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January 25, 2008
Effective Date of Amendments to the Interpretive Notice Regarding Forex Transactions
NFA has received notice that the Commodity Futures Trading Commission has approved amendments to the disclosure section of the Interpretive Notice entitled "Forex Transactions." The amendments will become effective on June 1, 2008.
The amendments require prescribed disclosure language that makes clear to customers that a Forex Dealer Member ("FDM") is acting as a counterparty in forex transactions and may profit from the market moving against the customer. The amendments require the disclosure to be prominently displayed in uppercase letters in at least 10 point size type and to be separately acknowledged by the customer. The amendments also give NFA staff the authority to approve alternative language in certain circumstances.
FDMs do not need to obtain an acknowledgement from existing customers or persons who become customers prior to June 1, 2008. FDMs must, however, provide the disclosure to those retail customers in a manner designed to ensure that they actually receive it. For example, merely including the disclosure on the firm's web site is not adequate, but sending customers an e-mail with the disclosure would be sufficient in most circumstances.
A copy of the relevant section with amendments marked is attached for your convenience. Additionally, NFA's November 29, 2007, submission letter to the CFTC contains a more detailed explanation of the changes. You can access an electronic copy of the submission letter at http://www.nfa.futures.org/news/newsRuleSubLetter.asp?ArticleID=2009.
Questions concerning these changes should be directed to Sharon Pendleton, Director, Compliance (email@example.com or 312-781-1401) or Michael A. Piracci, Senior Attorney (firstname.lastname@example.org or 312-781-1419).
B. COMPLIANCE RULE 2-36
1. Disclosure - Members must provide retail forex customers with understandable and timely disclosure on essential features of forex trading
At or before the time a customer first engages in a forex transaction, a Member and its Associates should disclose how the Member will be compensated for the services it will provide to the customer.
Additionally, a Forex Dealer Member must describe to the customer the nature of these foreign currency transactions. Therefore, a Forex Dealer Member must provide, and the customer must separately acknowledge receipt of, either the following disclosure language or other appropriate language (based upon the Forex Dealer Member's business model) approved by NFA staff, which must be prominently displayed in all uppercase letters and in 10 point size type or larger but in any event no smaller than any surrounding type:
THE FOREIGN CURRENCY TRADING YOU ARE ENTERING INTO IS NOT CONDUCTED ON AN EXCHANGE. [MEMBER] IS ACTING AS A COUNTERPARTY IN THESE TRANSACTIONS AND, THEREFORE, ACTS AS THE BUYER WHEN YOU SELL AND THE SELLER WHEN YOU BUY. AS A RESULT, [MEMBER]'S INTERESTS MAY BE IN CONFLICT WITH YOURS. UNLESS OTHERWISE SPECIFIED IN YOUR WRITTEN AGREEMENT OR OTHER WRITTEN DOCUMENTS [MEMBER] ESTABLISHES THE PRICES AT WHICH IT OFFERS TO TRADE WITH YOU. THE PRICES [MEMBER] OFFERS MIGHT NOT BE THE BEST PRICES AVAILABLE AND [MEMBER] MAY OFFER DIFFERENT PRICES TO DIFFERENT CUSTOMERS.
IF [MEMBER] ELECTS NOT TO COVER ITS OWN TRADING EXPOSURE, THEN YOU SHOULD BE AWARE THAT [MEMBER] MAY MAKE MORE MONEY IF THE MARKET GOES AGAINST YOU. ADDITIONALLY, SINCE [MEMBER] ACTS AS THE BUYER OR SELLER IN THE TRANSACTION, YOU SHOULD CAREFULLY EVALUATE ANY TRADE RECOMMENDATIONS YOU RECEIVE FROM [MEMBER] OR ANY OF ITS SOLICITORS.