Primer on the Upcoming Registration Rules
Many investment managers who have been trading in the off-exchange spot forex markets have enjoyed considerable success. These managers also have not generally been subject to any registration or regulatory regimes because the spot forex markets are relatively unregulated. However, with the passage of the Farm Bill by Congress in 2008, off-exchange forex registration will become regulated in 2009 forcing forex managers to register with the CFTC.
CFTC and the NFA
The CFTC will be releasing proposed rules regarding the registration requirements within the next couple of months. After that time there will be a comment period where the rules can be reconsidered. After the rules are approved registration will probably be required by the end of 2009. The NFA will be in charge of many aspects of the registration process and they have already released much information on the registration process.
For example, the NFA has announced new registration categories which apply only to forex managers. These new registration categories are as follows: forex CPOs (firms or individuals who manage forex commodity pools or forex hedge funds), forex CTAs (firms or individuals who manage individual forex accounts), forex introducing brokers (firms or individuals who introduce forex managers to forex dealer members), and forex APs (associated persons - basically any employee of a forex firm except for administrative persons).
Series 34 Exam
The NFA is making forex managers (and forex introducing brokers) take the Series 34 exam which is a regulatory exam dealing with the off-exchange foreign currency markets. The Series 34 exam will consist of 5 sections and will deal with a number of topics. The NFA has stated that the exam will be one hour long. Like the other regulatory exams, the Series 34 will be administered by the Financial Industry Regulatory Agency (FINRA). The actual exam can be taken at testing locations throughout the United States through Pearson and Prometric testing centers.
Firms which are applying for any of the above designation categories will likely need to go through the standard NFA registration procedures. This will include submitting both a 7-R and an 8-R. Like regular CPO, CTA and IB applications, these forex applications should take around one month to be approved (assuming there are no issues with the application such as disciplinary history). The forex managers will then need to submit their disclosure documents to the NFA for review. This review process can take as little as two weeks, but it is likely to take much longer as the NFA staff becomes more comfortable with the intricacies of the forex disclosure documents as compared to normal disclosure documents.
Will registration be the end of the world?
First, forex registration is not the end of the world. In our experience (with regard to CPOs and CTAs), the registration process is relatively straightforward and can be completed relatively quickly. Submitting the forex disclosure documents to the NFA and getting those approved should also be a relatively painless experience. That is not to say, however, that you should attempt registration by yourself. Law firms and forex compliance firms will be able to help you through the registration process and will be able to get your business up and running fast. Ongoing compliance is relatively minimal - for most managers an NFA audit will be unlikely and, in the event of an audit there should not be a large impact on the business.
Forex registration will be here shortly. Many managers will actually benefit from registration as it will give potential investors some peace of mind that there is some oversight. We recommend that managers begin the registration process right now so that they will be a step ahead of other managers when the registration rules take effect. In any event, we will continue to keep you updated on any developments.
Bart Mallon is a hedge fund attorney specializing in forex registration and hedge fund formation. He also writes extensively on issues related to starting a hedge fund.
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