§ 349.19 Recordkeeping. ( a ) *General rule.* An FDIC-supervised insured depository institution engaging in retail forex transactions shall keep full, complete and systematic records, together with all pertinent data and memoranda, pertaining to its retail forex business, including: ( 1 ) *Retail forex account records.* For each retail forex account: ( i ) The name and address of the person for whom the account is carried or introduced and the principal occupation or business of the person.
( ii ) The name of any other person guaranteeing the account or exercising trading control with respect to the account;
( iii ) The establishment or termination of the account; and
( iv ) A means to identify the person who has solicited and is responsible for the account or assign account numbers in such a manner as to identify that person.
( v ) The funds in the account, net of any commissions and fees;
( vi ) The account's net profits and losses on open trades;
( vii ) The funds in the account plus or minus the net profits and losses on open trades, adjusted for the net option value in the case of open options positions;
( viii ) Financial ledger records that show separately for each retail forex customer all charges against and credits to such retail forex customer's account, including deposits, withdrawals, and transfers, and charges or credits resulting from losses or gains on closed transactions; and
( ix ) A list of all retail forex transactions executed for the account, with the details specified in paragraph (a)(2) of this section;
( 2 ) *Retail forex transaction records.* For each retail forex transaction: ( i ) The price at which the FDIC-supervised insured depository institution placed the order, or, in the case of an option, the premium that the retail forex customer paid;
( ii ) The customer account identification information;
( iii ) The currency pair;
( iv ) The size or quantity of the order;
( v ) Whether the order was a buy or sell order;
( vi ) The type of order, if the order was not a market order;
( vii ) The size and price at which the order is executed, or in the case of an option, the amount of the premium paid for each option purchased, or the amount credited for each option sold;
( viii ) For options, whether the option is a put or call, expiration date, quantity, underlying contract for future delivery or underlying physical, strike price, and details of the purchase price of the option, including premium, mark-up, commission, and fees; and
( ix ) For futures, the delivery date; and
( x ) If the order was made on a trading platform: ( A ) The price quoted on the trading platform when the order was placed, or, in the case of an option, the premium quoted;
( B ) The date and time the order was transmitted to the trading platform; and
( C ) The date and time the order was executed;
( 3 ) *Price changes on a trading platform.* If a trading platform is used, daily logs showing each price change on the platform, the time of the change to the nearest second, and the trading volume at that time and price;
( 4 ) *Methods or algorithms.* Any method or algorithm used to determine the bid or asked price for any retail forex transaction or the prices at which customer orders are executed, including, but not limited to, any markups, fees, commissions or other items which affect the profitability or risk of loss of a retail forex customer's transaction;
( 5 ) *Daily records* which show for each business day complete details of: ( i ) All retail forex transactions that are futures transactions executed on that day, including the date, price, quantity, market, currency pair, delivery date, and the person for whom such transaction was made;
( ii ) All retail forex transactions that are option transactions executed on that day, including the date, whether the transaction involved a put or call, the expiration date, quantity, currency pair, delivery date, strike price, details of the purchase price of the option, including premium, mark-up, commission and fees, and the person for whom the transaction was made;
( iii ) All other retail forex transactions executed on that day for such account, including the date, price, quantity, currency and the person for whom such transaction was made; and
( 6 ) *Other records.* Written acknowledgements of receipt of the risk disclosure statement required by § 349.18(b), records required under paragraph (b) through (f) of this section, trading cards, signature cards, street books, journals, ledgers, payment records, copies of statements of purchase, and all other records, data and memoranda that have been prepared in the course of the FDIC-supervised insured depository institution's retail forex business.
( b ) *Ratio of profitable accounts.* ( 1 ) With respect to its active retail forex customer accounts over which it did not exercise investment discretion and that are not retail forex proprietary accounts open for any period of time during the quarter, an FDIC-supervised insured depository institution shall prepare and maintain on a quarterly basis (calendar quarter): ( i ) A calculation of the percentage of such accounts that were profitable;
( ii ) A calculation of the percentage of such accounts that were not profitable; and
( iii ) Data supporting the calculations described in paragraphs (b)(1)(i) and (b)(1)(ii) of this section.
( 2 ) In calculating whether a retail forex account was profitable or not profitable during the quarter, the FDIC-supervised insured depository institution shall compute the realized and unrealized gains or losses on all retail forex transactions carried in the retail forex account at any time during the quarter, and subtract all fees, commissions, and any other charges posted to the retail forex account during the quarter, and add any interest income and other income or rebates credited to the retail forex account during the quarter. All deposits and withdrawals of funds made by the retail forex customer during the quarter must be excluded from the computation of whether the retail forex account was profitable or not profitable during the quarter. Computations that result in a zero or negative number shall be considered a retail forex account that was not profitable. Computations that result in a positive number shall be considered a retail forex account that was profitable.
( 3 ) A retail forex account shall be considered “active” for purposes of paragraph (b)(1) of this section if and only if, for the relevant calendar quarter, a retail forex transaction was executed in that account or the retail forex account contained an open position resulting from a retail forex transaction.
( c ) *Records related to possible violations of law.* An FDIC-supervised insured depository institution engaging in retail forex transactions shall make a record of all communications, including customer complaints, received by the FDIC-supervised insured depository institution or its IAPs concerning facts giving rise to possible violations of law related to the FDIC-supervised insured depository institution's retail forex business. The record shall contain: the name of the complainant, if provided; the date of the communication; the relevant agreement, contract, or transaction; the substance of the communication; the name of the person who received the communication, and the final disposition of the matter.
( d ) *Records for noncash margin.* An FDIC-supervised insured depository institution shall maintain a record of all noncash margin collected pursuant to § 349.21. The record shall show separately for each retail forex customer: ( 1 ) A description of the securities or property received;
( 2 ) The name and address of such retail forex customer;
( 3 ) The dates when the securities or property were received;
( 4 ) The identity of the depositories or other places where such securities or property are segregated or held, if applicable;
( 5 ) The dates in which the FDIC-supervised insured depository institution placed or removed such securities or property into or from such depositories; and
( 6 ) The dates of return of such securities or property to such retail forex customer, or other disposition thereof, together with the facts and circumstances of such other disposition.
( e ) *Order Tickets.* ( 1 ) Except as provided in paragraph (e)(2) of this section, immediately upon the receipt of a retail forex transaction order, an FDIC-supervised insured depository institution must prepare an order ticket for the order (whether unfulfilled, executed, or canceled). The order ticket must include: ( i ) Account identification (account or customer name with which the retail forex transaction was effected);
( ii ) Order number;
( iii ) Type of order (market order, limit order, or subject to special instructions);
( iv ) Date and time, to the nearest minute, the retail forex transaction order was received (as evidenced by timestamp or other timing device);
( v ) Time, to the nearest minute, the retail forex transaction order was executed; and
( vi ) Price at which the retail forex transaction was executed.
( 2 ) *Post-execution allocation of bunched orders.* Specific identifiers for retail forex accounts included in bunched orders need not be recorded at time of order placement or upon report of execution as required under paragraph (e)(1) of this section if the following requirements are met: ( i ) The FDIC-supervised insured depository institution placing and directing the allocation of an order eligible for post-execution allocation has been granted written investment discretion with regard to participating customer accounts and makes the following information available to retail forex customers upon request: ( A ) The general nature of the post-execution allocation methodology the FDIC-supervised insured depository institution will use;
( B ) Whether the FDIC-supervised insured depository institution has any interest in accounts which may be included with customer accounts in bunched orders eligible for post-execution allocation; and
( C ) Summary or composite data sufficient for that customer to compare its results with those of other comparable customers and, if applicable, any account in which the FDIC-supervised insured depository institution has an interest.
( ii ) Post-execution allocations are made as soon as practicable after the entire transaction is executed;
( iii ) Post-execution allocations are fair and equitable, with no account or group of accounts receiving consistently favorable or unfavorable treatment; and
( iv ) The post-execution allocation methodology is sufficiently objective and specific to permit the FDIC to verify the fairness of the allocations using that methodology.
( f ) *Record of monthly statements and confirmations.* An FDIC-supervised insured depository institution shall retain a copy of each monthly statement and confirmation required by § 349.22.
( g ) *Manner of maintenance.* The records required by this section must clearly and accurately reflect the information required and provide an adequate basis for the audit of the information. Record maintenance may include the use of automated or electronic records provided that the records are easily retrievable, readily available for inspection, and capable of being reproduced in hard copy.
( h ) *Length of maintenance.* An FDIC-supervised insured depository institution shall keep each record required by this section for at least five years from the date the record is created.
[76 FR 40789, July 12, 2011. Redesignated and amended at 80 FR 74912, Nov. 30, 2015]