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SECTION 14. ASSETS COVERING LIABILITIES TO RETAIL FOREX CUSTOMERS.
[Adopted Effective July 1, 2007. Effective dates of amendments: December 17, 2007; February 1, 2011; July 26, 2012; and October 15, 2014.]
(a) Each Forex Dealer Member shall calculate the amount owed to customers for forex transactions and shall hold assets equal to or in excess of that amount at one or more qualifying institutions in the United States or money center countries (as defined in CFTC Regulation 1.49).
(b) The amount owed to customers shall be calculated by adding up the net liquidating values of each forex account that liquidates to a positive number, using the fair market value for each asset other than open positions and the current market value for open positions.
(c) For assets held in the United States, a qualifying institution 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; or
(iii) a futures commission merchant registered with the U.S. Commodity Futures Trading Commission and a Member of NFA.
(d) For assets held in a money center country as defined in CFTC Regulation 1.49, a qualifying institution is:
(i) a bank or trust company regulated in the money center country which has in excess of $1 billion in regulatory capital; or
(ii) a futures commission merchant registered with the U.S. Commodity Futures Trading Commission and a Member of NFA.
(e) Assets held in a money center country are not eligible to meet the requirements of this rule unless the Forex Dealer Member and the qualifying institution have entered into an agreement, acceptable to NFA, authorizing the institution to provide NFA and the CFTC with information regarding the Forex Dealer Member's accounts and to provide that information directly to NFA or the CFTC upon their request. The Forex Dealer Member must file the signed agreement with NFA.
(f) Each Forex Dealer Member must instruct each qualifying institution, as required by NFA, holding assets used to cover the Forex Dealer Member's liabilities to its retail forex customers under subsection (a), to report the balances in the Forex Dealer Member's account(s) to NFA or a third party designated by NFA in the form and manner prescribed by NFA.
(g) In addition to the requirements of subsections (c), (d) and (e), in order to be an acceptable qualifying institution to hold assets used to cover a Forex Dealer Member's liabilities to its retail forex customers identified in subsection (a), the qualifying institution must report the balances in the Forex Dealer Member's account(s) held at the qualifying institution to NFA or a third party designated by NFA in the form and manner prescribed by NFA.