Commission’s headquarters at 202-772-9273.

Rule 17a-4(i)(1) undertakings by third-party recordkeepers

File undertakings under this provision with the Commission’s headquarters. The filing with the Commission’s headquarters may be made by email to BDNotices@sec.gov.

Rule 17a-5(f)(2) statements regarding the independent public accountant

File the statements required by this rule with: (1) the Commission’s headquarters; (2) the Commission’s office for the region in which the broker-dealer’s principal place of business is located; and (3) the principal office of the broker-dealer’s DEA.  The filing with the Commission’s headquarters may be made by fax to 202-772-9273.  Contact information for the Commission’s regional offices is available at https://www.sec.gov/contact-information/sec-directory.

Rule 17a-5(f)(3) notifications (replacement of accountant)

File notices under this provision with: (1) the Commission’s headquarters; (2) the Commission’s office for the region in which the broker-dealer’s principal place of business is located; and (3) the principal office of the broker-dealer’s DEA.  The filing with the Commission’s headquarters may be made by fax to 202-772-9273.  Contact information for the Commission’s regional offices is available at https://www.sec.gov/contact-information/sec-directory.

Rule 17a-11 notifications and reports (net capital, books and records, and other matters)

Provide notifications and reports required by this rule with: (1) the Commission’s headquarters; (2) the Commission’s office for the region in which the broker-dealer’s principal place of business is located; (3) the broker-dealer’s DEA; and (4) the CFTC if the broker-dealer also is registered as a futures commission merchant with the CFTC.  The notifications and reports for the Commission’s headquarters can be submitted by fax to 202-772-9273.  Contact information for the Commission’s regional offices is available at https://www.sec.gov/contact-information/sec-directory.

Notifications and reports under CFTC Regulation 1.12

The notifications and reports required by this regulation to be filed with the Commission can be submitted by fax to 202-772-9273.

Broker-Dealer annual reports under paragraph (d) of Rule 17a-5

Where to file

For electronic filing:

Broker-dealer annual reports may be filed electronically through the Commission’s EDGAR system in lieu of filing them in paper form.  See Electronic Filing of Form X-17A-5 Part III (Broker-Dealer, Security-Based Swap Dealer, and Major Security-Based Swap Participant Annual Reports) for more information about how to file the annual reports electronically. 

Filers can contact the Commission’s electronic filer support at (202) 551-8900, option 3 (technicians are available live from 9:00 am-5:30 pm EST Monday-Friday) or filertechunit@sec.gov for procedural and technical questions. Substantive questions regarding a broker-dealer’s filing requirements should be directed to the Division of Trading and Markets by calling (202) 551-5777 or by e-mailing tradingandmarkets@sec.gov.  Please include a telephone number in your voice message or e-mail that the Division staff can use to contact you.

For paper filing:

Broker-dealer annual reports filed in paper form with the Commission's principal office in Washington, D.C. in accordance with paragraph (d)(6) of Rule 17a-5 may be mailed or delivered to the following address:

Securities and Exchange Commission
Division of Trading and Markets
Attn: Audited Broker-Dealer Annual Reports
Mail Stop 7010
100 F Street, NE
Washington, DC 20549

For paper filings, also file the annual reports at the regional office of the Commission for the region in which the broker-dealer has its principal place of business.  Contact information for the Commission’s regional offices is available at https://www.sec.gov/contact-information/sec-directory.

Facing Page

For paper filings, the “Annual Audited Report, Form X-17A-5, Part III, Facing Page” must be completed and attached to the annual reports as explained below. Form X-17A-5 Part III can be found at http://www.sec.gov/about/forms/formx-17a-5_3.pdf.

Required Oath or Affirmation

The broker-dealer must complete the notarized “Oath or Affirmation” on the Facing Page and, for paper filings, attach it to the filing.  For electronic filings, the broker-dealer must certify that the oath or affirmation has been notarized.

The oath or affirmation must be notarized.  If the broker-dealer is a sole proprietorship, the oath or affirmation must be made by the proprietor; if a partnership, by a general partner; if a corporation, by a duly authorized officer.

Confidentiality

Rule 17a-5(e)(3) provides that the annual reports filed under paragraph (d) of Rule 17a-5 “are not confidential, except that, if the Statement of Financial Condition . . . is bound separately from the balance of the annual reports, and each page of the balance of the annual reports is stamped “confidential,” . . . the balance of the annual reports shall be deemed confidential to the extent permitted by law.  However, the annual reports, including the confidential portions, will be available for official use . . .”

For paper filings, in order to keep the annual reports other than the Statement of Financial Condition confidential in accordance with Rule 17a-5(e)(3), the broker-dealer should do the following:

Bind the Statement of Financial Condition, any notes to the Statement of Financial Condition, and the accountant’s report covering the Statement of Financial Condition separately or place it in a separate package. Complete and attach an “Annual Audited Report, Form X-17A-5, Part III, Facing Page.”  Mark that Facing Page “Public.”

Bind all of the annual reports separately from the public reports or place them in a separate package. Complete and attach an “Annual Audited Report, Form X-17A-5, Part III, Facing Page.” Mark that Facing Page “Confidential Pursuant to Rule 17a-5(e)(3).”  Stamp each page of the annual reports “confidential.”

The public and non-public portions of the annual reports must be clearly segregated and the Facing Page must be appropriately marked. Further, if the Statement of Financial Condition, any notes to the Statement of Financial Condition, and the accountant’s report covering the Statement of Financial Condition are not bound separately or placed in a separate package, then, in accordance with Rule 17a-5(e)(3), none of the reports will be accorded confidential treatment.

Rule 17a-5(e)(3) does not require the submission of a letter requesting confidential treatment. It is not necessary to mark the mailing envelope “Confidential.”

Audit Waivers and Extensions

For the initial annual reports, broker-dealers should refer to the letter of December 16, 2005 from Thomas K. McGowan to the New York Stock Exchange, Inc. and NASD Regulation, Inc. at http://www.sec.gov/divisions/marketreg/mr-noaction/nysenasd121605.pdf.  If the circumstances described in the letter do not apply, the broker-dealer may send a request for staff no-action relief to Thomas K. McGowan, Associate Director, Division of Trading and Markets by fax at 202-772-9273.

In accordance with Rule 17a-5(m), a broker-dealer's designated examining authority may extend the period for filing annual reports.