SECTION 11. FOREX DEALER MEMBER FINANCIAL REQUIREMENTS.
[Adopted Effective December 1, 2003. Effective dates of amendments: November 30, 2005; July 31, 2006; August 9, 2006; February 13, 2007; March 31, 2007; May 7, 2007; December 17, 2007; December 21, 2007; October 31, 2008; November 30, 2009; October 1, 2010; October 18, 2010; and February 1, 2011.]
(a) Each Forex Dealer Member must maintain "Adjusted Net Capital" (as defined in CFTC Regulation 5.7) equal to or in excess of the greatest of:
(ii) the amount required by subsection (a)(i) above plus 5% of all liabilities owed to customers (as customer is defined in Compliance Rule 2-36(m)) exceeding $10,000,000; or
(iii) For FCMs, any other amount required by Section 1 of these Financial Requirements.
(b) A Forex Dealer Member may not include assets held by an affiliate (unless approved by NFA) or an unregulated person in its current assets for purposes of determining its adjusted net capital under CFTC Regulation 5.7. An affiliate is any person that controls, is controlled by, or is under common control with the Forex Dealer Member.
For purposes of this section and section (c), a person is unregulated unless it is:
(i) a bank or trust company regulated by a U.S. banking regulator;
(ii) a broker-dealer registered with the U.S. Securities and Exchange Commission and a member of the Financial Industry Regulatory Authority;
(iii) a futures commission merchant registered with the U.S. Commodity Futures Trading Commission and a Member of NFA;
(iv) a retail foreign exchange dealer registered with the U.S. Commodity Futures Trading Commission and a Member of NFA;
(v) a bank or trust company regulated in a money center country which has in excess of $1 billion in regulatory capital; or
(vi) any other entity approved by NFA.
(c) A Forex Dealer Member may not use an affiliate (unless approved by NFA) or an unregulated person, as defined in section (b), to cover its currency positions for purposes of CFTC Regulation 5.7(b)(2)(v)(A).
(d) An FDM for which NFA is the DSRO that is required to file any document with or give any notice to its DSRO under CFTC Regulations 5.6 [Maintenance of minimum financial requirements by retail foreign exchange dealers and futures commission merchants offering or engaging in retail forex transactions], 5.7 [ Minimum financial requirements for retail foreign exchange dealers and future commission merchants offering or engaging in retail forex transactions] and 5.12 [Financial reports of retail foreign exchange dealers], or is required to file any financial report or statement with any other securities or futures self-regulatory organization of which it is a member shall also file one copy of such document with or give such notice to NFA at its Chicago office no later than the date such document or notice is due to be filed with or given to the CFTC or the self-regulatory organization.
(e) For purposes of this rule:
(1) "Forex" has the same meaning as in Bylaw 1507(b);
(2) "Forex Dealer Member" has the same meaning as in Bylaw 306; and
(3) As used in section (c), "currency" refers to open foreign currency positions with counterparties regardless of whether those counterparties are eligible contract participants as defined in Section 1a(12) of the Act.