FINRA just clarified a question that has been a thorn in the side for many outsourced FINOPs and their broker-dealer clients for many years: Are FINOPs required to make on-site inspections of their clients’ records to fulfill their regulatory duties? The short answer: No.
FINRA examiners had been using a 2006 Notice to Members to effectively attempt to obligate FINOPS to go onsite on a periodic basis. While this Notice to Members was not technically a rule, FINRA seemed to insist that FINOPS needed to be physically onsite to oversee the regulatory activities of the firms at which they were registered, irrespective of the securities activities or risk profile of the member firm. Examinations occasionally have even tried to cite firms if the FINOP could not demonstrate an annual onsite visit.
In reality, many outsourced FINOPS service small, limited purpose broker-dealers, who do not hold customer funds nor pose any inherent risk to the investing public. Access to the books and records, bank statements and vendor invoices, and supplementing FINOP reviews with financial statement approvals by internal, full-time, supervisory principals, generally has been sufficient to ensure controls are in place and accurate reporting is not compromised.
In a new FAQ, FINRA has made clear that FINOPs is not required to conduct an on-site visit “if the FINOP can fulfil his or her obligations through other means.”
Advocating for FINOPs and their clients
ACI Managing Partner, Jay Gettenberg, as a member of FINRA’s Small Firm Advisory Committee (SFAC) has long been an advocate for FINRA to make clear that on-site inspections were not necessary. The travel restrictions due to COVID-19 added urgency to the need for FINRA to act.
“The fact is, over the last six months FINOPs have done their jobs remotely, without the industry crumbling,” Gettenberg said. “It’s important that FINRA recognize this and amend their guidance to mirror the new reality. If FINRA and SEC claim that they can continue cycle examinations remotely, then the argument should hold true for FINOPs being able to perform their supervisory responsibilities in the same manner.”
The new guidance provides relief to FINOPS to make risk-based assessments into how to perform their duties most effectively, Gettenberg said. He plans to continue to advocate for changes that will help FINOPs and their clients fulfill their compliance duties as the economy emerges from the lockdown.
Answering the On-Site Inspections FAQ
Here is the full wording of the FAQ:
I am registered as a Financial and Operations Principal (FINOP) for several firms and conduct my work off-site. Do I need to conduct an on-site inspection of the firms’ books and records as part of fulfilling my FINOP obligations?
All FINOPs, regardless of whether they work part-time, work off site or hold multiple registrations are responsible for fulfilling the duties outlined in FINRA Rule 1220(a)(4)(A). FINRA has previously provided guidance to member firms to help them assist their FINOPs in fulfilling the obligations specified in Rule 1220(a)(4)(A). See Notice to Members 06-23 (May 2006). The guidance, which includes a provision regarding on-site visits, should not be viewed as requirements (i.e., a FINOP is not required to conduct an on-site visit if the FINOP can fulfill his or her obligations through other means). A member firm’s written supervisory procedures, however, may impose additional requirements for FINOPs, such as an on-site visit to review a location’s books and records. In addition, nothing in this guidance relieves a firm from the obligation to conduct periodic office inspections in accordance with the requirements of Rule 3110(c).
ACI will provide updates on our Resources page as we continue to work with the SEC and FINRA on matters that affect FINOPS and our clients.