[Federal Register Volume 62, Number 77 (Tuesday, April 22, 1997)]
[Proposed Rules]
[Pages 19530-19534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10338]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 190


Proposed Amendment to Part 190, Appendix B, to Govern the 
Distribution of Customer Property Related to Trading on the Proposed 
Chicago Board of Trade--London International Financial Futures and 
Options Exchange Trading Link

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of a proposed amendment to Part 190, Appendix B, to 
govern the distribution of customer property related to trading on the 
proposed Chicago Board of Trade--London International Financial Futures 
and Options Exchange Trading Link.

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SUMMARY: In connection with the proposal of the Board of Trade of the 
City of Chicago (``CBT'') to establish a link (``Link'') with the 
London International Financial Futures and Options Exchange 
(``LIFFE''),\1\ the Commodity Futures Trading Commission 
(``Commission'') is proposing to amend an Appendix to its bankruptcy 
rules to govern the distribution of property where the debtor is a 
futures commission merchant (``FCM'') that maintains customer accounts 
that carry or trade positions in Designated CBT Contracts at LIFFE or 
Designated LIFFE Contracts at CBT (``Link Accounts'') as well as non-
Link accounts. This new distributional framework is intended to assure 
that non-Link customers of such an FCM would not be affected adversely 
by a shortfall in Section 4d(2) segregated funds caused by the 
operation of the Link. The new distributional framework would become 
effective upon the effective date of the Link.
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    \1\ The proposal to establish a Link arrangement between CBT and 
LIFFE was previously published for comment. 61 FR 16899. (April 18, 
1996).

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DATES: Comments must be received on or before May 7, 1997.

FOR FURTHER INFORMATION CONTACT: Lois J. Gregory, Attorney, Division of 
Trading and Markets, Commodity Futures Trading Commission, Three 
Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581. 
Telephone: (202) 418-5483.

SUPPLEMENTARY INFORMATION:

I. Trading in Link Contracts

    The CBT, LIFFE and their respective clearing houses have entered 
into a Link Agreement, and CBT has sought Commission approval of rules 
which would permit the establishment of trading and clearing 
arrangements for Designated CBT Contracts \2\ to be traded on LIFFE, 
initially cleared by the London Clearing House Limited (``LCH''), and 
transferred to the Board of Trade Clearing Corporation (``BOTCC''), and 
Designated LIFFE Contracts \3\ to be traded on the CBT, initially 
cleared by BOTCC, and transferred to LCH.
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    \2\ Designated CBT Contracts would consist of U.S. Treasury Bond 
futures and futures options. At a later date, it is anticipated that 
10 Year U.S. Treasury Note futures and futures options and 5 Year 
U.S. Treasury Note futures and futures options would be added.
    \3\ Designated LIFFE Contracts would consist of German 
Government Bond futures and futures options. At a later date, 
British Gilt futures and futures options and futures and futures 
options on the Italian Government Bond would be added.
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    In the case of Designated CBT Contracts traded on LIFFE, the U.S. 
FCM would likely maintain a customer omnibus account with a LIFFE 
clearing member. Each day, LCH would mark futures positions to a 
closing price, pay to and collect from the LIFFE clearing member the 
difference between trade price and mark price, pay and collect option 
premiums and, at the request of the LIFFE clearing member, net 
positions prior to their transfer to BOTCC at approximately 10:00 a.m. 
Chicago time. Bank settlement commitments would be required in response 
to instructions for Link variation obligations on trade date (``T''), 
with payment expected to be made to LCH on the next day (``T+1''). 
Also, if the CBT were closed for a holiday, LCH would hold positions in 
Designated CBT Contracts overnight and could call for margin. Property 
of the customers of the U.S. FCM that accrued to such customers as the 
result of such trades or contracts prior to their transfer to BOTCC or 
which was deposited to margin, guarantee or secure trades or contracts 
in Designated CBT Contracts at LIFFE would be deemed to be ``Link 
property''. During the interval before transfer back from LCH to BOTCC, 
Link property at LCH could for operational purposes be held in a 
foreign depository as provided in CFTC Advisory 87-5.\4\
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    \4\ Comm. Fut. L. Rep., para. 23,997 (December 3, 1987).
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    In the case of Designated LIFFE Contracts traded on CBT, property 
received by the U.S. FCM to margin,

[[Page 19531]]

secure or guarantee trades would be included in the foreign futures and 
foreign options secured amount, pursuant to Commission Regulation 30.7. 
The BOTCC has requested a no action position to permit certain excess 
property contained in such secured amount and separately accounted for 
to be used to meet original margin requirements for U.S. contracts 
under Section 4d(2) of the Act. Such excess property held in a combined 
BOTCC account but applied to margin requirements for U.S. contracts as 
Section 4d(2) property would also be ``Link property'' under this 
Framework.
    To the extent that positions in Designated CBT Contracts executed 
on LIFFE and property supporting or accruing from those positions are 
deemed to be customer property under Section 4d(2) of the Act, or 
certain foreign currency margin deposited in respect of Designated 
LIFFE Contracts is held in a Section 4d(2) clearing account, any 
customer net equity claim in respect of such Link property held by an 
FCM in a Link account would be treated as a customer net equity claim 
under Part 190 of the Commission's rules \5\ and subchapter IV of 
chapter 7 of the Bankruptcy Code (the commodity broker liquidation 
provisions).\6\ In the case of an FCM bankruptcy, the commodity broker 
liquidation provisions of the Bankruptcy Code and Part 190 of the 
Commission's rules provide for a pro rata distribution of assets in 
proportion to net equity claims among the Section 4d(2) customers whose 
accounts were carried by such FCM. Thus, absent some provision to the 
contrary, if a participating FCM defaulted due to losses in its Link-
related account(s), non-Link customers could be forced to share in 
losses generated by a shortfall in Link property. To avoid that result, 
the new framework would provide a rule of distribution that would 
operate to subordinate claims for Link property to Section 4d(2) claims 
overall as reflected in Appendix B.
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    \5\ 17 CFR part 190.
    \6\ 11 U.S.C. Secs. 761-766.
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II. New Bankruptcy Distribution in the Context of the CBT-LIFFE 
Link

    When the Commission adopted its Part 190 bankruptcy regulations,\7\ 
it included an Appendix intended to facilitate the execution of a 
trustee's duties, forms concerning customer instructions for return of 
non-cash property and transfer of hedge positions, and a proof of claim 
form. The Commission later adopted Appendix B to provide guidance to a 
trustee on the appropriate distribution of property where an FCM's 
customers cross-margined non-proprietary futures positions with certain 
securities positions.\8\
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    \7\ 48 FR 8716 (March 1, 1983).
    \8\ 59 FR 17468 (April 13, 1994).
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    The proposed extension of Appendix B would have the effect of 
subordinating claims for Link property to claims for non-Link property 
when a shortfall in Link property was greater than the shortfall, if 
any, of non-Link property. The proposed amendment follows the guiding 
principles of Appendix B to Part 190: To assure that generally there is 
pro rata distribution to customers of the customer property in the 
bankrupt FCM's commodity interest estate and that the satisfaction of 
non-Link customer claims are not adversely affected by a shortfall in 
the pool of Link property. The proposed amendment is intended to assure 
that non-Link claims would never receive less than they would have 
received in the absence of the Link, but the distributional rule would 
not require Link-related claims to be subordinated in every instance.
    Under the proposal, a bankruptcy trustee handling the commodity 
interest estate of a bankrupt FCM with Link property first would have 
to determine the respective shortfalls, if any, in the pools of Link 
customer and non-Link customer segregated funds. The trustee would then 
calculate the shortfall in each pool as a percentage of the segregation 
requirement for the pool. In making this determination, any shortfall 
in Link property held overseas could be offset in whole or in part by 
any excess funds held by the FCM in segregation in the United States.
    If there were: (1) No shortfall in either of the two pools; (2) an 
equal percentage shortfall in the two pools; (3) a shortfall in the 
non-Link pool only; or (4) a greater percentage of shortfall in the 
non-Link pool than in the Link pool, then the two pools of segregated 
funds would be combined and Link customers and non-Link customers would 
share pro rata in the combined pool.\9\
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    \9\ See examples 1, 2, 5 and 6 of proposed Appendix B to part 
190, Framework 2.
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    However, if there were: (1) A shortfall in the Link pool only, or 
(2) a greater percentage of shortfall in the Link pool than in the non-
Link pool, then the two pools of segregated funds would not be 
combined.\10\ Rather, Link customers would share pro rata in the pool 
of Link segregated funds (including any excess funds held by the FCM in 
segregation in the U.S.), while non-Link customers would share pro rata 
in the pool of non-Link segregated funds. Further, if a pool of 
property initially would be treated as if it had a shortfall because 
frozen or otherwise unavailable as the result of government action, and 
later the freeze were lifted or funds became available, subsequent 
distribution would not be permitted to result in customers for whom 
funds were frozen receiving any greater distribution than a pro rata 
distribution for Section 4d (segregated funds) customers as a whole. To 
facilitate this distributional framework, subclasses of customer 
accounts, a Link account and a non-Link account would be recognized.
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    \10\ See examples 3 and 4 of proposed Appendix B to part 190, 
Framework 2.
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    Like the existing distribution system for a bankrupt FCM with 
customer claims related to cross-margining, the proposed Appendix would 
assure that non-Link customers would never receive less than they would 
have received in the absence of the Link. The proposed Framework to the 
Appendix is intended to eliminate the need for each customer who seeks 
to trade pursuant to the Link to execute a separate subordination 
agreement.

III. Request for Comments

    The Commission requests comments from interested persons concerning 
any aspect of the proposed amendment to Part 190, Appendix B, to govern 
the distribution of customer property related to trading on the 
proposed CBT-LIFFE Link.
    Any person interested in submitting written data, views, or 
arguments on the proposal should send such comments to Jean A. Webb, 
Secretary, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street, N.W., Washington, D.C. 20581 by the specified 
date. In addition, comments may be sent by facsimile transmission to 
facsimile number (202) 418-5521, or by electronic mail to 
[email protected]. Reference should be made to the proposed amendment 
to Part 190, Appendix B.

IV. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. sections 601-611 
(1988), requires that agencies, in proposing rules, consider the impact 
of those rules on small businesses. These rules would affect 
distributees of a bankrupt FCM's estate where the FCM had entered into 
a Link Clearing Agreement with a clearing member of LIFFE to transfer 
or accept the transfer of positions in Designated Link Contracts. The 
proposed appendix would eliminate the need for customers of FCMs who 
wish

[[Page 19532]]

to participate in the Link to execute a subordination agreement. 
Further, the distributional framework is intended to assure that non-
Link customers of such FCM would not be disadvantaged by a shortfall in 
the pool of Link funds. Persons participating in the Link will be 
provided with special risk disclosure related to such participants. 
Thus the adoption of this bankruptcy distributional rule should not in 
itself have a significant economic impact on such customers electing to 
participate but rather should operate to facilitate the Link 
arrangement. Therefore, the Chairperson, on behalf of the Commission, 
hereby certifies pursuant to 5 U.S.C. 605(b), that the action taken 
herein would not have a significant economic impact on a substantial 
number of small entities. The Commission nonetheless invites comments 
from any person or entity which believes that the proposal would have a 
significant impact on its operations.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (Pub. L. 104-13 (May 13, 1996)) 
imposes certain requirements on federal agencies (including the 
Commission) in connection with their conducting or sponsoring any 
collection of information as defined by the Paperwork Reduction Act. 
This rule would eliminate the need to execute a document and therefore 
would reduce rather than increase paperwork. While this rule has no 
burden, the group of rules (3038-0021) of which this is a part has the 
following burden:
    Average burden hours per response: 0.35.
    Number of Respondents: 802.
    Frequency of response: On occasion.
    Copies of the OMB approved information collection package 
associated with this rule may be obtained from Desk Officer, CFTC, 
Office of Management and Budget, Room 10202, NEOB Washington, D.C. 
20503, (202) 395-7340.

List of Subjects in 17 CFR Part 190

    Bankruptcy.

    Accordingly, the Commission pursuant to the authority contained in 
the Commodity Exchange Act and, in particular, Sections 1a, 2(a), 4c, 
4d, 4g, 5, 5a, 8a, 15, 19 and 20 thereof, 7 U.S.C. 1a, 2 and 4a, 6c, 
6d, 6g, 7, 7a, 12a, 19, 23 and 24 (1994), and in the Bankruptcy Code 
and, in particular, Sections 362, 546, 548, 556 and 761-766 thereof, 11 
U.S.C. 362, 546, 548, 556 and 761-766 (1994), hereby proposes to amend 
Part 190 of Chapter I of title 17 of the Code of Federal Regulations as 
follows:

PART 190--BANKRUPTCY

    1. The authority citation for Part 190 continues to read as 
follows:

    Authority: 7 U.S.C. 1a, 2, 4a, 6c, 6d, 6g, 7, 7a, 12, 19, 23 and 
24 and 11 U.S.C. 362, 546, 548, 566 and 761-766.

    2. Part 190 is proposed to be amended by adding to Appendix B 
thereof the following:

Appendix B to Part 190--Special Bankruptcy Distributions

* * * * *

Framework 2--Special Distribution of Customer Funds When FCM 
Participated in the Trading of Designated Link Contracts Pursuant to 
the CBT-LIFFE Link

    The Commission has established the following distributional 
convention with respect to Section 4d customer funds held by a 
futures commission merchant (``FCM'') that participates in the 
trading of Chicago Board of Trade (``CBT'')--designated contracts 
executed on the London International Financial Futures and Options 
Exchange (``LIFFE'') or LIFFE-designated contracts executed on CBT 
(``Designated Link Contracts'') pursuant to the CBT-LIFFE Link 
(``Link'') which shall apply if customers of the FCM have been 
provided with a notice which makes reference to this distributional 
rule and the form of such notice has been approved by the Commission 
by rule, regulation or order. The maintenance of property in a Link 
account would result in subordination of the claim for such property 
to certain non-Link customer claims in certain circumstances. This 
creates subclasses of customer accounts required to be segregated 
for purposes of Section 4d(2) of the Commodity Exchange Act: a Link 
account and a non-Link account (a person could hold each type of 
account), and results in two pools of customer segregated funds: a 
Link pool and a non-Link pool.
    In the event that there is a shortfall in the non-Link pool of 
customer segregated funds, and there is no shortfall in the Link 
pool of customer segregated funds, customer net equity claims, 
whether or not they arise out of the Link subclass of accounts, will 
be combined and will be paid pro rata out of the total pool of 
available Link and non-Link customer funds. In the event that there 
is a shortfall in the Link pool of customer segregated funds, and 
there is no shortfall in the non-Link pool of customer segregated 
funds, customer net equity claims arising from the non-Link subclass 
of accounts shall be satisfied from the non-Link customer segregated 
funds, and customer net equity claims arising from the Link subclass 
of accounts shall be paid from the Link customer segregated funds 
(and, if applicable, any excess funds held by the FCM in segregation 
in the U.S.). Furthermore, in the event that there is a shortfall in 
both the non-Link and Link pools of customer segregated funds: (1) 
If the non-Link shortfall as a percentage of the segregation 
requirement in the non-Link pool is greater than or equal to the 
Link shortfall as a percentage of the segregation requirement in the 
Link pool, customer net equity claims will be paid pro rata; and (2) 
if the Link shortfall as a percentage of the segregation requirement 
in the Link pool is greater than the non-Link shortfall as a 
percentage of the segregation requirement of the non-Link pool, non-
Link customer net equity claims would be paid pro rata out of the 
available non-Link segregated funds, and Link customer net equity 
claims would be paid pro rata out of the available Link segregated 
funds. In this way, non-Link customers will never be disadvantaged 
by a Link shortfall.\11\
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    \11\ Because Link property will be located offshore, it is 
possible that such property could be frozen by governmental action 
or become unavailable as the result of sovereign events. In that 
situation, should such property subsequently become available, the 
Link property account may acquire no greater distributional share 
than Section 4d(2) (segregated funds) customers generally.
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    The following examples illustrate the operation of this 
convention. The examples assume that the FCM has two customers, one 
with exclusively Link accounts and one with exclusively non-Link 
accounts. In practice, the FCM would have a customer omnibus account 
with a LIFFE clearing member or would itself be a LIFFE clearing 
member with its own customer omnibus account. Positions in 
Designated CBT Contracts traded at LIFFE and initially cleared by 
LCH would be allocated to this customer omnibus account; following 
the transfer of the positions via the Link, the FCM would allocate 
the positions and any gains or losses to its customers' accounts. 
Accordingly, a customer who trades Designated CBT Contracts at LIFFE 
may have the portion of his account which reflects his activity in 
the customer omnibus account at LIFFE deemed a Link account and the 
remainder of the account a non-Link account. Effectively this will 
result in the customer having two claims--one against Link property 
and one against non-Link property.\12\
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    \12\ Certain other property of the customers of the U.S. FCM 
also will be treated as ``Link property'' and part of the Link 
account for purposes of this Framework 2. In the case of Designated 
LIFFE Contracts traded on CBT, property received by the U.S. FCM to 
margin, guarantee or secure trades is included in the foreign 
futures and foreign options secured amount, pursuant to Commission 
Regulation 30.7. The BOTCC has requested a no action position to 
allow certain property in excess of the required secured amount to 
be used to meet original margin requirements for U.S. contracts 
under Section 4d(2) of the Act. Such excess property held in a 
``combined'' account but applied to margin requirements for U.S. 
contracts as Section 4d(2) property would also be ``Link property'' 
under this Framework.

[[Page 19533]]



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                                                           Non-link              Link                Total      
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                         1. Sufficient Funds to Meet Non-Link and Link Customer Claims:                         
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Funds in segregation................................                 150                 150                 300
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                   0                   0  ..................
Shortfall (percent).................................                   0                   0  ..................
Distribution........................................                 150                 150                 300
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   There are adequate funds available, and both the non-Link and Link customer claims will be paid in full.     
                                                                                                                
                                         2. Shortfall in Non-Link Only:                                         
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Funds in segregation................................                 100                 150                 250
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                  50                   0  ..................
Shortfall (percent).................................         50/150=33.3                   0  ..................
Pro Rata (percent)..................................          150/300=50          150/300=50  ..................
Pro Rata (dollars)..................................                 125                 125  ..................
Distribution........................................                 125                 125                 250
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   Due to the non-Link account, there are insufficient funds available to meet both the non-Link and the Link   
customer claims in full. Each customer will receive his or her pro rata share of the funds available, or 50% of 
the $250 available, or $125.                                                                                    
                                                                                                                
                                           3. Shortfall in Link Only:                                           
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Funds in segregation................................                 150                 100                 250
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                   0                  50  ..................
Shortfall (percent).................................                   0         50/150=33.3  ..................
Pro Rata (percent)..................................          150/300=50          150/300=50  ..................
Pro Rata (dollars)..................................                 125                 125  ..................
Distribution........................................                 150                 100                 250
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   Due to the Link account, there are insufficient funds available to meet both the non-Link and Link customer  
claims in full. Accordingly, the Link funds and non-Link funds are treated as separate pools, and the non-Link  
customer will be paid in full, receiving $150, while the Link customer would receive the remaining $100.        
                                                                                                                
                       4. Shortfall in Both, Link Shortfall Exceeding Non-Link Shortfall:                       
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Funds in segregation................................                 125                 100                 225
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                  25                  50  ..................
Shortfall (percent).................................         25/150=16.7         50/150=33.3  ..................
Pro Rata (percent)..................................          150/300=50          150/300=50  ..................
Pro Rata (dollars)..................................              112.50              112.50  ..................
Distribution........................................                 125                 100                 225
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   There are insufficient funds available to meet both the non-Link and Link customer claims in full, and the   
Link shortfall exceeds the non-Link shortfall. The non-Link customer will receive $125 available with respect to
non-Link claims while the Link customer will receive the $100 available with respect to the Link claims.        
                                                                                                                
                     5. Shortfall in Both, With Non-Link Shortfall Exceeding Link Shortfall:                    
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Funds in segregation................................                 100                 125                 225
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                  50                  25  ..................
Shortfall (percent).................................         50/150=33.3         25/150=16.7  ..................
Pro Rata (percent)..................................          150/300=50          150/300=50  ..................
Pro Rata (dollars)..................................              112.50              112.50  ..................
Distribution........................................              112.50              112.50                 225
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   There are insufficient funds available to meet both the non-Link and Link customer claims in full, and the   
non-Link shortfall exceeds the Link shortfall. Each customer will receive 50% of the $225 available, or $112.50.
                                                                                                                
                           6. Shortfall in Both, Non-Link Shortfall = Link Shortfall:                           
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Funds in segregation................................                 100                 100                 200
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                  50                  50  ..................
Shortfall (percent).................................         50/150=33.3         50/150=33.3  ..................
Pro Rata (percent)..................................          150/300=50          150/300=50  ..................
Pro Rata (dollars)..................................                 100                 100  ..................
Distribution........................................                 100                 100                 200
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[[Page 19534]]

                                                                                                                
  There are insufficient funds available to meet both the non-Link and the Link customer claims in full, and the
non-Link shortfall equals the Link shortfall. Each customer will receive 50% of the $200 available, or $100.    
                                                                                                                
  7. Shortfall in Link Account Caused by Freeze That Is Subsequently Lifted, Where Non-Link Account Had Actual  
                   Shortfall But Link Account Did Not Sub -sequent to Lifting of Freeze Order:                  
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Funds in segregation................................                 100              Frozen                 100
Segregation Requirement.............................                 150                 150                 300
Shortfall (dollars).................................                  50                 150  ..................
Shortfall (percent).................................         50/150=33.3         150/150=100  ..................
Pro Rata (percent)..................................          150/300=50          150/300=50  ..................
Pro Rata (dollars)..................................                  50                  50  ..................
Initial Distribution................................                 100                   0                 100
Freeze Lifted: Funds Previously Frozen..............                   0                 150                 150
Subsequent Distribution.............................                  25                 125  ..................
Total Distribution..................................                 125                 125                 250
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   Through the time of the initial distribution, this situation would follow the pattern of Example 4 because   
the shortfall in the Link account was larger. After the freeze was lifted, it would follow the pattern of       
Example 2 because the shortfall in the non-Link account was larger.                                             
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These examples illustrate the principle that pro rata distribution across both accounts is the preferable       
  approach except when a shortfall in the Link account could harm non-Link customers. Thus, pro rata            
  distribution occurs in Examples 1, 2, 5 and 6. Separate treatment of the Link and non-Link accounts occurs in 
  Examples 3 and 4. In Example 7, separate treatment occurs where the funds are frozen. It is adjusted to become
  pro rata treatment after the freeze is lifted.                                                                

    Issued in Washington, D.C. on April 16, 1997 by the Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 97-10338 Filed 4-21-97; 8:45 am]
BILLING CODE 6351-01-P