[Federal Register Volume 80, Number 248 (Monday, December 28, 2015)]
[Proposed Rules]
[Pages 80884-80996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31704]



[[Page 80883]]

Vol. 80

Monday,

No. 248

December 28, 2015

Part II





Securities and Exchange Commission





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17 CFR Parts 270 and 274





Use of Derivatives by Registered Investment Companies and Business 
Development Companies; Proposed Rule

Federal Register / Vol. 80 , No. 248 / Monday, December 28, 2015 / 
Proposed Rules

[[Page 80884]]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 270 and 274

[Release No. IC-31933; File No. S7-24-15]
RIN 3235-AL60


Use of Derivatives by Registered Investment Companies and 
Business Development Companies

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (the ``Commission'' or 
``SEC'') is proposing rule 18f-4, a new exemptive rule under the 
Investment Company Act of 1940 (the ``Investment Company Act'' or 
``Act'') designed to address the investor protection purposes and 
concerns underlying section 18 of the Act and to provide an updated and 
more comprehensive approach to the regulation of funds' use of 
derivatives. The proposed rule would permit mutual funds, exchange-
traded funds (``ETFs''), closed-end funds, and companies that have 
elected to be treated as business development companies (``BDCs'') 
under the Act (collectively, ``funds'') to enter into derivatives 
transactions and financial commitment transactions (as those terms are 
defined in the proposed rule) notwithstanding the prohibitions and 
restrictions on the issuance of senior securities under section 18 of 
the Act, provided that the funds comply with the conditions of the 
proposed rule. A fund that relies on the proposed rule in order to 
enter into derivatives transactions would be required to: comply with 
one of two alternative portfolio limitations designed to impose a limit 
on the amount of leverage the fund may obtain through derivatives 
transactions and other senior securities transactions; manage the risks 
associated with the fund's derivatives transactions by maintaining an 
amount of certain assets, defined in the proposed rule as ``qualifying 
coverage assets,'' designed to enable the fund to meet its obligations 
under its derivatives transactions; and, depending on the extent of its 
derivatives usage, establish a formalized derivatives risk management 
program. A fund that relies on the proposed rule in order to enter into 
financial commitment transactions would be required to maintain 
qualifying coverage assets equal in value to the fund's full 
obligations under those transactions. The Commission also is proposing 
amendments to proposed Form N-PORT and proposed Form N-CEN that would 
require reporting and disclosure of certain information regarding a 
fund's derivatives usage.

DATES: Comments should be received on or before March 28, 2016.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/concept.shtml);
     Send an email to [email protected]. Please include 
File Number S7-24-15 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments to Brent J. Fields, Secretary, 
Securities and Exchange Commission, 100 F Street NE., Washington, DC 
20549-1090.

All submissions should refer to File Number S7-24-15. This file number 
should be included on the subject line if email is used. To help the 
Commission process and review your comments more efficiently, please 
use only one method. The Commission will post all comments on the 
Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments also are available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. All comments received will be posted without 
change; the Commission does not edit personal identifying information 
from submissions. You should submit only information that you wish to 
make publicly available.
    Studies, memoranda or other substantive items may be added by the 
Commission or staff to the comment file during this rulemaking. A 
notification of the inclusion in the comment file of any such materials 
will be made available on the Commission's Web site. To ensure direct 
electronic receipt of such notifications, sign up through the ``Stay 
Connected'' option at www.sec.gov to receive notifications by email.

FOR FURTHER INFORMATION CONTACT: With respect to proposed rule 18f-4, 
Adam Bolter, Jamie Lynn Walter, or Erin C. Loomis, Senior Counsels; 
Thoreau A. Bartmann, Branch Chief; Brian McLaughlin Johnson, Senior 
Special Counsel; or Aaron Schlaphoff or Danforth Townley, Attorney 
Fellows; and with respect to the proposed amendments to Form N-PORT and 
Form N-CEN, Jacob D. Krawitz, Senior Counsel, or Sara Cortes, Senior 
Special Counsel, at (202)-551-6792, Investment Company Rulemaking 
Office, Division of Investment Management, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-8549.

SUPPLEMENTARY INFORMATION: The Commission is proposing rule 18f-4 [17 
CFR 270.18f-4] under the Investment Company Act of 1940 [15 U.S.C. 80a] 
and amendments to proposed Form N-PORT and proposed Form N-CEN.

Table of Contents

I. Introduction
II. Background
    A. Background Concerning the Use of Derivatives by Funds
    B. Derivatives and the Senior Securities Restrictions of the 
Investment Company Act
    1. Requirements of Section 18
    2. Investment Company Act Release 10666
    3. Developments after Investment Company Act Release No. 10666
    4. Current Views Concerning Section 18
    C. Review of Funds' Use of Derivatives
    D. Need for a New Approach
    1. The Current Regulatory Framework and the Purposes and 
Policies Underlying the Act
    2. Need for an Updated and More Comprehensive Approach
III. Discussion
    A. Structure and Scope of Proposed Rule 18f-4
    1. Structure of Proposed Rule 18f-4
    2. Definitions of Derivatives Transactions and Financial 
Commitment Transactions
    B. Portfolio Limitations for Derivatives Transactions
    1. Exposure-Based Portfolio Limit
    2. Risk-Based Portfolio Limit
    3. Implementation and Operation of Portfolio Limitations
    C. Asset Segregation Requirements for Derivatives Transactions
    1. Coverage Amount for Derivatives Transactions
    2. Qualifying Coverage Assets
    D. Derivatives Risk Management Program
    1. Funds Subject to the Proposed Risk Management Program 
Condition
    2. Required Elements of the Program
    3. Administration of the Program
    4. Board Approval and Oversight
    E. Requirements for Financial Commitment Transactions
    1. Coverage Amount for Financial Commitment Transactions
    2. Qualifying Coverage Assets for Financial Commitment 
Transactions
    F. Recordkeeping
    G. Amendments to Proposed Forms N-PORT and N-CEN
    1. Reporting of Risk Metrics by Funds That Are Required To 
Implement a Derivatives Risk Management Program
    2. Amendments to Proposed Form N-PORT
    3. Amendments to Proposed Form N-CEN
    4. Request for Comment
    H. Request for Comments
    I. Proposed Rule 18f-4 and Existing Guidance

[[Page 80885]]

IV. Economic Analysis
    A. Introduction and Primary Goals of Proposed Regulation
    B. Economic Baseline
    C. Economic Impacts, Including Effects on Efficiency, 
Competition, and Capital Formation
    D. Specific Benefits and Quantifiable Costs
    1. Exposure-Based Portfolio Limit
    2. Risk-Based Portfolio Limit
    3. Asset Segregation
    4. Risk Management Program
    5. Financial Commitment Transactions
    6. Amendments to Form N-PORT To Report Risk Metrics by Funds 
That Are Required To Implement a Derivatives Risk Management Program
    7. Amendments to Form N-CEN To Report Reliance on Proposed Rule 
18f-4
    E. Reasonable Alternatives
    F. Request for Comment
V. Paperwork Reduction Act
    A. Introduction
    B. Proposed Rule 18f-4
    1. Portfolio Limitations for Derivatives Transactions
    2. Asset Segregation: Derivatives Transactions
    3. Asset Segregation: Financial Commitment Transactions
    4. Derivatives Risk Management Program
    5. Amendments to Form N-PORT
    6. Amendments to Form N-CEN
    C. Request for Comments
VI. Initial Regulatory Flexibility Act Analysis
    A. Reasons for and Objectives of the Proposed Actions
    B. Legal Basis
    C. Small Entities Subject to Proposed Rule 18f-4 and Amendments 
to Form N-PORT and Form N-CEN
    D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    1. Portfolio Limitations for Derivatives Transactions
    2. Asset Segregation
    3. Derivatives Risk Management Program
    4. Financial Commitment Transactions
    5. Amendments to Proposed Form N-PORT
    6. Amendments to Form N-CEN
    E. Duplicative, Overlapping, or Conflicting Federal Rules
    F. Significant Alternatives
    1. Proposed Rule 18f-4
    2. Form N-PORT and Form N-CEN
    G. General Request for Comment
VII. Consideration of Impact on the Economy
VII. Statutory Authority

I. Introduction

    The activities and capital structures of funds are regulated 
extensively under the Investment Company Act,\1\ Commission rules, and 
Commission guidance.\2\ The use of derivatives by funds implicates 
certain requirements under the Investment Company Act, including 
section 18 of that Act. As discussed in more detail below, section 18 
limits a fund's ability to obtain leverage or incur obligations to 
persons other than the fund's common shareholders through the issuance 
of senior securities, as defined in that section.
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    \1\ 15 U.S.C. 80a. Unless otherwise noted, all references to 
statutory sections are to the Investment Company Act, and all 
references to rules under the Investment Company Act, including 
proposed rule 18f-4, will be to title 17, part 270 of the Code of 
Federal Regulations, 17 CFR part 270.
    \2\ Our staff has also issued no-action and other letters that 
relate to fund use of derivatives. In addition to Investment Company 
Act provisions, funds using derivatives (and financial commitment 
transactions) must comply with all other applicable statutory and 
regulatory requirements, such as other federal securities law 
provisions, the Internal Revenue Code (the ``IRC''), Regulation T of 
the Federal Reserve Board (``Regulation T''), and the rules and 
regulations of the Commodity Futures Trading Commission (the 
``CFTC''). See also Title VII of the Dodd-Frank Wall Street Reform 
and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 
(2010) (the ``Dodd-Frank Act''), available at http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf.
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    Derivatives may be broadly described as instruments or contracts 
whose value is based upon, or derived from, some other asset or metric 
(referred to as the ``reference asset,'' ``underlying asset'' or 
``underlier'').\3\ Funds employ derivatives for a variety of purposes, 
including to: Seek higher returns through increased investment 
exposures; hedge interest rate, credit, and other risks in their 
investment portfolios; gain access to certain markets; and achieve 
greater transaction efficiency.\4\ At the same time, derivatives can 
raise risks for a fund relating to, for example, leverage, illiquidity 
(particularly with respect to complex over-the-counter (``OTC'') 
derivatives), counterparties, and the ability of the fund to meet its 
obligations.\5\
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    \3\ See Use of Derivatives by Investment Companies under the 
Investment Company Act of 1940, Investment Company Act Release No. 
29776 (Aug. 31, 2011) [76 FR 55237 (Sept. 7, 2011)] (``Concept 
Release''), at n.3.
    \4\ See Concept Release, supra note 3, at n.5.
    \5\ See Concept Release, supra note 3, at n.6. As discussed in 
Open-End Fund Liquidity Risk Management Programs; Swing Pricing; Re-
Opening of Comment Period for Investment Company Reporting 
Modernization Release, Investment Company Act Release No. 31835 
(Sept. 22, 2015) [80 FR 62273 (Oct. 15, 2015)] (``Liquidity 
Release''), long-standing Commission guidelines generally limit an 
open-end fund's aggregate holdings of ``illiquid'' assets to 15% of 
the fund's net assets. Under these guidelines, an asset is 
considered illiquid if it cannot be sold or disposed of in the 
ordinary course of business within seven days at approximately the 
value at which the fund has valued the investment. These guidelines 
apply to all investments (including derivatives) held by an open-end 
fund. Proposed rule 22e-4, which we proposed in September 2015, 
would codify this standard along with other requirements that are 
designed to promote effective liquidity risk management for open-end 
funds.
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    We are committed, as the primary regulator of funds, to designing 
regulatory programs that respond to the risks associated with the 
increasingly complex portfolio composition and operations of the asset 
management industry. The dramatic growth in the volume and complexity 
of the derivatives markets over the past two decades, and the increased 
use of derivatives by certain funds,\6\ led us to initiate a review of 
funds' use of derivatives under the Investment Company Act to evaluate 
whether the regulatory framework, as it applied to funds' use of 
derivatives, continues to fulfill the purposes and policies underlying 
the Act and is consistent with investor protection. We published a 
Concept Release on funds' use of derivatives in 2011 (the ``Concept 
Release'') to assist with this review and solicit public comment on the 
current regulatory framework.\7\ As noted in the Concept Release, our 
staff has been exploring the benefits, risks, and costs associated with 
funds' use of derivatives. Our staff's review of these and other 
matters, together with input from commenters on the Concept Release and 
others, have informed our consideration of the regulation of funds' use 
of derivatives, including in particular whether funds' current 
practices, based on their application of Commission and staff guidance, 
are consistent with the investor protection purposes and concerns 
underlying section 18 of the Investment Company Act.
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    \6\ See Concept Release, supra note 3, at n.7. See also infra 
section II.
    \7\ See Concept Release, supra note 3.
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    Today, we are proposing new rule 18f-4, which is designed to 
address the investor protection purposes and concerns underlying 
section 18 and to provide an updated and more comprehensive approach to 
the regulation of funds' use of derivatives transactions and other 
transactions that implicate section 18 in light of the dramatic growth 
in the volume and complexity of the derivatives markets over the past 
two decades and the increased use of derivatives by certain funds. As 
discussed in more detail below, the proposed rule would permit a fund 
to enter into derivatives and financial commitment transactions, 
notwithstanding the prohibitions and restrictions on the issuance of 
senior securities under section 18 of the Act, provided that the fund 
complies with the conditions of the proposed rule. The proposed rule's 
conditions are designed both to impose a limit on the leverage a fund 
may obtain through the use of derivatives and financial commitment 
transactions and other senior securities transactions, and to require 
the fund to have assets available to meet its obligations arising from 
those transactions, both of which are central

[[Page 80886]]

investor protection purposes and concerns underlying section 18. The 
proposed rule also would require funds that engage in more than a 
limited amount of derivatives transactions or that use certain complex 
derivatives transactions, as defined in the proposed rule, to establish 
formalized risk management programs to manage the risks associated with 
such transactions.

II. Background

A. Background Concerning the Use of Derivatives by Funds

    As noted above, derivatives may be broadly described as instruments 
or contracts whose value is based upon, or derived from, some reference 
asset. Reference assets can include, for example, stocks, bonds, 
commodities, currencies, interest rates, market indices, currency 
exchange rates, or other assets or interests.\8\ Common examples of 
derivatives used by funds include forwards, futures, swaps, and 
options.\9\
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    \8\ For example, the reference asset of a Standard & Poor's 
(``S&P'') 500 futures contract is the S&P 500 index.
    \9\ See, e.g., Concept Release, supra note 3, at nn.35-46 and 
accompanying text.
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    Derivatives are often characterized as either exchange-traded or 
OTC.\10\ Exchange-traded derivatives--such as futures,\11\ certain 
options,\12\ and options on futures \13\--are standardized contracts 
traded on regulated exchanges, such as the Chicago Mercantile Exchange 
and the Chicago Board Options Exchange. OTC derivatives--such as 
certain swaps,\14\ non-exchange traded options, and combination 
products such as swaptions \15\ and forward swaps \16\--are contracts 
negotiated and entered into outside of an organized exchange. Unlike 
exchange-traded derivatives, OTC derivatives may be significantly 
customized, and may not be cleared by a central clearing organization. 
OTC derivatives that are not centrally cleared may involve greater 
counterparty credit risk, and may be more difficult to value, transfer, 
or liquidate than exchange-traded derivatives.\17\ The Dodd-Frank Act 
and rules thereunder seek to establish a comprehensive new regulatory 
framework for two broad categories of derivatives--swaps and security-
based swaps. The framework is designed to reduce risk, increase 
transparency, and promote market integrity within the financial 
system.\18\
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    \10\ See Concept Release, supra note 3, at n.22.
    \11\ A futures contract is a standardized contract between two 
parties to buy or sell a specified asset of standardized quantity 
and quality, for an agreed upon price (the ``futures price'' or 
``strike price''), with delivery and payment occurring at a 
specified future date (the ``delivery date''). The contracts are 
negotiated on a futures exchange which acts as an intermediary 
between the two parties. The party agreeing to buy the underlying 
asset in the future, the ``buyer'' of the contract, is said to be 
``long,'' and the party agreeing to sell the asset in the future, 
the ``seller'' of the contract, is said to be ``short.'' The long 
position (buyer) hopes or expects that the asset price is going to 
increase, while the short position (seller) hopes or expects that it 
will decrease. For a general discussion of futures contracts, see, 
e.g., John C. Hull, Options, Futures, and Other Derivatives (9th ed. 
2015), at 24.
    \12\ An option is the right to buy or sell an asset. There are 
two basic types of options, a ``call option'' and a ``put option.'' 
A call option gives the holder the right (but does not impose the 
obligation) to buy the underlying asset by or at a certain date for 
a certain price. The seller, or ``writer,'' of a call option has the 
obligation to sell the underlying asset to the holder if the holder 
exercises the option. A put option gives the holder the right (but 
does not impose the obligation) to sell the underlying asset by or 
at a certain date for a certain price. The seller, or ``writer,'' of 
a put option has the obligation to buy from the holder the 
underlying asset if the holder exercises the option. The price that 
the option holder must pay to exercise the option is known as the 
``exercise'' or ``strike'' price. The amount that the option holder 
pays to purchase an option is known as the ``option premium,'' 
``price,'' ``cost,'' or ``fair value'' of the option. See Concept 
Release, supra note 3, at n.23.
    \13\ Options on futures generally trade on the same exchange as 
the relevant futures contract. When a call option on a futures 
contract is exercised, the holder acquires from the writer a long 
position in the underlying futures contract plus a cash amount equal 
to the excess of the futures price over the strike price. When a put 
option on a futures contract is exercised, the holder acquires a 
short position in the underlying futures contract plus a cash amount 
equal to the excess of the strike price over the futures price. See 
Concept Release, supra note 3, at n.24.
    \14\ A ``swap'' is generally an agreement between two 
counterparties to exchange periodic payments based upon the value or 
level of one or more rates, indices, assets, or interests of any 
kind. For example, counterparties may agree to exchange payments 
based on different currencies or interest rates. See Concept 
Release, supra note 3, at n.25. Except as otherwise specified or the 
context otherwise requires, we use the term ``swap'' in this Release 
to refer collectively to swaps, as defined in section 1a of the 
Commodity Exchange Act, 7 U.S.C. 1a (the ``CEA''), and security-
based swaps, as defined in section 3(a)(68) of the Exchange Act.
    \15\ A ``swaption'' is an option to enter into an interest rate 
swap where a specified fixed rate is exchanged for a floating rate. 
See Concept Release, supra note 3, at n.26.
    \16\ A forward swap (or deferred swap) is an agreement to enter 
into a swap at some time in the future (``deferred swap''). See 
Concept Release, supra note 3, at n.27.
    \17\ An OTC derivative may be more difficult to transfer or 
liquidate than an exchange-traded derivative because, for example, 
an OTC derivative may provide contractually for non-transferability 
without the consent of the counterparty, or may be sufficiently 
customized that its value is difficult to establish or its terms too 
narrowly drawn to attract transferees willing to accept assignment 
of the contract, unlike most exchange-traded derivatives. See 
Concept Release, supra note 3, at n.28.
    \18\ The Dodd-Frank Act, supra note 2, was signed into law on 
July 21, 2010. The Act mandates, among other things, substantial 
changes in the OTC derivatives markets, including new clearing, 
reporting, and trade execution mandates for swaps and security-based 
swaps, and both exchange-traded and OTC derivatives are contemplated 
under the new regime. See Dodd-Frank Act sections 723 (mandating 
clearing of swaps) and 763 (mandating clearing of security-based 
swaps). We have noted that these Dodd-Frank Act requirements ``were 
designed to provide greater certainty that, wherever possible and 
appropriate, swap and security-based swap contracts formerly traded 
exclusively in the OTC market are centrally cleared.'' Process for 
Submissions for Review of Security-Based Swaps for Mandatory 
Clearing and Notice Filing Requirements for Clearing Agencies; 
Technical Amendments to Rule 19b-4 and Form 19b-4 Applicable to All 
Self-Regulatory Organizations, Securities Exchange Act Release No. 
67286 (June 28, 2012) [77 FR 41602 (July 13, 2012)], at text 
accompanying n.5.
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    While funds use derivatives for a variety of purposes, a common 
characteristic of most derivatives is that they involve leverage or the 
potential for leverage.\19\ We have stated that ``[l]everage exists 
when an investor achieves the right to a return on a capital base that 
exceeds the investment which he has personally contributed to the 
entity or instrument achieving a return.'' \20\ Many derivatives 
transactions entered into by a fund, such as futures contracts, swaps, 
and written options, involve leverage or the potential for leverage in 
that they enable the fund to participate in gains and losses on an 
amount of reference assets that exceeds the fund's investment, while 
also imposing a conditional or unconditional obligation on the fund to 
make a payment or deliver assets to a counterparty.\21\ Other 
derivatives transactions, such as purchased call options, provide the 
economic equivalent of leverage because they expose the fund to gains 
on an amount in excess of the fund's investment but do not impose a 
payment obligation on the fund beyond its investment.\22\
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    \19\ See, e.g., infra notes 69-71.
    \20\ See Securities Trading Practices of Registered Investment 
Companies, Investment Company Act Release No. 10666 (Apr. 18, 1979) 
[44 FR 25128 (Apr. 27, 1979)] (``Release 10666''), at n.5. See also 
infra notes 21-22.
    \21\ The leverage created by such an arrangement is sometimes 
referred to as ``indebtedness leverage.'' See Concept Release, supra 
note 3, at n.31. See infra notes 70-72 and accompanying text.
    \22\ This type of leverage is sometimes referred to as 
``economic leverage.'' See Concept Release, supra note 3, at n.32.
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    Funds use derivatives both to obtain investment exposures as part 
of their investment strategies and to manage risk.\23\ A fund may use 
derivatives to

[[Page 80887]]

gain, maintain, or reduce exposure to a market, sector, or security 
more quickly and/or with lower transaction costs and portfolio 
disruption than investing directly in the underlying securities.\24\ 
The comments we received on the Concept Release reflect some of the 
various ways in which funds use derivatives, including, for example: To 
hedge risks associated with the fund's securities investments; to 
equitize cash to gain exposure quickly, such as by purchasing index 
futures rather than investing in the securities underlying the index; 
and to obtain synthetic positions.\25\
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    \23\ See Concept Release, supra note 3, at n.33. A fund may also 
use derivatives to hedge current portfolio exposures (for example, 
when a fund's portfolio is structured to reflect the fund's long-
term investment strategy and its investment adviser's forecasts, 
interim events may cause the fund's investment adviser to seek to 
temporarily hedge a portion of the portfolio's broad market, sector, 
and/or security exposures). Industry participants believe that 
derivatives may also provide a more efficient hedging tool than 
reducing exposure by selling individual securities, offering greater 
liquidity, lower round-trip transaction costs, lower taxes, and 
reduced disruption to the portfolio's longer-term positioning. Id. 
See also infra note 25 and accompanying text.
    \24\ See Concept Release, supra note 3, at section I.
    \25\ See, e.g., Comment Letter of BlackRock on Concept Release 
(Nov. 4, 2011) (File No. S7-33-11) (``BlackRock Concept Release 
Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-39.pdf; Comment Letter of AQR Capital Management on 
Concept Release (Nov. 7, 2011) (File No. S7-33-11) (``AQR Concept 
Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-26.pdf; Comment Letter of Vanguard on Concept 
Release (Nov. 7, 2011) (File No. S7-33-11) (``Vanguard Concept 
Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-38.pdf; Comment Letter of Oppenheimer Funds on 
Concept Release (Nov. 7, 2011) (File No. S7-33-11) (``Oppenheimer 
Concept Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-44.pdf; Comment Letter of Loomis, Sayles 
and Company on Concept Release (Nov. 7, 2011) (File No. S7-33-11) 
(``Loomis Concept Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-25.pdf; Comment Letter of 
Investment Company Institute on Concept Release (Nov. 7, 2011) (File 
No. S7-33-11) (``ICI Concept Release Comment Letter''), available at 
http://www.sec.gov/comments/s7-33-11/s73311-46.pdf.
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    At the same time and as noted above, funds' use of derivatives may 
entail risks relating to, for example, leverage, illiquidity 
(particularly with respect to complex OTC derivatives), and 
counterparty risk, among others.\26\ A fund's use of derivatives 
presents challenges for its investment adviser and board of directors 
in managing derivatives use so that they are employed in a manner 
consistent with the fund's investment objectives, policies, and 
restrictions, its risk profile, and relevant regulatory requirements, 
including those under the federal securities laws.\27\
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    \26\ See Concept Release, supra note 3, at n.34.
    \27\ See, e.g., Comment Letter of Mutual Fund Directors Forum on 
Concept Release (Nov. 7, 2011) (File No. S7-33-11) (``MFDF Concept 
Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-32.pdf, at 2 (agreeing with this statement in the 
Concept Release and suggesting that we ``evaluate how any potential 
regulations will impact the ability of directors effectively to 
oversee their funds' use of derivatives'').
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B. Derivatives and the Senior Securities Restrictions of the Investment 
Company Act

1. Requirements of Section 18
    Section 18 of the Act imposes various limitations on the capital 
structure of funds, including, in part, by restricting the ability of 
funds to issue ``senior securities.'' The protection of investors 
against the potentially adverse effects of a fund's issuance of senior 
securities is a core purpose of the Investment Company Act.\28\ Section 
18(g) of the Investment Company Act defines ``senior security,'' in 
part, as ``any bond, debenture, note, or similar obligation or 
instrument constituting a security and evidencing indebtedness.'' \29\
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    \28\ See, e.g., sections 1(b)(7), 1(b)(8), 18(a), and 18(f) of 
the Investment Company Act.
    \29\ The definition of senior security in section 18(g) also 
includes ``any stock of a class having priority over any other class 
as to the distribution of assets or payment of dividends'' and 
excludes certain limited temporary borrowings.
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    Congress' concerns underlying the limitations in section 18 were 
focused on: (1) Excessive borrowing and the issuance of excessive 
amounts of senior securities by funds which increased unduly the 
speculative character of their junior securities; \30\ (2) funds 
operating without adequate assets and reserves; \31\ and (3) potential 
abuse of the purchasers of senior securities.\32\ To address these 
concerns, section 18(f)(1) of the Investment Company Act prohibits an 
open-end fund \33\ from issuing or selling any ``senior security'' 
other than borrowing from a bank and subject to a requirement to 
maintain 300% ``asset coverage.'' \34\ Section 18(a)(1) of the 
Investment Company Act similarly prohibits a closed-end fund \35\ from 
issuing or selling any ``senior security that represents an 
indebtedness'' unless it has at least 300% ``asset coverage, '' 
although closed-end funds' ability to issue senior securities 
representing indebtedness is not limited to bank borrowings, and 
closed-end funds also may issue senior securities that are a stock, 
subject to limitations in section 18.\36\ A BDC is also subject to the 
limitations of section 18(a)(1)(A) to the same extent as if it were a 
closed-end investment company except that the applicable asset coverage 
amount for any senior security representing indebtedness is 200%.\37\
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    \30\ See section 1(b)(7) of the Investment Company Act; Release 
10666, supra note 20, at n.8.
    \31\ See section 1(b)(8) of the Investment Company Act; Release 
10666, supra note 20, at n.8.
    \32\ See Investment Trusts and Investment Companies: Hearings on 
S. 3580 Before a Subcomm. of the Senate Comm. on Banking and 
Currency, 76th Cong., 3d Sess., pt. 1 (1940) (``Senate Hearings'') 
at 265-78. See also Mutual Funds and Derivative Instruments, 
Division of Investment Management Memorandum transmitted by Chairman 
Levitt to Representatives Markey and Fields (Sept. 26, 1994) (``1994 
Report''), available at http://www.sec.gov/news/studies/deriv.txt, 
at 21 (describing the practices in the 1920s and 1930s that gave 
rise to section 18's limitations on leverage).
    \33\ Section 5(a)(1) of the Investment Company Act defines 
``open-end company'' as ``a management company which is offering for 
sale or has outstanding any redeemable security of which it is the 
issuer.''
    \34\ ``Asset coverage'' of a class of securities representing 
indebtedness of an issuer generally is defined in section 18(h) of 
the Investment Company Act as ``the ratio which the value of the 
total assets of such issuer, less all liabilities and indebtedness 
not represented by senior securities, bears to the aggregate amount 
of senior securities representing indebtedness of such issuer.'' 
Take, for example, an open-end fund with $100 in assets and with no 
liabilities or senior securities outstanding. The fund could, while 
maintaining the required coverage of 300% of the value of its assets 
subject to section 18 of the Act, borrow an additional $50 from a 
bank; the $50 in borrowings would represent one-third of the fund's 
$150 in total assets, measured after the borrowing (or 50% of the 
fund's $100 net assets).
    \35\ Section 5(a)(2) of the Investment Company Act defines 
``closed-end company'' as ``any management company other than an 
open-end company.''
    \36\ Section 18(a)(1)(A).
    \37\ See section 61(a)(1) of the Investment Company Act. BDCs, 
like registered closed-end funds, also may issue a senior security 
that is a stock (e.g., preferred stock), subject to limitations in 
section 18. See section 18(a)(2) and section 61(a)(1) of the 
Investment Company Act.
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2. Investment Company Act Release 10666
    In Investment Company Act Release 10666, issued in 1979, we 
considered the application of section 18's restrictions on senior 
securities to the following transactions: reverse repurchase 
agreements, firm commitment agreements, and standby commitment 
agreements.\38\ As we described in more detail in Release 10666, in a 
reverse repurchase agreement, a fund transfers possession of a security 
to another party in return for a percentage of the value of the 
security; at an agreed upon future date, the fund repurchases the 
transferred security by paying an amount equal to the proceeds of the 
transaction plus interest.\39\ A firm commitment agreement is a buy 
order for delayed delivery under which a fund agrees to purchase a 
security--a Ginnie Mae, in the example we provided in Release 10666 
\40\--from a seller at a future date,

[[Page 80888]]

stated price, and fixed yield; a standby commitment agreement similarly 
involves an agreement by the fund to purchase a security with a stated 
price and fixed yield in the future upon the counterparty's exercise of 
its option to sell the security to the fund.\41\
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    \38\ See Release 10666, supra note 20.
    \39\ See Release 10666, supra note 20, at discussion of 
``Reverse Repurchase Agreements'' (noting that a reverse repurchase 
agreement may not have an agreed upon repurchase date, and in that 
case, the agreement would be treated as if it were reestablished 
each day).
    \40\ In Release 10666, we described reverse repurchase 
agreements and firm and standby commitment agreements involving debt 
securities guaranteed as to principal and interest by the Government 
National Mortgage Associations, or ``Ginnie Maes.'' We noted, 
however, that we referenced Ginnie Maes only as an example of the 
underlying security and the reference should not be construed as 
delimiting our general statement of policy; we further noted that we 
sought in Release 10666 to ``address generally the possible economic 
effects and legal implications of all comparable trading practices 
which may affect the capital structure of investment companies in a 
manner analogous to the securities trading practices specifically 
discussed [in Release 10666].'' Id., at discussion of ``Areas of 
Concern.'' See also infra section III.A.2.
    \41\ See Release 10666, supra note 20, at discussion of ``Firm 
Commitment Agreements,'' and ``Standby Commitment Agreements.''
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    We concluded that such agreements, while not securities for all 
purposes under the federal securities laws,\42\ ``fall within the 
functional meaning of the term `evidence of indebtedness' for purposes 
of section 18 of the Act,'' which we noted would generally include 
``all contractual obligations to pay in the future for consideration 
presently received,'' and thus may involve the issuance of senior 
securities.\43\ Further, we stated that ``trading practices involving 
the use by investment companies of such agreements for speculative 
purposes or to accomplish leveraging fall within the legislative 
purposes of section 18.'' \44\
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    \42\ See Release 10666, supra note 20, at ``The Agreements as 
Securities'' discussion. See also infra note 61.
    \43\ Release 10666, supra note 20, at ``The Agreements as 
Securities'' discussion.
    \44\ Id. (stating, among other things, that, ``[t]he gains and 
losses from the transactions can be extremely large relative to 
invested capital; for this reason, each agreement has speculative 
aspects. Therefore, it would appear that the independent investment 
decisions involved in entering into such agreements, which focus on 
their distinct risk/return characteristics, indicate that, 
economically as well as legally, the agreements should be treated as 
securities separate from the underlying Ginnie Maes for purposes of 
section 18 of the Act.'')
---------------------------------------------------------------------------

    We recognized, however, that although reverse repurchase 
agreements, firm commitment agreements, and standby commitment 
agreements may involve the issuance of senior securities and thus 
generally would be prohibited for open-end funds by section 18(f) (and 
limited by the 300% asset coverage requirement for closed-end funds), 
these and similar arrangements nonetheless could appropriately be used 
by funds subject to the constraints we described in Release 10666. We 
analogized to short sales of securities by funds, as to which our staff 
had previously provided guidance that the issue of section 18 
compliance would not be raised if funds ``cover'' senior securities by 
maintaining ``segregated accounts.'' \45\
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    \45\ See Release 10666, supra note 20, at text accompanying n.15 
(citing Guidelines for the Preparation of Form N-8B-1, Investment 
Company Act Release No. 7221 (June 9, 1972) at 6-8).
---------------------------------------------------------------------------

    We concluded that the use of segregated accounts ``if properly 
created and maintained, would limit the investment company's risk of 
loss.'' \46\ To avail itself of the segregated account approach, we 
stated that a fund could establish and maintain with the fund's 
custodian a segregated account containing certain liquid assets, such 
as cash, U.S. government securities, or other appropriate high-grade 
debt obligations, equal to the obligation incurred by the fund in 
connection with the senior security (``segregated account 
approach'').\47\ We stated that the segregated account functions as ``a 
practical limit on the amount of leverage which the investment company 
may undertake and on the potential increase in the speculative 
character of its outstanding common stock,'' and that it ``[would] 
assure the availability of adequate funds to meet the obligations 
arising from such activities.'' \48\
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    \46\ See Release 10666, supra note 20, at discussion of 
``Segregated Account.''
    \47\ We stated that, under the segregated account approach, the 
value of the assets in the segregated account should be marked to 
the market daily, additional assets should be placed in the 
segregated account whenever the total value of the account falls 
below the amount of the fund's obligation, and assets in the 
segregated account should be deemed frozen and unavailable for sale 
or other disposition. See id. We also cautioned that as the 
percentage of a fund's portfolio assets that are segregated 
increases, the fund's ability to meet current obligations, to honor 
requests for redemption, and to manage properly the investment 
portfolio in a manner consistent with its stated investment 
objective may become impaired. Id. We stated that the amount of 
assets to be segregated with respect to reverse repurchase 
agreements lacking a specified repurchase price would be the value 
of the proceeds received plus accrued interest; for reverse 
repurchase agreements with a specified repurchase price, the amount 
of assets to be segregated would be the repurchase price; and for 
firm and standby commitment agreements, the amount of assets to be 
segregated would be the purchase price. Id.
    \48\ Id.
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    We did not specifically address derivatives in Release 10666.\49\ 
We did, however, state that although we were expressing our views about 
the particular trading practices discussed in that release, our views 
were not limited to those trading practices, in that we sought to 
``address generally the possible economic effects and legal 
implications of all comparable trading practices which may affect the 
capital structure of investment companies in a manner analogous to the 
securities trading practices specifically discussed in Release 10666.'' 
\50\
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    \49\ The derivatives markets have expanded substantially since 
we issued Release 10666 in 1979. For example, the Options Clearing 
Corporation reports that in 1979, only 64 million contracts were 
traded on 220 equity issues. By 2014, those numbers had risen to 
3,845 million contracts traded on 4,278 equity issues. The CME Group 
reports that 313 of its 335 derivatives products began trading after 
1979 (see http://www.cmegroup.com/company/history/cmegroupinformation.html). For example, the Chicago Mercantile 
Exchange launched its first cash-settled futures contract in 1981 
and its first successful stock index future (S&P 500 index) in 1982 
(see http://www.cmegroup.com/company/history/timeline-of-achievements.html). See also Jennifer Lynch Koski & Jeffrey Pontiff, 
How Are Derivatives Used? Evidence from the Mutual Fund Industry, 54 
The J. of Fin. 791, 792 (Apr. 1999), available at http://onlinelibrary.wiley.com/doi/10.1111/0022-1082.00126/pdf (observing 
that the Taxpayer Relief Act of 1997's repeal of the ``short-short 
rule'' would likely lead to increased derivative use by mutual funds 
because that rule ``eliminate[d] preferential pass-through tax 
status for funds that realize more than 30 percent of their capital 
gains from positions held less than three months'' and ``inhibited 
derivative use because some derivative securities such as options 
and futures contracts involve realizing capital gains for holding 
periods of less than three months'').
    \50\ Release 10666, supra note 20, at ``Areas of Concern'' and 
``Background'' discussion.
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3. Developments After Investment Company Act Release No. 10666
    In the years following the issuance of Release 10666, our staff 
issued more than thirty no-action letters to funds concerning the 
maintenance of segregated accounts or otherwise ``covering'' their 
obligations in connection with various transactions that implicate 
section 18.\51\ In these letters and through other staff guidance, our 
staff has addressed questions as they were presented to the staff, 
generally on an instrument-by-instrument basis, regarding the 
application of our statements in Release 10666 to various types of 
derivatives and other transactions. As derivatives markets expanded and 
funds increased their use of derivatives,\52\ industry practices have 
developed over time, based at least in part on our staff's no-action 
letters and other staff guidance, concerning the appropriate amount and 
type of assets that should be segregated in order to

[[Page 80889]]

``cover'' various types of derivatives transactions.\53\
---------------------------------------------------------------------------

    \51\ The Concept Release includes a discussion of certain staff 
no-action letters. See Concept Release, supra note 3, at section I.
    \52\ See, e.g., Comment Letter of Davis Polk & Wardwell LLP on 
Concept Release (Nov. 11, 2011) (File No. S7-33-11) (``Davis Polk 
Concept Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-49.pdf (``[T]he Commission and the Staff, 
over the years, have addressed issues pertaining to the use of 
derivatives transactions by registered funds on an intermittent 
case-by-case basis. While this guidance has been helpful, it has not 
been able to keep pace with the dramatic expansion of the 
derivatives market over the past twenty years, both in terms of the 
types of instruments that are available and the extent to which 
funds use them.'').
    \53\ Our staff also has stated that it would not object to a 
fund covering its obligations by entering into certain cover 
transactions or holding the asset (or the right to acquire the 
asset) that the fund would be required to deliver under certain 
derivatives. See Concept Release, supra note 3, at text following 
nn.70-71.
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    With respect to the amount of assets that funds have segregated, 
two general practices have developed:
     For some derivatives, funds generally segregate an amount 
equal to the full amount of the fund's potential obligation under the 
contract, where that amount is known at the outset of the transaction, 
or the full market value of the underlying reference asset for the 
derivative (collectively, ``notional amount segregation'').\54\ Funds 
have applied this approach to, among other transactions, futures, 
forward contracts and written options that permit physical settlement, 
and credit default swaps (``CDS'') regardless of whether physical 
settlement or cash settlement is contemplated.\55\
---------------------------------------------------------------------------

    \54\ See, e.g., Concept Release, supra note 3, at n.78 and 
accompanying text (explaining that, ``[i]n determining the amount of 
assets required to be segregated to cover a particular instrument, 
the Commission and its staff have generally looked to the purchase 
or exercise price of the contract (less margin on deposit) for long 
positions and the market value of the security or other asset 
underlying the agreement for short positions, measured by the full 
amount of the reference asset, i.e., the notional amount of the 
transaction rather than the unrealized gain or loss on the 
transaction, i.e., its current mark-to-market value''). See also, 
e.g., Davis Polk Concept Release Comment Letter, at 3 (``In Release 
10666 and in no-action letters, the Commission and the Staff 
generally indicated that funds relying on the segregation method 
should segregate assets equal to the full notional value of the 
reference asset for a derivative (the `notional amount'), less any 
collateral or margin on deposit.'').
    \55\ For example, if a fund enters into a long, physically 
settled forward contract, and the contract specifies the forward 
price that the fund will pay at settlement, the fund would, 
consistent with staff positions, segregate this forward/contract 
price. See, e.g., Dreyfus Strategic Investing and Dreyfus Strategic 
Income, SEC Staff No-Action Letter (June 22, 1987) (``Dreyfus No-
Action Letter''), available at http://www.sec.gov/divisions/investment/imseniorsecurities/dreyfusstrategic033087.pdf. As another 
example, if a fund enters into a short, physically settled forward 
and the contract obligates the fund to deliver a specific quantity 
of an asset at settlement--but the total value of that deliverable 
obligation is unknown at the contract's outset--the fund would, 
consistent with staff positions, segregate, on a daily basis, liquid 
assets with a value equal to the daily market value of the 
deliverable. See id.; Robertson Stephens Investment Trust, SEC Staff 
No-Action Letter (Aug. 24, 1995) (``Robertson Stephens No-Action 
Letter''), available at http://www.sec.gov/divisions/investment/imseniorsecurities/robertsonstephens040395.pdf. See also supra note 
47.
---------------------------------------------------------------------------

     For certain derivatives that are required by their terms 
to be net cash settled, and thus do not involve physical settlement, 
funds often segregate an amount equal to the fund's daily mark-to-
market liability, if any (``mark-to-market segregation'').\56\ Funds 
initially applied this approach to specific types of transactions 
addressed through guidance by our staff: first interest rate swaps and 
later cash-settled futures and non-deliverable forwards (``NDFs'').\57\ 
We understand, however, that many funds now apply mark-to-market 
segregation to a wider range of cash-settled instruments.\58\ Our staff 
has observed that some funds appear to apply the mark-to-market 
approach to any derivative that is cash settled.
---------------------------------------------------------------------------

    \56\ See, e.g., Concept Release, supra note 3, at nn.75-77 and 
accompanying text (explaining that ``[c]ertain swaps, for example, 
that settle in cash on a net basis, appear to be treated by many 
funds as requiring segregation of an amount of assets equal to the 
fund's daily mark-to-market liability, if any'').
    \57\ Our staff provided this guidance in the context of its 
review of certain funds' registration statements.
    \58\ See, e.g., Comment Letter of Ropes & Gray LLP on Concept 
Release (Nov. 7, 2011) (File No. S7-33-11) (``Ropes & Gray Concept 
Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-21.pdf, at 4 (``It now appears to be an increasingly 
common practice for funds that engage in cash-settled swaps to 
segregate assets only to the extent required to meet the fund's 
daily mark-to-market liability, if any, relating to such swaps.''); 
Davis Polk Concept Release Comment Letter, at 3 (``[F]und 
registration statements indicate that, in recent years, the Staff 
has not objected to the adoption by funds of policies that require 
segregation of the mark-to-market value, rather than the notional 
amount, for a variety of swaps as well as for cash-settled futures 
and forward contracts.'').
---------------------------------------------------------------------------

    As noted above, in Release 10666, we stated that the assets 
eligible to be included in segregated accounts should be ``liquid 
assets,'' such as cash, U.S. government securities, or other 
appropriate high-grade debt obligations. In a 1996 staff no-action 
letter, the staff took the position that a fund could cover its senior 
securities-related obligations by depositing any liquid asset, 
including equity securities and non-investment grade debt securities, 
in a segregated account.\59\ With respect to the manner in which 
segregation may be effected, the staff took the position that a fund 
could segregate assets by designating such assets on its books, rather 
than establishing a segregated account at its custodian.\60\
---------------------------------------------------------------------------

    \59\ See Merrill Lynch Asset Management, L.P., SEC Staff No-
Action Letter (July 2, 1996) (``Merrill Lynch No-Action letter''), 
available at http://www.sec.gov/divisions/investment/imseniorsecurities/merrilllynch070196.pdf.
    \60\ See Dear Chief Financial Officer Letter from Lawrence A. 
Friend, Chief Accountant, Division of Investment Management (Nov. 7, 
1997), available at http://www.sec.gov/divisions/investment/imseniorsecurities/imcfo120797.pdf.
---------------------------------------------------------------------------

    As this discussion reflects, funds and their counsel, in light of 
the guidance we provided in Release 10666 and that provided by our 
staff through no-action letters and otherwise, have applied the 
segregated account approach to, or otherwise sought to cover, many 
types of transactions other than those specifically addressed in 
Release 10666, including various derivatives and other transactions 
that implicate section 18. These transactions include, for example, 
futures, written options, and swaps (both swaps and security-based 
swaps).
4. Current Views Concerning Section 18
    As we stated in Release 10666, we view the transactions described 
in that release as falling within the functional meaning of the term 
``evidence of indebtedness,'' for purposes of section 18.\61\ The 
trading practices described in Release 10666, as well as short sales of 
securities for which the staff initially developed the segregated 
account approach we applied in Release 10666, all impose on a fund a 
conditional or unconditional contractual obligation to pay or deliver 
assets in the future to a counterparty and thus involve the issuance of 
a senior security for purposes of section 18.\62\
---------------------------------------------------------------------------

    \61\ See Release 10666, supra note 20, at ``The Agreements as 
Securities'' discussion. In addition, as we noted in the Concept 
Release, the Investment Company Act's definition of the term 
``security'' is broader than the term's definition in other federal 
securities laws. Compare section 2(a)(36) of the Investment Company 
Act with sections 2(a)(1) and 2A of the Securities Act of 1933 
(``Securities Act'') and sections 3(a)(10) and 3A of the Exchange 
Act. See also Concept Release, supra note 3, at n.57 and 
accompanying text (explaining that we have interpreted the term 
``security'' in light of the policies and purposes underlying the 
Investment Company Act).
    \62\ See Release 10666, supra note 20, at ``The Agreements as 
Securities'' discussion. See also section 18(g) (defining the term 
``senior security,'' in part, as ``any bond, debenture, note, or 
similar obligation or instrument constituting a security and 
evidencing indebtedness''). Under the proposal, a fund would be 
permitted to enter into reverse repurchase agreements, short sale 
borrowings, or any firm or standby commitment agreement or similar 
agreement (collectively, ``financial commitment transactions''), 
notwithstanding the prohibitions and restrictions on the issuance of 
senior securities under section 18, provided the fund complies with 
the proposed rule's conditions. See infra section III.A.
---------------------------------------------------------------------------

    We apply the same analysis to derivatives transactions under which 
the fund is or may be required to make any payment or deliver cash or 
other assets during the life of the instrument or at maturity or early 
termination, whether as a margin or settlement payment or otherwise (a 
``future payment obligation''). As was the case with respect to the 
trading practices we described in Release 10666, where the fund has 
entered into a derivatives transaction and has a future payment 
obligation--a conditional or unconditional contractual obligation to

[[Page 80890]]

pay in the future \63\--we believe that such a transaction involves an 
evidence of indebtedness that is a senior security for purposes of 
section 18.\64\
---------------------------------------------------------------------------

    \63\ Unless otherwise specified or the context otherwise 
requires, the term ``derivative'' or ``derivatives transaction'' as 
used in this Release means a ``derivatives transaction,'' as defined 
in proposed rule 18f-4(c)(2), which describes derivatives that 
impose a payment obligation on the fund.
    \64\ As we explained in Release 10666, we believe that an 
evidence of indebtedness, for purposes of section 18, includes not 
only a firm and un-contingent obligation, but also a contingent 
obligation, such as the obligation created by a standby commitment 
or a ``put'' (or call) option sold by a fund. See Release 10666, 
supra note 20, at ``Standby Commitment Agreements'' discussion. We 
understand that it has been asserted that a contingent obligation 
created by a standby commitment or similar agreement does not 
implicate section 18 unless and until the fund would be required 
under generally accepted accounting principles (``GAAP'') to 
recognize the contingent obligation as a liability on the fund's 
financial statements. The treatment of derivatives transactions 
under GAAP, including whether the derivatives transaction 
constitutes a liability for financial statement purposes at any 
given time or the extent of the liability for that purpose, is not 
determinative with respect to whether the derivatives transaction 
involves the issuance of a senior security under section 18. This is 
consistent with our analysis of a fund's obligation, and the 
corresponding segregated asset amounts, under the trading practices 
described in Release 10666. See supra note 47 (describing the amount 
of assets to be segregated for the trading practices described in 
Release 10666, including that a fund should segregate the full 
purchase price of a standby commitment beginning on the date the 
fund entered into the agreement, which would represent a contingent 
obligation of the fund).
---------------------------------------------------------------------------

    This interpretation is supported by the express scope of section 
18, which defines the term senior security broadly to include 
instruments and transactions that might not otherwise be considered 
securities under other provisions of the federal securities laws.\65\ 
For example, section 18(f)(1) generally prohibits an open-end fund from 
issuing or selling any senior security ``except [that the fund] shall 
be permitted to borrow from any bank.'' \66\ This statutory permission 
to engage in a specific borrowing makes clear that such borrowings are 
senior securities, which otherwise would be prohibited absent this 
specific permission.\67\ Section 18(c)(2) similarly treats all 
promissory notes or evidences of indebtedness issued in consideration 
of any loan as senior securities except as specifically otherwise 
provided in that section.\68\
---------------------------------------------------------------------------

    \65\ Consistent with Release 10666, we are only expressing our 
views concerning section 18 of the Investment Company Act.
    \66\ Recognizing the breadth of the term ``senior security,'' we 
observed in the Concept Release that, ``[t]o address [Congress' 
concerns underlying section 18], section 18(f)(1) of the Investment 
Company Act prohibits an open-end fund from issuing or selling any 
`senior security' other than borrowing from a bank.'' (footnotes 
omitted)
    \67\ We similarly observed in Release 10666 that section 
18(f)(1), ``by implication, treats all borrowings as senior 
securities,'' and that ``[s]ection 18(f)(1) of the Act prohibits 
such borrowings unless entered into with banks and only if there is 
300% asset coverage on all borrowings of the investment company.'' 
See Release 10666, supra note 20, at ``Reverse Repurchase 
Agreements'' discussion.
    \68\ Section 18(c) provides further limitations on a closed-end 
fund's ability to issue senior securities, in addition to the asset 
coverage and other limitations provided in section 18(a), with the 
proviso in section 18(c)(2) that ``promissory notes or other 
evidences of indebtedness issued in consideration of any loan, 
extension, or renewal thereof, made by a bank or other person and 
privately arranged, and not intended to be publicly distributed, 
shall not be deemed to be a separate class of senior securities 
representing indebtedness within the meaning of [section 18(c)].''
---------------------------------------------------------------------------

    This view also is consistent with the fundamental statutory policy 
and purposes underlying the Act, as expressed in section 1(b) of the 
Act. Section 1(b) provides that the provisions of the Act shall be 
interpreted to mitigate and ``so far as is feasible'' to eliminate the 
conditions and concerns enumerated in that section. These include the 
conditions and concerns enumerated in sections 1(b)(7) and 1(b)(8) 
which declare, respectively, that ``the national public interest and 
the interest of investors are adversely affected'' when funds ``by 
excessive borrowing and the issuance of excessive amounts of senior 
securities increase unduly the speculative character'' of securities 
issued to common shareholders and when funds ``operate without adequate 
assets or reserves.'' Funds' obligations under derivative transactions 
can implicate each of these concerns.
    As we stated in Release 10666, leveraging an investment company's 
portfolio through the issuance of senior securities ``magnifies the 
potential for gain or loss on monies invested and therefore results in 
an increase in the speculative character of the investment company's 
outstanding securities'' and ``leveraging without any significant 
limitation'' was identified ``as one of the major abuses of investment 
companies prior to the passage of the Act by Congress.'' We emphasized 
in Release 10666, and we continue to believe today, that the 
prohibitions and restrictions under the senior security provisions of 
section 18 should ``function as a practical limit on the amount of 
leverage which the investment company may undertake and on the 
potential increase in the speculative character of its outstanding 
common stock'' and that funds should not ``operate without adequate 
assets or reserves.'' \69\ Funds' use of derivatives, like the trading 
practices we addressed in Release 10666, implicate the undue 
speculation concern expressed in section 1(b)(7) and the asset 
sufficiency concern expressed in section 1(b)(8) as discussed below.
---------------------------------------------------------------------------

    \69\ See Release 10666, supra note 20, at ``Segregated Account'' 
discussion.
---------------------------------------------------------------------------

    First, with respect to the undue speculation concern expressed in 
section 1(b)(7), we noted above and in the Concept Release that a 
common characteristic of most derivatives is that they involve leverage 
or the potential for leverage because they typically enable the fund to 
participate in gains and losses on an amount that substantially exceeds 
the fund's investment while imposing a conditional or unconditional 
obligation on the fund to make a payment or deliver assets to a 
counterparty. For example, a fund can enter into a total return swap 
referencing an equity or debt security and, in exchange for a 
contractual obligation to make payments in respect of changes in the 
value of the referenced security and the delivery of a limited amount 
of collateral, obtain exposure to the full notional value of the 
referenced security.\70\ As one commenter observed, ``a fund's purchase 
of an equity total return swap produces an exposure and economic return 
substantially equal to the exposure and economic return a fund could 
achieve by borrowing money from the counterparty in order to purchase 
the equities that are reference assets.'' \71\ This same analysis 
applies to various other types of derivatives under which the fund 
posts a small percentage of the notional amount as initial margin or 
collateral--or is not required to make any up-front payment or receives 
a premium payment--but is exposed to the gains or losses on the full 
notional amount of the reference asset.\72\
---------------------------------------------------------------------------

    \70\ See, e.g., The Report of the Task Force on Investment 
Company Use of Derivatives and Leverage, Committee on Federal 
Regulation of Securities, ABA Section of Business Law (July 6, 2010) 
(``2010 ABA Derivatives Report''), available at https://apps.americanbar.org/buslaw/blt/content/ibl/2010/08/0002.pdf, at 8 
(stating that ``[f]utures contracts, forward contracts, written 
options and swaps can produce a leveraging effect on a fund's 
portfolio'' because ``for a relatively small up-front payment made 
by a fund (or no up-front payment, in the case with many swaps and 
written options), the fund contractually obligates itself to one or 
more potential future payments until the contract terminates or 
expires''). See also infra notes 72-74.
    \71\ BlackRock Concept Release Comment Letter, at 4.
    \72\ See, e.g., Board Oversight of Derivatives, Independent 
Directors Council Task Force Report (July 2008) (``2008 IDC 
Report''), available at http://www.ici.org/pdf/ppr_08_derivatives.pdf, at 3 (``The leverage inherent in these 
[derivatives] instruments magnifies the effect of changes in the 
value of the underlying asset on the initial amount of capital 
invested. For example, an initial 5% collateral deposit on the total 
value of the commodity would result in 20:1 leverage, with a 
potential 80% loss (or gain) of the collateral in response to a 4% 
movement in the market price of the underlying commodity.''); Andrew 
Ang, Sergiy Gorovyy & Gregory B. van Inwegen, Hedge Fund Leverage, 
NBER Working Paper 16801 (Feb. 2011) (``Ang, Gorovyy & Inwegen''), 
available at http://www.nber.org/papers/w16801.pdf, at Table 1 
(showing that under prevailing margin rates as of March 2010, a 
market participant could in theory obtain 10 times implied leverage 
under a total return swap (because the exposure under the swap would 
be ten times the initial margin amount); 33 times implied leverage 
under a financial future; and 100 times implied leverage under a 
foreign exchange or interest rate swap).

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[[Page 80891]]

    As discussed in more detail in sections II.D and III.B.1.c, our 
staff's evaluation of the use of derivatives by funds also indicates 
that some funds make extensive use of derivatives to obtain notional 
investment exposures far in excess of the funds' respective net asset 
values.\73\ Our staff's review of funds' use of derivatives found that, 
although many funds do not use derivatives, and most funds do not use a 
substantial amount of derivatives, some funds do use derivatives 
extensively. Some of the funds that use derivatives more extensively 
have derivatives notional exposures that are substantially in excess of 
the funds' net assets, with notional exposures ranging up to almost ten 
times a fund's net assets.\74\ These highly leveraged investment 
exposures appear to be inconsistent with the purposes and concerns 
underlying section 18 of the Act.\75\
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    \73\ For more information on the staff's review, including the 
staff's measurement of derivatives exposures, see infra section 
III.B.1.c and the White Paper entitled ``Use of Derivatives by 
Investment Companies,'' which was prepared by staff in the Division 
of Economic and Risk Analysis (``DERA'') and will be placed in the 
comment file for this Release contemporaneously with our publication 
of the Release. Daniel Deli, Paul Hanouna, Christof Stahel, Yue Tang 
& William Yost Use of Derivatives by Registered Investment Companies 
Division of Economic and Risk Analysis (2015) (``DERA White 
Paper''), available at http://www.sec.gov/dera/staff-papers/white-papers/derivatives12-2015.pdf.
    \74\ Id.
    \75\ See also infra section II.D (discussing concerns with the 
current approach and providing examples of situations in which 
funds' use of derivatives has led to substantial losses).
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    We noted in Release 10666 that, given the potential for reverse 
repurchase agreements to be used for leveraging and their ability to 
magnify the risk of investing in a fund, ``one of the important 
policies underlying section 18 would be rendered substantially 
nugatory'' if funds' use of reverse repurchase agreements were not 
subject to limitation. We similarly believe that if funds' use of 
derivatives that impose a future payment obligation on the fund were 
not viewed as involving senior securities subject to appropriate 
limitations under section 18, the concerns underlying section 18, 
including the undue speculation concern expressed in section 1(b)(7) as 
discussed above, would be frustrated.\76\
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    \76\ One commenter made this point directly. See Comment Letter 
of Stephen A. Keen on Concept Release (Nov. 8, 2011) (File No. S7-
33-11) (``Keen Concept Release Comment Letter''), available at 
http://www.sec.gov/comments/s7-33-11/s73311-45.pdf, at 3 (``If 
permitted without limitation, derivative contracts can pose all of 
the concerns that section 18 was intended to address with respect to 
borrowings and the issuance of senior securities by investment 
companies.''). See also, e.g., ICI Concept Release Comment Letter, 
at 8 (``The Act is thus designed to regulate the degree to which a 
fund issues any form of debt--including contractual obligations that 
could require a fund to make payments in the future.'').
---------------------------------------------------------------------------

    Second, a fund's use of derivatives under which the fund has a 
future payment obligation also raises concerns with respect to a fund's 
ability to meet its obligations, implicating the asset sufficiency 
concern expressed in section 1(b)(8) of the Act. Many derivatives 
investments entered into by a fund, such as futures contracts, swaps, 
and written options, pose a risk of loss that can result in payment 
obligations owed to the fund's counterparties.\77\ Losses on 
derivatives therefore can result in payment obligations that can 
directly affect the capital structure of a fund and the relative rights 
of the fund's counterparties and fund shareholders, in that the fund 
would be required to make payments or deliver fund assets to its 
derivatives counterparties under the terms negotiated with its 
counterparties. Because of the leverage present in many types of 
derivatives as discussed above, these senior payments of additional 
collateral or termination payments to counterparties can be 
substantially greater than any collateral initially delivered by the 
fund to initiate the derivatives transaction.\78\
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    \77\ Some derivatives transactions, like physically settled 
futures and forwards, can require the fund to deliver the underlying 
reference assets regardless of whether the fund experiences losses 
on the transaction.
    \78\ See, e.g., supra note 72.
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    Losses on a fund's derivatives transactions, and the resulting 
payment obligation imposed on the fund, can force a fund's adviser to 
sell the fund's investments to generate liquid assets in order for the 
fund to meet its obligations. The use of derivatives for leveraging 
purposes can exacerbate this risk and make it more likely that a fund 
would be forced to sell assets, potentially generating losses for the 
fund.\79\ In an extreme situation, a fund could default on its payment 
obligations.\80\ The risks associated with derivatives transactions 
that impose a payment obligation on the fund differ from the risk of 
loss on other investments, which may result in a loss of asset value 
but would not require the fund to deliver cash or assets to a 
counterparty. The examples of fund losses discussed below in section 
II.D demonstrate the substantial and rapid losses that can result from 
a fund's investments in derivatives, as well as the forced sales and 
other measures a fund may be required to take to meet its derivatives 
payment obligations, implicating the undue speculation concern 
expressed in section 1(b)(7) and the asset sufficiency concern 
expressed in section 1(b)(8).\81\
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    \79\ See, e.g., Peter Breuer, Measuring Off-Balance-Sheet 
Leverage, IMF Working Paper (Dec. 2000) (``Off-Balance-Sheet 
Leverage IMF Working Paper''), available at http://www.imf.org/external/pubs/ft/wp/2000/wp00202.pdf, at 7-8 (``[A] more leveraged 
investor facing a given adverse price movement may be forced by 
collateral requirements (i.e. margin calls) to unwind the position 
sooner than if the position were not leveraged. The unwinding 
decision of an unleveraged investor depends merely on the investor's 
risk preferences and not on potentially more restrictive margin 
requirements.'').
    \80\ See, e.g., ICI Concept Release Comment Letter, at 11 
(noting that, ``[h]ypothetically, in an extreme scenario, a fund 
that used derivatives heavily and segregated most of its liquid 
assets to cover its obligation on a pure mark-to-market basis could 
potentially find itself with insufficient liquid assets to cover its 
derivative positions'').
    \81\ In this regard, we note that proposed rule 22e-4 would, 
among other things, require an open-end fund (other than a money 
market fund) to: Classify, and review on an ongoing basis the 
classification of, the liquidity of each of the fund's portfolio 
positions (or portions of a position), including derivatives, into 
one of six liquidity categories; and assess and periodically review 
the fund's liquidity risk, considering various factors specified in 
the rule, including the fund's use of borrowings and derivatives for 
investment purposes. Assessing liquidity risk under rule 22e-4 would 
involve an assessment of the fund's derivatives positions 
themselves, and also may generally include an evaluation of the 
potential liquidity demands that may be imposed on the fund in 
connection with its use of derivatives. To the extent the fund is 
required to make payments to a derivatives counterparty, those 
assets would not be available to meet shareholder redemptions. See 
Liquidity Release, supra note 5, at sections III.B.2. and III. 
C.1.c.
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    We recognize, however, that not every derivative will involve the 
issuance of a senior security because not every derivative imposes a 
future payment obligation on the fund. A fund that purchases an option, 
for example, generally will make a non-refundable premium payment to 
obtain the right to acquire (or sell) securities under the option but 
generally will not have any subsequent obligation to deliver cash or 
assets to the counterparty unless the fund chooses to exercise the 
option. A derivative that does not impose a future payment obligation 
on a fund in this respect generally resembles non-derivative securities 
investments in that these investments may lose value but will not 
require the fund to make any

[[Page 80892]]

payments in the future.\82\ Consistent with the views expressed by 
commenters, we preliminarily believe that a derivative that does not 
impose a future payment obligation on the fund would not involve a 
senior security transaction for purposes of section 18.\83\
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    \82\ At least one commenter on the Concept Release asserted that 
a purchased option would impose a payment obligation on the fund 
because ``[i]f the option is in the money at the time it expires, 
the fund's manager has a fiduciary obligation to realize the 
intrinsic value of the option'' and ``to exercise the option, the 
fund must either pay the full strike price (for a call) or deliver 
the notional amount of the underlying asset (for a put).'' See Keen 
Concept Release Comment Letter, at 16.
    \83\ See, e.g., ICI Concept Release Comment Letter, at 8 (``The 
Act is thus designed to regulate the degree to which a fund issues 
any form of debt--including contractual obligations that could 
require a fund to make payments in the future. By adopting a 
definition of `leverage' in the context of section 18 that relates 
solely to indebtedness leverage and clearly distinguishes it from 
economic leverage, the Commission could alleviate some of the 
confusion in this area while appropriately protecting investors and 
serving the purposes of the Act.''). Although some derivatives 
instruments may not involve the issuance of a senior security for 
purposes of section 18, we generally would expect the fund's adviser 
to consider the potential risks associated with these instruments, 
including the ``economic'' leverage they involve.
---------------------------------------------------------------------------

C. Review of Funds' Use of Derivatives

    As we explained in the Concept Release, we now seek to take an 
updated and more comprehensive approach to the regulation of funds' use 
of derivatives.\84\ To inform our consideration of the regulation of 
funds' use of derivatives, we initiated a review of funds' use of 
derivatives under the Investment Company Act. As we noted in the 
Concept Release, our staff has been exploring the benefits, risks, and 
costs associated with funds' use of derivatives, as well as various 
issues relating to the use of derivatives by funds, including whether 
funds' current practices, based on their application of Commission and 
staff guidance, are consistent with the investor protection purposes 
and concerns underlying section 18 of the Investment Company Act.
---------------------------------------------------------------------------

    \84\ See Concept Release, supra note 3, at section I (``The 
Commission or its staff, over the years, has addressed a number of 
issues relating to derivatives on a case-by-case basis. The 
Commission now seeks to take a more comprehensive and systematic 
approach to derivatives-related issues under the Investment Company 
Act.'').
---------------------------------------------------------------------------

    In considering these and other issues, our staff has engaged in a 
range of activities to inform our policymaking relating to the use of 
derivatives by funds. These include reviewing funds' derivatives 
holdings and other sources of information concerning funds' use of 
derivatives; examining advisers to funds that make use of derivatives; 
discussing funds' use of derivatives with market participants; and 
considering other relevant information provided to the Commission 
concerning funds' use of derivatives, including comment letters 
submitted in response to the Concept Release. This review has also 
included an evaluation of the comment letters submitted in response to 
a notice issued by the Financial Stability Oversight Council (``FSOC'') 
requesting comment on aspects of the asset management industry.\85\ 
Although our proposal is independent of FSOC, some commenters 
responding to the FSOC notice discussed issues concerning leverage, and 
we have considered and cited to relevant comments throughout this 
Release.\86\
---------------------------------------------------------------------------

    \85\ See Notice Seeking Comment on Asset Management Products and 
Activities 79 FR 77488 (Dec. 24, 2014) (``FSOC Request for 
Comment'').
    \86\ Comments submitted in response to the FSOC Notice are 
available at http://www.regulations.gov/#!docketDetail;D=FSOC-2014-
0001.
---------------------------------------------------------------------------

    The staff's review of funds' use of derivatives includes, as 
discussed below, a review of the derivatives and other holdings of a 
random sample of funds, as reported by those funds in their annual 
reports to shareholders. As part of this effort, the staff reviewed and 
compiled information concerning the holdings of randomly selected 
mutual funds (including a focused review and separate sampling of 
alternative strategy funds \87\), closed-end funds, ETFs, and BDCs. 
Information derived from this review is discussed throughout this 
Release, and more details concerning the staff's review and findings 
are provided in the DERA White Paper, which was prepared by staff in 
the Division of Economic and Risk Analysis and which will be placed in 
the comment file for this Release contemporaneously with our 
publication of the Release.\88\ As discussed below, in developing 
proposed rule 18f-4, we considered the information derived from our 
staff's review concerning funds' use of derivatives and other 
considerations, including the investor protection purposes and concerns 
underlying section 18 as reflected in sections 1(b)(7) and 1(b)(8).
---------------------------------------------------------------------------

    \87\ We refer to alternative strategy funds in the same manner 
as the staff classified ``Alt Strategies'' funds in the DERA White 
Paper, supra note 73, as including the Morningstar categories of 
``alternative,'' ``nontraditional bond'' and ``commodity'' funds.
    \88\ See supra note 73.
---------------------------------------------------------------------------

D. Need for a New Approach

1. The Current Regulatory Framework and the Purposes and Policies 
Underlying the Act
a. Background and Overview
    We have determined to propose a new approach to funds' use of 
derivatives in order to address the investor protection purposes and 
concerns underlying section 18 of the Act and to provide an updated and 
more comprehensive approach to the regulation of funds' use of 
derivatives transactions in light of the dramatic growth in the volume 
and complexity of the derivatives markets over the past two decades and 
the increased use of derivatives by certain funds. In Release 10666, we 
took the position that funds might engage in the transactions described 
in that release using the segregated account approach, notwithstanding 
the limitations in section 18.\89\ We took this position because we 
believed that the segregated account approach would address the 
investor protection purposes and concerns underlying section 18 by: (1) 
Imposing a ``practical limit on the amount of leverage which the 
investment company may undertake and on the potential increase in the 
speculative character of its outstanding common stock''; and (2) 
``assur[ing] the availability of adequate funds to meet the obligations 
arising [from the transactions described in Release 10666].'' \90\
---------------------------------------------------------------------------

    \89\ Section 18 provides very limited statutory permission for 
open-end funds to borrow from any bank subject to the 300% asset 
coverage requirement and excludes from the definition of the term 
``senior security'' any loans made for temporary purposes by a bank 
or other person and privately arranged in an amount not exceeding 5% 
of total assets. Release 10666 thus provided guidance for certain 
transactions that would otherwise be prohibited under the 
requirements of section 18, and open-end funds have used this 
guidance to enter into derivatives transactions that would otherwise 
be prohibited under section 18. See also infra note 141.
    \90\ Release 10666, supra note 20, at ``Segregated Account'' 
discussion. These concerns are reflected in sections 1(b)(7) and 
1(b)(8) of the Act, as discussed above. We also noted in Release 
10666 that ``segregated accounts, if properly created and 
maintained, would limit the investment company's risk of loss.'' Id.
---------------------------------------------------------------------------

    We continue to believe that these are relevant considerations and 
that it may be appropriate for a fund to enter into transactions that 
create fund indebtedness, notwithstanding the prohibitions in section 
18, if such transactions are subject both to a limit on leverage to 
prevent undue speculation and to measures designed to require the fund 
to have sufficient assets to meet its obligations.\91\ We are

[[Page 80893]]

concerned, however, that funds' current practices, including their 
application of the segregated account approach to certain derivatives 
transactions, in some cases may not adequately address these 
considerations.
---------------------------------------------------------------------------

    \91\ We also believe these considerations are relevant when 
considering, as we are required to do for this proposed rule for 
purposes of section 6(c) of the Act, whether it would be necessary 
or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the 
policy and provisions of the Act to provide an exemption from the 
requirements of sections 18 and 61 of Act and the appropriate 
conditions for any exemption.
---------------------------------------------------------------------------

    The segregated account approach described in Release 10666 required 
a fund engaging in the transactions described in that release to 
segregate liquid assets, such as cash, U.S. government securities, or 
other appropriate high-grade debt obligations, equal in value to the 
full amount of the obligations incurred by the fund.\92\ A fund 
segregating an amount of the highly liquid assets described in Release 
10666 equal in value to the full amount of potential obligations 
incurred through the transactions described in Release 10666 would be 
subject to a practical limit on the amount of leverage the fund could 
obtain through those transactions. The fund would not be able to incur 
obligations in excess of liquid assets that the fund could place in a 
segregated account, which generally would limit the fund's obligations 
to the fund's net assets, even if the fund's net assets consisted 
solely of the high-quality assets we described in Release 10666.\93\ 
Segregating liquid assets equal in value to the full amount of the 
fund's obligations--and doing so with the types of high-quality liquid 
assets we described in Release 10666--also provided assurances that the 
fund would have adequate assets to meet its obligations.\94\ The liquid 
assets we described in Release 10666 generally are less likely to 
experience volatility or to decline in value than lower quality debt 
securities or equity securities, for example, and the amount of the 
fund's obligation under the trading practices addressed in Release 
10666 generally would be known at the outset of the transaction.\95\
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    \92\ See Release 10666, supra note 20, at ``Segregated Account'' 
discussion. See also supra note 47.
    \93\ See, e.g., Ropes & Gray Concept Release Comment Letter, at 
3 (in the context of Release 10666 ``[a]s originally conceived by 
the Commission,'' explaining that ``[a]s a practical matter, 
requiring the segregation of assets but not limiting the permitted 
segregation to cash equivalents effectively permitted funds to incur 
investment leverage up to a theoretical limit equal to 100% of a 
fund's net assets.'') In addition and as we explained in Release 
10666, as the percentage of a fund's portfolio assets that are 
segregated increases, the fund's ability to meet current 
obligations, to honor requests for redemption, and to manage 
properly the investment portfolio in a manner consistent with its 
stated investment objective may become impaired. See Release 10666, 
supra note 20, at ``Segregated Account'' discussion.
    \94\ See also supra note 47.
    \95\ See also, e.g., infra note 115 and accompanying text.
---------------------------------------------------------------------------

    Today, in contrast, many funds apply the mark-to-market segregation 
approach to certain net cash-settled derivatives, and some funds use 
this form of asset segregation extensively.\96\ Under this approach, 
funds segregate an amount equal to the fund's daily mark-to-market 
liability on the derivative, if any.\97\ Although funds initially 
applied this approach to a few specific types of transactions addressed 
through guidance by our staff (interest rate swaps, futures required to 
cash-settle and NDFs), many funds now apply mark-to-market segregation 
to other cash-settled instruments, including total return swaps 
(``TRS'') and cash-settled written options.\98\ As we noted above, our 
staff has observed that some funds appear to apply the mark-to-market 
approach to any derivative that is cash settled.
---------------------------------------------------------------------------

    \96\ See supra notes 56-58 and accompanying text.
    \97\ Id.
    \98\ Id.
---------------------------------------------------------------------------

    The amount of assets that a fund would segregate under the mark-to-
market approach is substantially less than under the approach 
contemplated in Release 10666. The mark-to-market approach therefore 
allows a fund to obtain greater exposures through derivatives 
transactions than the fund could obtain using the approach we 
contemplated in Release 10666 with respect to the trading practices 
described in that release, and also may result in a fund segregating an 
amount of assets that may not be sufficient to enable the fund to meet 
its potential obligations under the derivatives transactions, as 
discussed below.
    In addition to the smaller amount of segregated assets under the 
mark-to-market approach, funds now segregate various types of liquid 
assets, rather than the more narrow range of high-quality assets 
described in Release 10666, in reliance on a no-action letter issued by 
our staff.\99\ A fund that segregates any liquid asset may be able to 
obtain greater leverage than a fund that segregates only the types of 
assets we described in Release 10666, especially when the fund also is 
applying the mark-to-market segregation approach.\100\ This is because 
a fund segregating only the types of assets we described in Release 
10666 would be more constrained in its ability to enter into 
transactions requiring asset coverage by the requirement to maintain 
those kinds of high-quality assets. A fund that segregates any liquid 
asset, in contrast, may invest in various types of securities, 
consistent with its investment strategy, while potentially also using a 
large portion of its portfolio to cover transactions implicating 
section 18.\101\ This facilitates the fund's ability to obtain leverage 
because the fund, by using securities consistent with its strategy to 
cover derivatives transactions, can add additional exposure through 
derivatives without having to also maintain lower-risk assets.\102\
---------------------------------------------------------------------------

    \99\ See Merrill Lynch No-Action Letter, supra note 59 (staff 
no-action letter in which the staff took the position that a fund 
could cover its derivatives-related obligations by depositing any 
liquid asset, including equity securities and non-investment grade 
debt securities, in a segregated account).
    \100\ See, e.g., Vanguard Concept Release Comment letter, at 6 
(``[The Merrill Lynch No-Action Letter] greatly increased the amount 
funds could invest in derivatives because most of a fund's portfolio 
securities could be used to cover its derivatives positions.''); 
Ropes & Gray Concept Release Comment Letter, at 3 (``The Staff's 
subsequent no-action letter issued to Merrill Lynch in 1996 provided 
greater flexibility by allowing a fund to segregate any liquid 
assets, including equity securities and non-investment grade debt--
thus potentially expanding the nature of the investment leverage 
risks associated with derivatives.''); 2010 ABA Derivatives Report, 
supra note 70, at 14 (``This position [taken in the Merrill Lynch 
No-Action Letter] greatly increased the degree to which funds could 
use derivatives because all or substantially all of their portfolio 
securities could be used to `cover' their derivatives positions.'').
    \101\ See, e.g., id.
    \102\ For example, in a settled enforcement action discussed 
below involving funds that obtained exposure to certain commercial 
mortgage-backed securities (``CMBS'') mainly through TRS contracts, 
our order issued in connection with the matter noted that, unlike an 
actual purchase of CMBS, the TRS contracts required no initial 
commitment of cash, which allowed the funds to take on large amounts 
of CMBS exposure without having to liquidate other positions, but it 
also caused them to take on leverage by adding market exposure on 
top of other assets on their balance sheets. See infra note 123 and 
accompanying text.
---------------------------------------------------------------------------

b. Concerns Regarding Funds' Ability To Obtain Leverage
    Together, funds' use of the mark-to-market segregation approach 
with respect to various types of derivatives, plus the segregation of 
any liquid asset, enables funds to obtain leverage to a greater extent 
than was contemplated in Release 10666. Segregating only a fund's daily 
mark-to-market liability--and using any liquid asset--enables the fund, 
using derivatives, to obtain exposures substantially in excess of the 
fund's net assets.\103\ For derivatives for

[[Page 80894]]

which there is no loss for a given day, a fund applying the mark-to-
market approach might not segregate any assets.\104\ This may be the 
case, for example, because the derivative is currently in a gain 
position, or because the derivative has a market value of zero (as will 
generally be the case at the inception of a transaction). The mark-to-
market approach therefore generally will not limit a fund's ability to 
obtain substantial exposures through derivatives.
---------------------------------------------------------------------------

    \103\ See, e.g., Ropes & Gray Concept Release Comment Letter, at 
3 (in the context of Release 10666 ``[a]s originally conceived by 
the Commission,'' explaining that ``[a]s a practical matter, 
requiring the segregation of assets but not limiting the permitted 
segregation to cash equivalents effectively permitted funds to incur 
investment leverage up to a theoretical limit equal to 100% of a 
fund's net assets''; also noting that ``industry practice has 
evolved further since 1996 [when the staff issued the Merrill Lynch 
No-Action Letter, supra note 59] in a manner that could, in some 
instances, allow for investment leverage that exceeds the 100% limit 
that was implicit in earlier Commission and Staff positions''.).
    \104\ The fund may, however, still be required to post 
collateral to comply with other regulatory or contractual 
requirements. See, e.g., Comment Letter of Rafferty Asset 
Management, LLC on Concept Release (Nov. 7, 2011) (File No. S7-33-
11) (``Rafferty Concept Release Comment Letter''), available at 
http://www.sec.gov/comments/s7-33-11/s73311-40.pdf, at 12 (noting 
that ``all swap'' contracts have an ``out of the money value of the 
contract [of] zero'' at inception, but that the firm's swap 
contracts ``typically require the Funds to post collateral equal to 
approximately 20% of the notional value of the swap transaction'').
---------------------------------------------------------------------------

    To evaluate the extent of funds' derivatives exposure, our staff 
reviewed funds' holdings and compared the amount of exposure under the 
funds' derivatives, based on the derivatives' notional amounts, with 
the fund's net assets.\105\ As discussed in more detail in the DERA 
White Paper, our staff found that, although many funds do not use 
derivatives, and most funds do not use a substantial amount of 
derivatives, some funds do use derivatives extensively. Some of the 
funds making extensive use of derivatives obtained notional exposures 
through derivatives that were substantially in excess of their net 
assets under a mark-to-market approach and these funds could obtain 
even higher exposures by applying such an approach. Funds included in 
our staff's review sample had notional exposures ranging up to almost 
ten times a fund's net assets. Although we recognize that funds use 
derivatives for various reasons, a fund with derivatives notional 
exposures of almost ten times its net assets and having the potential 
for additional exposures, for example, does not appear to be subject to 
a practical limit on leverage as we contemplated in Release 10666.\106\
---------------------------------------------------------------------------

    \105\ Our staff also reviewed the extent to which funds used 
financial commitment transactions and the extent to which the funds 
entered into other types of senior securities transactions pursuant 
to section 18 or 61.
    \106\ See, e.g., Ropes & Gray Concept Release Comment Letter, at 
4 (noting that ``[i]t now appears to be an increasingly common 
practice for funds that engage in cash-settled swaps to segregate 
assets only to the extent required to meet the fund's daily mark-to-
market liability, if any, relating to such swaps'' but that, ``[o]f 
course, in many cases this liability will not fully reflect the 
ultimate investment exposure associated with the swap position'' and 
that, ``[a]s a result, a fund that segregates only the market-to-
market liability could theoretically incur virtually unlimited 
investment leverage using cash-settled swaps''); Keen Concept 
Release Comment Letter, at 20 (stating that the mark-to-market 
approach, as applied to cash settled swaps, ``imposes no effective 
control over the amount of investment leverage created by these 
swaps, and leaves it to the market to limit the amount of leverage a 
fund may use'').
---------------------------------------------------------------------------

    Funds are able to obtain such high levels of derivatives exposures 
relative to the funds' net assets primarily because of their use of the 
mark-to-market approach with respect to various types of derivatives, 
as discussed above.\107\ We observed the argument in the Concept 
Release that segregating only the mark-to-market liability ``may 
understate the risk of loss to the fund [and] permit the fund to engage 
in excessive leveraging . . . .'' \108\ Concerns about the efficacy of 
the mark-to-market approach may be exacerbated by funds' application of 
the mark-to-market approach to TRS in particular. This greatly expands 
the potential use of the mark-to-market approach because a TRS can 
reference any asset, including a range of securities, commodities, or 
other derivatives.\109\ Nearly any type of investment that a fund could 
make directly can be transformed into a cash-settled TRS which, as 
noted above, may ``produce[] an exposure and economic return 
substantially equal to the exposure and economic return a fund could 
achieve by borrowing money from the counterparty in order to purchase 
the equities that are reference assets'' under the TRS.\110\
---------------------------------------------------------------------------

    \107\ Our staff also has stated that it would not object to a 
fund covering its obligations by entering into certain cover 
transactions or holding the asset (or the right to acquire the 
asset) that the fund would be required to deliver under certain 
derivatives. See supra note 53. See also infra section III.B.1.d.
    \108\ See Concept Release, supra note 3, at text accompanying 
n.83. See also supra note 106.
    \109\ When a fund purchases a total return swap, the fund agrees 
with a counterparty that the fund will periodically pay a specified 
fixed or floating rate and will receive any appreciation and any 
interest or dividend payments on a specified reference asset(s), and 
will pay any depreciation on the reference asset(s). See, e.g., ISDA 
Product Descriptions and Frequently Asked Questions, available at 
http://www.isda.org/educat/faqs.html#28 (``A total return swap is a 
agreement in which one party (total return payer) transfers the 
total economic performance of a reference obligation to the other 
party (total return receiver). Total economic performance includes 
income from interest and fees, gains or losses from market 
movements, and credit losses.'').
    \110\ See BlackRock Concept Comment Letter, at 4 and 
accompanying text.
---------------------------------------------------------------------------

c. Concerns Regarding Funds' Ability To Meet Their Obligations
    Funds' current practices also may not ``assure the availability of 
adequate [assets] to meet the obligations arising from [funds' 
derivatives transactions],'' as we contemplated in Release 10666, and 
thus may implicate the asset sufficiency concern expressed in section 
1(b)(8) of the Act. In Release 10666, we stated a fund should segregate 
liquid assets equal in value to the fund's full obligation under the 
transactions described in that release from the outset of the 
transaction.\111\ Consistent with Release 10666, funds applying the 
notional amount segregation approach segregate an amount of assets 
equal in value to the full amount of the fund's potential obligation 
under derivatives, where that amount is known at the outset of the 
transaction, or the full market value of the underlying reference asset 
for the derivative.\112\ Segregating assets equal in value to the 
fund's full potential obligation under a derivative generally would be 
expected to enable the fund to meet that obligation.
---------------------------------------------------------------------------

    \111\ See supra note 47.
    \112\ See supra notes 54-55 and accompanying text.
---------------------------------------------------------------------------

    A fund using the mark-to-market approach, however, segregates 
assets the fund deems liquid in an amount equal to the fund's daily 
mark-to-market liability on the derivative, if any. This approach looks 
only to losses, and corresponding potential payment obligations under 
the derivative, that the fund already has incurred. A fund that follows 
this approach is not necessarily segregating assets in anticipation of 
possible future losses and any corresponding payment obligations, and 
the fund's segregation of assets equal to its mark-to-market liability 
on any particular day provides no assurances that future losses will 
not exceed the amount of assets the fund has segregated or would 
otherwise have available to meet the payment obligations resulting from 
such losses. A fund's mark-to-market liability on any particular day 
could be substantially smaller than the fund's ultimate obligations 
under a derivative.\113\ As

[[Page 80895]]

noted above, if there is no mark-to-market liability for the fund on a 
given day, for example because the derivative is currently in a gain 
position or the fund has just entered into a derivative like a swap for 
which there is no daily loss for either party at inception, the fund 
might not segregate any assets.\114\
---------------------------------------------------------------------------

    \113\ See, e.g., ICI Concept Release Comment Letter, at 11 
(noting that ``calculating a fund's exposure daily based only on its 
net obligations--the `mark-to-market' approach--may create a risk 
that market movements could increase a fund's exposure, so that the 
segregated assets are worth less than the fund's obligation'' and 
that ``[h]ypothetically, in an extreme scenario, a fund that used 
derivatives heavily and segregated most of its liquid assets to 
cover its obligation on a pure mark-to-market basis could 
potentially find itself with insufficient liquid assets to cover its 
derivative positions''); Vanguard Concept Release Comment Letter, at 
n.15 (noting that ``using a market value [asset segregation] test 
for certain transactions can result in the under-segregation of 
assets''); AQR Concept Release Comment Letter, at 4 (``The current 
asset segregation approach, while it has been effective in 
mitigating the risks section 18 was designed to address (i.e., 
excessive borrowing and operating without adequate assets and 
reserves), has some weaknesses. In particular, as applied to swaps, 
the daily end-of-day segregation of changes in market value do not 
reflect the likelihood of loss or volatility of the reference 
instrument. Intra-day value fluctuations are ignored. For futures, 
the issues are similar.''); Ropes & Gray Concept Release Comment 
Letter, at 4 (noting that a swap's mark-to-market liability, if any, 
``in many cases . . . will not fully reflect the ultimate investment 
exposure associated with the swap position'').
    \114\ See supra note 104 and accompanying text.
---------------------------------------------------------------------------

    Where a fund segregates any liquid asset, rather than the more 
narrow range of high-quality assets we described in Release 10666, the 
segregated assets may be more likely to decline in value at the same 
time as the fund experiences losses on its derivatives than if the fund 
had segregated the types of liquid assets we described in Release 
10666.\115\ In this case, or when a fund's derivatives payment 
obligations are substantial relative to the fund's assets, the fund may 
be forced to sell portfolio securities to meet its derivatives payment 
obligations, potentially in stressed market conditions.\116\ That a 
fund has segregated assets it deems sufficiently liquid to cover a 
derivative's daily mark-to-market liability, if any, thus may not 
effectively assure the fund will have liquid assets to meet its future 
obligations under the derivative.\117\
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    \115\ See, e.g., Comment Letter of Better Markets, Inc. on 
Concept Release (Nov. 7, 2011) (File No. S7-33-11), available at 
http://www.sec.gov/comments/s7-33-11/s73311-42.pdf, at 5 (stating 
that ``the broadening of segregated assets [permitted by the Merrill 
Lynch No-Action letter] increases the probability that the embedded 
credit associated with the derivatives will result in a senior 
payment of money from the Funds'' . . . and, in addition, ``the 
assets could be positively correlated with the derivatives risk 
being offset'' and that ``[l]oss on the derivatives risk could be 
compounded by loss on the asset''); 2010 ABA Derivatives Report, 
supra note 70, at 16 (where only the mark-to-market liability, if 
any, is segregated, ``a fund's exposure under a derivative contract 
could increase significantly on an intraday basis, resulting in the 
segregated assets being worth less than the fund's obligations 
(until the fund is able to place additional assets in the segregated 
account . . . . To the extent that a fund relying on the Merrill 
Lynch Letter segregates assets whose prices are somewhat volatile, 
this `shortfall' could be magnified'').
    \116\ We noted in Release 10666 that ``in an extreme case an 
investment company which has segregated all its liquid assets might 
be forced to sell non-segregated portfolio securities to meet its 
obligations upon shareholder requests for redemption. Such forced 
sales could cause an investment company to sell securities which it 
wanted to retain or to realize gains or losses which it did not 
originally intend.'' See Release 10666, supra note 20, at 
``Segregated Account'' discussion. See also infra note 123 and 
accompanying text.
    \117\ See, e.g., Keen Concept Release Comment Letter, at 20 
(``The out-of-the money value of a swap [segregated under the mark-
to-market approach] only represents how much the fund already has 
lost, not the potential loss that might be incurred during the term 
of the swap. The potential loss represents the risk of investment 
leverage, but the Division's position [regarding the mark-to-market 
approach] does not require the fund to maintain any assets to cover 
this risk. The only practical limit is the fund's need to maintain a 
buffer of unsegregated assets to cover fluctuations in the swap's 
out-of-the-money value.'') (emphasis in original); MFDF Concept 
Release Comment Letter, at 4 (``A fund can also have significant 
liability exposures connected with a derivative position, 
particularly if that position does not perform as expected. Because 
the extent of these liabilities can far outweigh the initial 
investment in the instrument, the use of derivatives raises 
potentially serious concerns under the Investment Company Act of 
1940 . . . .'').
---------------------------------------------------------------------------

    Some commenters on the Concept Release appear to have recognized 
that segregation of a fund's daily mark-to-market liability alone may 
not be sufficient in at least some cases. As discussed in more detail 
below in section III.C of this Release, some commenters have suggested 
that we impose asset segregation requirements under which a fund would 
include in its segregated account for a derivative an amount determined 
by the fund, in addition to the daily mark-to-market liability, 
designed to address future losses.\118\ Some commenters stated that it 
may be appropriate for a fund to maintain this additional amount, 
sometimes referred to as a ``cushion'' by commenters, in addition to 
assets used to cover any daily mark-to-market liability.\119\ Some of 
these commenters further recommended that such an asset segregation 
requirement be complemented by additional guidance or requirements, 
with at least one commenter suggesting that we may wish to consider 
also imposing an ``overall leverage limit.'' \120\
---------------------------------------------------------------------------

    \118\ See, e.g., ICI Concept Release Comment Letter; Comment 
Letter of Invesco Advisers, Inc. on Concept Release (Nov. 7, 2011) 
(File No. S7-33-11) (``Invesco Concept Release Comment Letter''), 
available at http://www.sec.gov/comments/s7-33-11/s73311-20.pdf 
(supporting the ICI's recommendation concerning asset segregation); 
BlackRock Concept Release Comment letter; Comment Letter of 
Securities Industry and Financial Markets Association on Concept 
Release (Nov. 23, 2011) (File No. S7-33-11) (``SIFMA Concept Release 
Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-51.pdf; Vanguard Concept Release Comment Letter.
    \119\ See, e.g., ICI Concept Release Comment Letter, at 3 
(``When segregating less than the most conservative full notional 
amount, the segregation policy should require a more in depth 
analysis to ensure that the fund has a `cushion' to address the 
potential loss from derivative contracts that could arise before the 
next time obligations are marked to market (often, the end of the 
next day''); SIFMA Concept Release Comment Letter, at 4 (``The 
`cushion' would address some potential shortcomings of a simple 
mark-to-market value measure, such as the risk that a Fund's 
indebtedness under a derivative could increase significantly on an 
intraday basis, resulting in a gap between the value of a Fund's 
segregated assets and its actual payment obligations under the 
derivative.'').
    \120\ See Vanguard Concept Release Comment Letter, at n.18 (``We 
recognize that the SEC may have concerns about allowing funds to 
develop their own asset segregation approach based upon SEC 
examples. To allay those concerns, the SEC may wish to consider 
adopting an overall leverage limit that funds would be required to 
comply with, notwithstanding that they have segregated liquid assets 
to back their obligations.''). See also, e.g., ICI Concept Release 
Comment Letter, at 12 (``For funds that choose to segregate assets 
at less than the most conservative levels, we recommend that the SEC 
or its staff set forth general guidance that provides `guardrails' 
to ensure appropriate protections for investors.'').
---------------------------------------------------------------------------

    For all of these reasons, funds' current practices, based on their 
application of Commission and staff guidance, may in some cases fail to 
impose an effective limit on the amount of leverage that funds can 
obtain through derivatives or necessarily require that funds have 
adequate assets to meet their obligations arising under the derivatives 
transactions.\121\ This is not consistent with our stated expectations 
in Release 10666 that funds' use of the segregated account approach as 
described in that release would achieve these goals, consistent with 
the undue speculation concern expressed in section 1(b)(7) and the 
asset sufficiency concern expressed in section 1(b)(8).\122\
---------------------------------------------------------------------------

    \121\ We observed in the Concept Release the concern that the 
mark-to-market segregation approach, which we understand is 
increasingly used by funds with respect to various derivatives, 
``may understate the risk of loss to the fund, permit the fund to 
engage in excessive leveraging, fail to adequately set aside 
sufficient assets to cover the fund's ultimate exposure, and, 
therefore, perhaps not adequately fulfill the purposes underlying 
the segregated account approach and section 18.'' See Concept 
Release, supra note 3, at text accompanying n.83.
    \122\ See Release 10666, supra note 20, at ``Segregated 
Account'' discussion (stating that ``[i]f an investment company 
continues to engage in the described securities trading practices 
and properly segregates assets, the segregated account will function 
as a practical limit on the amount of leverage which the investment 
company may undertake and on the potential increase in the 
speculative character of its outstanding common stock'' and that 
``such accounts will assure the availability of adequate funds to 
meet the obligations arising from such activities'') (emphasis 
added).
---------------------------------------------------------------------------

d. Examples of Substantial Derivatives-Related Losses
    Three relatively recent settled enforcement actions provide 
examples of situations in which funds' use of derivatives caused 
significant losses and

[[Page 80896]]

are relevant to our consideration of whether funds' current practices, 
based on their application of Commission and staff guidance, are 
consistent with the investor protection purposes and concerns 
underlying section 18 of the Investment Company Act. The funds' 
experiences in these cases demonstrate the substantial and rapid losses 
that can result from a fund's investments in derivatives. The first 
action also demonstrates the further losses that can arise when a 
fund's portfolio securities also experience declines in value at the 
same time that the fund is required to make additional payments under 
the derivatives contracts.
    The first action involved two mutual funds that suffered losses 
driven primarily by their exposure to certain commercial mortgage-
backed securities (``CMBS''), obtained mainly through TRS.\123\ Unlike 
an actual purchase of CMBS, these TRS contracts required no initial 
commitment of cash; this allowed the funds to take on large amounts of 
CMBS exposure without having to liquidate other positions, but it also 
caused them to take on leverage by adding market exposure on top of 
other assets on their balance sheets.
---------------------------------------------------------------------------

    \123\ See In the matter of OppenheimerFunds, Inc. and 
OppenheimerFunds Distributor, Inc., Investment Company Act Release 
No. 30099 (June 6, 2012) (settled action).
---------------------------------------------------------------------------

    In late 2008, CMBS spreads widened to unprecedented levels, 
triggering substantial payment obligations for the funds under the TRS 
contracts while market values for the funds' portfolio securities also 
fell, further driving down the funds' net asset value per share. Amidst 
this declining market the funds also were required to sell portfolio 
securities to raise cash to meet their obligations under the TRS 
contracts. In addition, the adviser provided sponsor support to one of 
the funds by investing $150 million in the fund in November 2008 to 
provide the fund with liquidity after its anticipated TRS payments for 
that month totaled approximately one-third of the fund's net assets and 
almost twice its available cash. Both of the funds experienced losses 
far greater than those suffered by their peer funds. One fund's share 
price declined nearly 80% (compared to an average decline of 
approximately 26% among its peers), far more than any sector in which 
the fund invested. This occurred because the fund was substantially 
leveraged as a result of its derivatives, particularly TRS contracts. 
The other fund's share price declined approximately 36% (compared to an 
average decline of approximately 4% among its peers).
    The second action \124\ involved a registered closed-end fund that 
pursued an investment strategy involving written out-of-the money put 
options and short variance swaps.\125\ These derivatives transactions 
led to substantial losses for the fund in September and October 2008, 
when the fund realized a loss of approximately $45.4 million, or 45% of 
the fund's net assets as of the end of August 2008, on five written put 
options and variance swaps, contributing to a 72.4% two-month decline 
in the Fund's net asset value. The fund was liquidated in May 2009.
---------------------------------------------------------------------------

    \124\ See In the matter of Claymore Advisors, LLC, Investment 
Company Act Release No. 30308 (Dec. 19, 2012); In the matter of 
Fiduciary Asset Management, LLC, Investment Company Act Release No. 
30309 (Dec. 19, 2012) (settled actions).
    \125\ Variance swaps are essentially a bet on whether the actual 
or realized market volatility will be higher or lower than the 
market's expectation for volatility (or ``implied volatility''). A 
party with a ``long variance'' position profits when realized 
volatility for the contract period is greater than the implied 
volatility. A party with a ``short variance'' position profits 
whenever realized volatility is less than the implied volatility.
---------------------------------------------------------------------------

    The third action \126\ involved a registered closed-end fund that 
primarily invested in distressed debt until 2008, when it changed 
course and shorted credit by purchasing large amounts of CDS. In 2008 
and early 2009, the fund's short exposure significantly increased as a 
result of large CDS purchases. The large CDS portfolio dramatically 
changed the fund's risk profile. Starting around April 2009, credit 
conditions began to improve and distressed debt increased in value, 
leading to large mark-to-market losses for the fund's CDS portfolio. In 
addition, the high cost of maintaining the CDS positions contributed to 
the fund's losses. In 2012, the fund performed very poorly in large 
part because of its short-credit CDS portfolio, and the fund's board 
voted to liquidate the fund.
---------------------------------------------------------------------------

    \126\ See In the Matter of UBS Willow Management L.L.C. and UBS 
Fund Advisor L.L.C., Investment Company Act Release No. 31869 (Oct. 
16, 2015) (settled action).
---------------------------------------------------------------------------

    Examples of the use of derivatives by investment funds that are not 
subject to the limitations under the Investment Company Act, including 
private funds, such as hedge funds, that are excluded from regulation 
under the Investment Company Act by section 3(c)(1) or 3(c)(7) of the 
Act also may be relevant in considering registered funds' use of 
derivatives.\127\ Private funds' experience with the use of derivatives 
can help demonstrate the risks associated with derivatives generally, 
and private funds' experience also may be more directly relevant to the 
extent registered funds are obtaining leverage to a similar extent as 
private funds and pursuing similar investment strategies.
---------------------------------------------------------------------------

    \127\ Section 3(c)(1) excludes from the definition of 
``investment company'' any issuer whose outstanding securities are 
beneficially owned by not more than one hundred persons and which is 
not making and does not presently propose to make a public offering 
of its securities (other than short term paper). Section 3(c)(7) 
excludes from the definition of ``investment company'' any issuer, 
the outstanding securities of which are owned exclusively by persons 
who, at the time of acquisition of such securities, are qualified 
purchasers, and which is not making and does not at that time 
propose to make a public offering of such securities. Private funds 
that rely on section 3(c)(1) or 3(c)(7) are not required to comply 
with any of the capital structure or leverage limitations under the 
Act, and the use of leverage by private funds, including hedge 
funds, may be an important component of their investment strategies.
---------------------------------------------------------------------------

    As one example, a private fund with approximately $10.2 billion of 
net assets lost $4.9 billion in natural gas futures positions in a 
period of a few weeks in August and September 2006 and was forced to 
liquidate its entire portfolio and close.\128\ While the fund engaged 
in a range of investment strategies, its primary strategy involved a 
long-short strategy in one type of energy commodity--natural gas--that 
it traded through NYMEX futures and OTC swaps. The fund's exposure on 
its long and short natural gas positions in August 2006 could have been 
viewed as balanced or hedged at the time it made the investments, in 
that the fund reportedly had a net exposure that was much less 
substantial than the fund's substantial long and short gross 
exposures.\129\ However, losses incurred on a portion of the fund's 
positions (which were not offset by gains on its other positions) 
resulted in substantial margin calls on the fund that it was unable to 
meet with its available cash, and the fund's adviser liquidated the 
fund's entire portfolio of natural gas positions and closed the fund, 
with losses to investors of almost 50% of the fund's net asset value.
---------------------------------------------------------------------------

    \128\ See Ludwig B. Chincarini, A Case Study on Risk Management: 
Lessons from the Collapse of Amaranth Advisors L.L.C., 18 J. of 
Applied Fin. 152 (Spring/Summer 2008), available at http://ludwigbc.com/pubs/pub9.pdf.
    \129\ See id., at 159 (``The position is `hedged' in the sense 
that if natural gas futures prices rise or fall, one position's loss 
will be partly offset by the other's gain. However, the position is 
focusing on a spread bet.'').
---------------------------------------------------------------------------

    This example demonstrates the challenges in assessing whether 
ostensibly hedged or covered positions will perform as intended (for 
example, whether a position intended to hedge another exposure may fail 
to have a hedging effect and instead result in additional, speculative 
exposure). In the example above, the private fund's adviser may have 
expected that the fund's long and short positions would

[[Page 80897]]

hedge a substantial amount of the risk inherent in each set of 
positions, and this could have been the case under various 
circumstances. But it was not the case in August and September of 2006, 
when the fund experienced the substantial losses discussed above 
leading to its liquidation.
2. Need for an Updated and More Comprehensive Approach
    We now propose to take an updated and more comprehensive approach 
to the regulation of funds' use of derivatives and the application of 
the senior security restrictions in section 18. The current approach 
has developed over the years since we issued Release 10666 as funds and 
our staff sought to apply our statements in Release 10666 to various 
types of derivatives and other transactions on an instrument-by-
instrument basis. We understand that, in determining how they will 
comply with section 18, funds consider various no-action letters issued 
by our staff. These letters were issued in the 1970s, 1980s, and 1990s, 
and addressed particular questions presented to the staff concerning 
the application of the approach enunciated in Release 10666 to various 
types of derivatives on an instrument-by-instrument basis.\130\ We 
understand that funds also consider, in addition to these letters, 
other guidance they may receive from our staff and the practices that 
other funds disclose in their registration statements.
---------------------------------------------------------------------------

    \130\ See Registered Investment Company Use of Senior 
Securities-Select Bibliography, available at http://www.sec.gov/divisions/investment/seniorsecurities-bibliography.htm (prepared by 
the staff and citing staff no-action letters).
---------------------------------------------------------------------------

    The current approach's development on an instrument-by-instrument 
basis, together with the dramatic growth in the volume and complexity 
of the derivatives markets over the past two decades, has resulted in 
situations for which there is no specific guidance from us or our staff 
with respect to various types of derivatives.\131\ We noted in the 
Concept Release the concern that the segregated account approach, by 
calling for an instrument-by-instrument assessment of the amount of 
cover required, may create uncertainty about the treatment of new 
products, and that new product development will inevitably lead to 
circumstances in which available guidance does not specifically address 
each new instrument subject to section 18 constraints.\132\
---------------------------------------------------------------------------

    \131\ See, e.g., ICI Concept Release Comment Letter, at 9 (``A 
principles based approach is necessary because the SEC staff's 
traditional instrument by instrument approach to guidance has 
created, and would continue to create, regulatory uncertainty.'').
    \132\ See Concept Release, supra note 3, at n.79 and 
accompanying text.
---------------------------------------------------------------------------

    Under the current approach, different funds may treat the same kind 
of derivative differently, based on their own application of our 
staff's guidance and observation of industry practice, which at least 
one commenter noted ``may unfairly disadvantage some funds.'' \133\ 
Where there is no specific guidance, or where the application of 
existing guidance is unclear, funds may take approaches that involve a 
more extensive use of derivatives and that may not address the purposes 
and concerns underlying section 18 of the Act, as discussed above. The 
lack of guidance addressing some derivatives may create competitive 
pressures for funds to take approaches that involve a more extensive 
use of derivatives. The current approach, having developed over time, 
may treat similar derivatives in a manner that results in substantially 
different amounts of segregated assets, and may itself influence funds' 
investment decisions.\134\ The lack of comprehensive guidance also 
makes it difficult for funds and our staff to evaluate and inspect for 
funds' compliance with section 18. A number of commenters on the 
Concept Release supported a more comprehensive and systematic approach, 
rather than an approach in which we or our staff provide guidance on an 
instrument-by-instrument basis, which these commenters generally 
suggested would be less effective.\135\
---------------------------------------------------------------------------

    \133\ See, e.g., Davis Polk Concept Release Comment Letter, at 
1-2 (noting that ``funds and their sponsors may interpret the 
available guidance differently, even when applying it to the same 
instruments, which may unfairly disadvantage some funds'').
    \134\ See, e.g., ICI Concept Release Comment Letter, at n.19 
(noting that funds segregate the notional amount of physically 
settled futures contracts, consistent with the Dreyfus no-action 
letter, while some funds disclose that they segregate only the 
marked-to-marked obligation in respect of cash-settled futures and 
agreeing with the concern reflected in the Concept Release that this 
``results in differing treatment of arguably equivalent products''); 
Davis Polk Concept Release Comment Letter, at 3 (noting that ``[t]he 
current approach to segregation leaves many open questions and may 
lead to inconsistent results for financially similar instruments,'' 
noting for example that very few funds use physically settled 
futures contracts because staff guidance has applied the notional 
segregation approach to these contracts and, ``[i]nstead, funds 
enter into over-the-counter swaps that provide similar economic 
exposure, even though swaps tend to be more expensive and present 
other potential risks, such as counterparty risk and lack of 
liquidity'').
    \135\ See, e.g., ICI Concept Release Comment Letter, at 9 
(advocating for a principles-based approach and noting, among other 
things, that ``the SEC staff's approach to date of providing 
guidance with respect to specific types of instruments has created a 
patchwork of interpretations that is neither practical nor 
sustainable''); Davis Polk Concept Release Comment Letter, at 1 
(noting that while guidance from the Commission and staff ``has been 
helpful, it has not been able to keep pace with the dramatic 
expansion of the derivatives market over the past twenty years, both 
in terms of the types of instruments that are available and the 
extent to which funds use them,'' and that resulting ``regulatory 
uncertainty may lead a fund to select one type of instrument or 
transaction over another for non-investment reasons, or to avoid 
certain instruments or transactions altogether,'' which ``can lead 
to inefficiencies that are detrimental to funds and their 
shareholders''); BlackRock Concept Release Comment Letter, at 5 
(``Any set of mechanical rules cannot take account of the diversity 
of derivatives and the multiplicity of ways they may be used by 
portfolio managers.''); Invesco Concept Release Comment Letter; 
Loomis Concept Release Comment Letter; Comment Letter of American 
Bar Association on Concept Release (Nov. 11, 2011) (File No. S7-33-
11) (``ABA Concept Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-47.pdf; MFDF Concept Release 
Comment Letter; Comment Letter of T. Rowe Price Associates, Inc. on 
Concept Release (Nov. 7, 2011) (File No. S7-33-11) (``T. Rowe Price 
Concept Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-35.pdf; Vanguard Concept Release Comment 
Letter.
---------------------------------------------------------------------------

    A fund's use of derivatives may involve counterparty, liquidity, 
leverage, market, and operational risks, as noted above. As we observed 
in the Concept Release, ``[a] fund's use of derivatives presents 
challenges for its investment adviser and board of directors to ensure 
that the derivatives are employed in a manner consistent with the 
fund's investment objectives, policies, and restrictions, its risk 
profile, and relevant regulatory requirements, including those under 
federal securities laws.'' \136\ In light of these considerations and 
those we discuss in section III.D below, we believe that funds that 
make significant use of derivatives, or that use certain complex 
derivatives, should have formalized risk management programs to manage 
the risks that derivatives may pose and to help address the challenges 
and investor protection concerns presented by their use.\137\
---------------------------------------------------------------------------

    \136\ Concept Release, supra note 3, at 14. See also, e.g., 
Comment Letter of Capital Market Risk Advisors on Concept Release 
(Nov. 1, 2011) (File No. S7-33-11), available at http://www.sec.gov/comments/s7-33-11/s73311-19.pdf (supporting risk management for 
derivatives, but also for all more complex and less liquid 
instruments).
    \137\ See, e.g., Oppenheimer Concept Release Comment Letter, at 
3 (stating that ``a core component in the oversight of the use of 
derivatives by funds should be the board's awareness of the controls 
in place, and the effectiveness of the adviser's governance of risk 
in maintaining this awareness'' and that ``[w]e believe it is 
reasonable for the SEC to expect large and sophisticated investment 
advisers to have in place a well-developed risk governance framework 
incorporating an independent risk management function, governance 
structures designed to ensure the comprehensive review by 
appropriate levels of management of risk issues and reporting to a 
fund's board designed to facilitate and enhance effective board 
oversight'').

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[[Page 80898]]

III. Discussion

    As noted above, the dramatic growth in the volume and complexity of 
the derivatives markets over the past two decades, and the increased 
use of derivatives by certain funds, led us to initiate a review of 
funds' use of derivatives under the Investment Company Act. Based on 
that review, including the considerations we discussed in section II.D 
above and throughout this Release, we are today proposing rule 18f-4, 
an exemptive rule designed to address the investor protection purposes 
and concerns underlying section 18 and to provide an updated and more 
comprehensive approach to the regulation of funds' use of derivatives 
transactions and financial commitment transactions. This proposal is 
part of a broader set of initiatives designed to address the 
increasingly complex portfolio composition and operations of the asset 
management industry.\138\
---------------------------------------------------------------------------

    \138\ Other initiatives include modernizing investment company 
reporting and disclosure and proposing liquidity risk management 
programs for open-end funds, including exchange-traded funds. See 
Investment Company Reporting Modernization, Investment Company Act 
Release No. 31610 (May 20, 2015) [80 FR 33590 (June 12, 2015)] 
(``Investment Company Reporting Modernization Release''); Amendments 
to Form ADV and Investment Advisers Act Rules, Advisers Act Release 
No. 4091 (May 20, 2015) [80 FR 33718 (June 12, 2015)]; Liquidity 
Release, supra note 5.
---------------------------------------------------------------------------

    Proposed rule 18f-4 would permit a fund to enter into derivatives 
transactions, as defined in the rule, provided that the fund complies 
with three primary sets of conditions of the rule designed to address 
the purposes and concerns underlying section 18.\139\ First, the fund 
would be required to comply with one of two alternative portfolio 
limitations designed to impose a limit on the amount of leverage the 
fund may obtain through derivatives transactions and other senior 
securities transactions. The first portfolio limitation would place an 
overall limit on the amount of exposure (as defined in the rule) to 
underlying reference assets, and potential leverage, that a fund would 
be able to obtain through derivatives transactions and other senior 
securities transactions by limiting the fund's exposure under these 
transactions to 150% of the fund's net assets. The second portfolio 
limitation would focus primarily on a risk assessment of the fund's use 
of derivatives, and would permit a fund to obtain exposure in excess of 
that permitted under the first portfolio limitation where the fund's 
derivatives transactions, in aggregate, result in an investment 
portfolio that is subject to less market risk than if the fund did not 
use such derivatives, evaluated using a value-at-risk-based test.
---------------------------------------------------------------------------

    \139\ The proposed rule would provide an exemption from certain 
provisions of section 18 and 61 of the Act, subject to conditions. 
The proposed rule could be used by any fund subject to the 
requirements of section 18 or 61, including mutual funds, closed-end 
funds, BDCs, most ETFs, and exchange-traded managed funds. 
(Exchange-traded managed funds, a hybrid between a traditional 
mutual fund and an ETF, are open-end funds that the Commission has 
approved. See Eaton Vance Management, et al., Investment Company Act 
Release Nos. 31333 (Nov. 6, 2014) (notice) and 31361 (Dec. 2, 2014) 
(order)). The rule would not apply to unit investment trusts 
(``UITs''), including ETFs structured as UITs, because UITs are not 
subject to the requirements of section 18. However, as the 
Commission has noted (in addressing futures contracts and 
commodities options), derivatives transactions generally require a 
significant degree of management and may not meet the requirements 
imposed on a UIT by the Investment Company Act, including section 
4(2) thereof. See section 4 of the Act; see also Custody Of 
Investment Company Assets With Futures Commission Merchants And 
Commodity Clearing Organizations, Investment Company Act Release No. 
22389 (Dec. 11, 1996), at n.18 (explaining that UIT portfolios are 
generally unmanaged).
---------------------------------------------------------------------------

    Second, the fund would be required to manage the risks associated 
with the fund's derivatives transactions by maintaining an amount of 
certain assets, defined in the proposed rule as ``qualifying coverage 
assets,'' designed to enable the fund to meet its obligations under its 
derivatives transactions. To satisfy this requirement the fund would be 
required to maintain qualifying coverage assets to cover the fund's 
mark-to-market obligations under a derivatives transaction, as well as 
an additional amount, determined in accordance with policies and 
procedures approved by the fund's board, designed to address potential 
future losses and resulting payment obligations under the derivatives 
transaction. The fund's qualifying coverage assets for its derivatives 
transactions generally would be required to consist of cash and cash 
equivalents.
    Third, except with respect to funds that engage in only a limited 
amount of derivatives transactions and that do not use certain complex 
derivatives transactions as defined in the proposed rule, the fund 
would be required to establish a formalized derivatives risk management 
program administered by a designated derivatives risk manager. The 
derivatives risk management program requirement is designed to 
complement the proposed rule's portfolio limitations and asset 
segregation requirements applicable to every fund that engages in 
derivatives transactions by requiring funds subject to the requirement 
to adopt and implement a derivatives risk management program that 
addresses the program elements specified in the rule, including the 
assessment and management of the risks associated with the fund's 
derivatives transactions. The program would be administered by a 
derivatives risk manager designated by the fund and approved by the 
fund's board of directors.
    The proposed rule also would permit a fund to enter into financial 
commitment transactions, which include the trading practices we 
described in Release 10666 and short sale borrowings, provided that the 
fund complies with conditions requiring the fund to maintain qualifying 
coverage assets equal in value to the fund's full obligations under its 
financial commitment transactions. Because in many cases the timing of 
the fund's payment obligations may be specified under the terms of a 
financial commitment transaction or the fund may otherwise have a 
reasonable expectation regarding the timing of the fund's payment 
obligations with respect to its financial commitment transactions, a 
fund relying on the proposed rule would be able to maintain as 
qualifying coverage assets for a financial commitment transaction 
assets that are convertible to cash or that generate cash prior to the 
date on which the fund expects to be required to pay its obligations 
under the transaction, determined in accordance with policies and 
procedures approved by the fund's board of directors.\140\
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    \140\ A fund relying on the proposed rule would also be able to 
maintain as qualifying coverage assets for a financial commitment 
transaction fund assets that have been pledged with respect to the 
financial commitment obligation and can be expected to satisfy such 
obligation, determined in accordance with policies and procedures 
approved by the fund's board of directors.
---------------------------------------------------------------------------

    The proposed rule would supersede the guidance we provided in 
Release 10666, as well as the guidance provided by our staff concerning 
funds' use of derivatives and financial commitment transactions, which 
we would rescind if we adopt the proposed rule.\141\
---------------------------------------------------------------------------

    \141\ See infra section III.I.
---------------------------------------------------------------------------

A. Structure and Scope of Proposed Rule 18f-4

1. Structure of Proposed Rule 18f-4
    Proposed rule 18f-4, as summarized above, is designed both to 
impose a limit on the leverage a fund relying on the rule may obtain 
through derivatives transactions and financial commitment transactions, 
and to require the fund to have qualifying coverage assets to meet its 
obligations under those transactions, in order to address the undue 
speculation concern expressed in

[[Page 80899]]

section 1(b)(7) and the asset sufficiency concern expressed in section 
1(b)(8). We discuss in this section of the Release the structure and 
general approach of proposed rule 18f-4, and discuss the scope of the 
defined terms ``derivatives transactions'' and ``financial commitment 
transactions'' in section III.A.2 below.
    As discussed in more detail in the sections that follow, in order 
to rely on the exemption provided by proposed rule 18f-4 to enter into 
derivatives transactions, a fund would be required to comply with one 
of two alternative portfolio limitations and, separately, to maintain 
qualifying coverage assets designed to enable the fund to meet its 
obligations under those transactions and to require the fund to manage 
the risks associated with those transactions. The proposed rule's 
portfolio limitations are designed primarily to address concerns about 
a fund's ability to obtain leverage through derivatives transactions, 
whereas the proposed rule's requirements to maintain qualifying 
coverage assets are designed primarily to address concerns about a 
fund's ability to meet its obligations. We believe that this approach 
for derivatives transactions--providing separate portfolio limitations 
and asset segregation requirements--would be more effective than an 
approach focusing only on asset segregation, particularly when it is 
coupled with a formalized risk management program for funds that engage 
in more than a limited amount of derivatives transactions or that use 
certain complex derivatives transactions, as we are proposing today.
    We have determined to propose portfolio limitation and risk 
management requirements for derivatives transactions, in addition to an 
asset segregation requirement, because as discussed in section II.D 
above, asset segregation alone in some cases may not provide a 
sufficient limit on the amount of leverage a fund can obtain through 
derivatives or sufficient assurances that a fund would have adequate 
assets to meet its obligations arising under derivatives transactions. 
The asset segregation approach described in Release 10666 achieved both 
of these goals--limiting leverage and addressing availability of 
assets--because that release contemplated that funds would segregate 
high-quality liquid assets equal in value to the fund's full 
obligations. A fund that segregated liquid assets equal to the purchase 
price in a standby commitment agreement, for example, would be limited 
in its ability to enter into standby commitment agreements because the 
fund could not incur obligations under those agreements in excess of 
the fund's available liquid assets; by segregating liquid assets equal 
to the purchase price of the standby commitment agreement, the fund 
would have assets available to meet its obligations under the 
agreement.
    Although this approach appears to have addressed the concerns 
underlying section 18 for the particular instruments described in 
Release 10666 and is similar to the approach we are proposing today for 
financial commitment transactions, applying it to derivatives 
transactions by requiring funds to segregate the kinds of liquid assets 
we described in Release 10666 equal in value to the full notional 
amount of each derivative could in some cases require funds to hold 
more liquid assets than may be necessary to address the investor 
protection purposes and concerns underlying section 18. The notional 
amount of a derivatives transaction does not necessarily equal, and 
often will exceed, the amount of cash or other assets that a fund 
ultimately would likely be required to pay or deliver under the 
derivatives transaction. By addressing concerns related to a fund's 
ability to obtain leverage through derivatives transactions primarily 
through the proposed portfolio limitations and separately addressing 
concerns related to a fund's ability to meets its derivatives 
obligations primarily through the proposed requirements to maintain 
qualifying coverage assets, the proposed rule is designed to address 
each concern more directly, while still providing a flexible framework 
that can be applied by funds to various types of derivatives as they 
are developed in the marketplace.
    These requirements also would be complemented by the proposed 
rule's risk management requirements, which would require funds that 
engage in more than a limited amount of derivatives transactions or 
that use certain complex derivatives transactions, as defined in the 
proposed rule, to develop formalized risk management programs 
reasonably designed to assess and manage the risk associated with those 
transactions based on the fund's own facts and circumstances. This 
requirement should serve to establish a standardized level of risk 
management for funds that engage in more than a limited amount of 
derivatives transactions or that use complex derivatives transactions.
2. Definitions of Derivatives Transactions and Financial Commitment 
Transactions
    The proposed rule defines the term ``derivatives transaction'' to 
mean any swap, security-based swap, futures contract, forward contract, 
option, any combination of the foregoing, or any similar instrument 
(``derivatives instrument'') under which a fund is or may be required 
to make any payment or delivery of cash or other assets during the life 
of the instrument or at maturity or early termination.\142\ This 
definition is designed to describe those derivatives transactions that 
in our view involve the issuance of a senior security, as discussed in 
section II.B.4 above, because they involve a future payment obligation, 
that is, an obligation or potential obligation of the fund to make 
payments or deliver assets to the fund's counterparty.
---------------------------------------------------------------------------

    \142\ Proposed rule 18f-4(c)(2).
---------------------------------------------------------------------------

    The proposed rule's definition of ``derivatives transaction'' 
incorporates a list of derivatives instruments. We believe this list of 
derivatives instruments, together with the proposed rule's inclusion of 
``similar instruments,'' covers the types of derivatives that funds 
currently use and that involve fund obligations that implicate section 
18, and that this list is sufficiently comprehensive to include 
derivatives that may be developed in the future.\143\ We believe that 
this approach is preferable to having a more conceptual definition of 
derivatives transaction, such as an instrument or contract whose value 
is based upon, or derived from, some other asset or metric, which could 
be too broad or more difficult to apply, in that it could be understood 
to include or potentially include instruments or transactions that are 
sometimes referred to as ``derivatives'' but which typically would not 
be expected to implicate section 18.
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    \143\ Title VII of the Dodd-Frank Act established a 
comprehensive framework for the regulation of swaps and security-
based swaps. The definitions of these terms under section 1a of the 
Commodity Exchange Act and section 3(a)(68) of Securities Exchange 
Act, respectively, are detailed and expansive, and were designed to 
encompass a wide range of derivatives, including those that could be 
developed in the future.
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    The proposed rule would define a ``financial commitment 
transaction'' as any reverse repurchase agreement, short sale 
borrowing, or any firm or standby commitment agreement or similar 
agreement.\144\ This definition is designed to describe the trading 
practices addressed in Release 10666, as well as short sales of 
securities, for which the staff initially developed the

[[Page 80900]]

segregated account approach we applied in Release 10666. These 
transactions involve a conditional or unconditional contractual 
obligation to pay or deliver assets in the future and thus involve the 
issuance of a senior security, as discussed in section II.B.4 of this 
Release.
---------------------------------------------------------------------------

    \144\ Proposed rule 18f-4(c)(4).
---------------------------------------------------------------------------

    The proposed rule's definition of financial commitment transactions 
includes firm and standby commitment agreements, which we addressed in 
Release 10666,\145\ as well as any similar agreement.\146\ The rule 
includes, as a similar agreement, an agreement under which a fund has 
obligated itself, conditionally or unconditionally, to make a loan to a 
company or to invest equity in a company, including by making a capital 
commitment to a private fund that can be drawn at the discretion of the 
fund's general partner.\147\ We understand that funds often refer to 
these transactions as ``unfunded commitments.'' In these transactions, 
as with respect to firm and standby commitment agreements, the fund has 
incurred a conditional or unconditional contractual obligation to pay 
or deliver assets in the future.
---------------------------------------------------------------------------

    \145\ See Release 10666, supra note 20, at ``Reverse Repurchase 
Agreements,'' ``Firm Commitment Agreements,'' and ``Standby 
Commitment Agreements'' discussions.
    \146\ Proposed rule 18f-4(c)(4).
    \147\ The definition would not include a transaction under which 
a fund merely is required to deliver cash or assets as part of 
regular-way settlement of a securities transaction (rather than a 
forward-settling transaction or transaction in which settlement is 
deferred). Cf. Release 10666, supra note 20, at n.11.
---------------------------------------------------------------------------

    The fund would be exposed to risks as a result of these 
transactions in that the fund may be required to liquidate other assets 
of the fund to obtain the cash needed by the fund to satisfy its 
obligations, and if the fund is unable to meet its obligations, the 
fund would be subject to default remedies available to its 
counterparty. For example, if a fund fails to fulfill its commitments 
to invest in a private fund when called to do so, the fund could be 
subject to the remedies specified in the limited partnership agreement 
(or similar document) relating to that private fund, which can include, 
for example, a forfeiture of some or all of the fund's investment in 
the private fund.\148\
---------------------------------------------------------------------------

    \148\ See, e.g., Phyllis A. Schwartz & Stephanie R. Breslow, 
Private Equity Funds: Formation and Operation (June 2015 ed.), at 2-
34 (remedies private equity funds may apply in event of investor 
default include, among other things, the right to charge high 
interest on late payments, the right to force a sale of the 
defaulting investor's interest, the right to continue to charge 
losses and expenses to defaulting investors while cutting off their 
interest in future profits, and the right to take any other action 
permitted at law or in equity).
---------------------------------------------------------------------------

    The rule's definitions of the terms ``derivatives transactions'' 
and ``financial commitment transactions,'' discussed above, would 
specify the types of transactions in which a fund would be permitted to 
engage under the rule, subject to its conditions. Other senior 
securities transactions that do not fall within either of these 
definitions, such as borrowings from a bank by mutual funds or the 
issuance of other debt securities or preferred equity by closed-end 
funds or BDCs, could only be done pursuant to the requirements of 
section 18 (or section 61 in the case of BDCs) or in accordance with 
some other exemption, rather than proposed rule 18f-4.
    We request comment on all aspects of the proposed rule's 
definitions of the terms ``derivatives transaction'' and ``financial 
commitment transaction.''
     Is the definition of ``derivatives transaction'' 
sufficiently clear? Are there additional types of derivatives 
instruments that we should include or any that we should exclude?
     The proposed rule's definition of the term derivatives 
transactions is designed to describe those derivatives transactions 
that would involve the issuance of a senior security. Do commenters 
agree that this is an appropriate approach? Does the rule effectively 
describe all of the types of derivatives transactions that would 
involve the issuance of a senior security? The proposed rule's 
definition of ``derivatives transaction'' incorporates a list of 
derivatives instruments, rather than a conceptual definition such as an 
instrument or contract whose value is based upon, or derived from, some 
other asset or metric, because we believe that the definition's list of 
derivatives instruments would more clearly describe the types of 
derivatives that implicate section 18 than a conceptual definition. Do 
commenters agree? Why or why not?
     The proposed rule would define a ``financial commitment 
transaction'' as any reverse repurchase agreement, short sale 
borrowing, or any firm or standby commitment agreement or similar 
agreement. The proposed rule includes, as a similar agreement, an 
agreement under which a fund has obligated itself, conditionally or 
unconditionally, to make a loan to a company or to invest equity in a 
company, including by making a capital commitment to a private fund 
that can be drawn at the discretion of the private fund's general 
partner. Do commenters agree with the scope of this definition? Are 
these terms sufficiently clear? Do commenters agree that it is 
appropriate to include these transactions?
     Are there additional types of transactions that we should 
include in the definition of a ``financial commitment transaction''? 
Adding additional transactions to the definition would permit the fund 
to engage in those transactions by complying with the proposed rule, 
rather than section 18 or 61. Are there transactions that we should 
exclude from the definition and for which a fund should be required to 
comply with the requirements of section 18 (to the extent permitted 
under section 18), rather than the proposed rule's conditions?
     Our staff has expressed the view that a fund's loan of 
portfolio securities may involve the issuance of a senior security in 
light of the fund's obligation to return the collateral upon 
termination of the loan and has expressed the view that ``a mutual fund 
should not have on loan at any given time securities representing more 
than one-third of its total asset value.'' \149\ Should we address 
funds' compliance with section 18 in connection with securities lending 
by, instead, including a fund's obligation to return securities lending 
collateral as a financial commitment transaction? Alternatively, should 
we require a fund to include the obligation to return securities 
lending collateral for purposes of the proposed rule's exposure limits, 
as discussed in more detail in section III.B? Or does the current 
approach under which funds do not have on loan at any given time 
securities representing more than one-third of the funds' total assets, 
together with other guidance from our staff concerning securities 
lending by funds, effectively address the senior security implications 
of securities lending such that we should not address securities 
lending in the proposed rule? Which approach would be most appropriate 
and why?
---------------------------------------------------------------------------

    \149\ See, e.g., The Brinson Funds, SEC Staff No-Action Letter 
(Nov. 25, 1997), available at https://www.sec.gov/divisions/investment/noaction/1997/brinsonfunds112597.pdf (stating that, 
``[a]s a general matter, securities lending arrangements are 
regulated under Section 17(f) of the Investment Company Act of 1940, 
which governs custody arrangements,'' but that ``[t]he staff has 
stated that a fund's loan of portfolio securities may involve the 
issuance of a senior security in light of the fund's obligation to 
return the collateral upon termination of the loan'').
---------------------------------------------------------------------------

     The proposed rule would permit a fund to enter into a 
derivatives transaction or financial commitment transaction, 
notwithstanding the requirements of section 18 or 61 of the Act, if the 
fund complies with the rule's conditions. Are there other rules or 
forms we should consider modifying if

[[Page 80901]]

we adopt the proposed rule? Should we, for example, amend Form N-2 to 
provide that funds required to file on that form should not include 
derivatives transactions and financial commitment transactions in the 
senior securities table? Are there other aspects of our rules and forms 
that we should consider amending if we were to adopt the proposed rule? 
If so, which rules and form items and why?
     Should any final rule address, or should we provide 
guidance concerning, funds' compliance with other aspects of section 18 
in connection with funds' use of derivatives transactions or financial 
commitment transactions? For example, because the proposed rule would 
permit a fund to enter into derivatives transactions and financial 
commitment transactions notwithstanding section 18(a)(1) and section 
18(f)(1), a fund relying on the proposed rule would not be required to 
comply with section 18's 300% asset coverage requirement (or section 
61's 200% asset coverage requirement) with respect to such 
transactions.\150\ Should we, however, address in any final rule or 
provide guidance concerning the application of the asset coverage 
requirements under section 18 or 61 when a fund also enters into senior 
securities transactions in reliance on section 18 or 61 (such as bank 
borrowings or, in the case of a closed-end fund or BDC, the issuance of 
senior debt or preferred stock)? When a fund is calculating asset 
coverage under section 18(h) for senior securities transactions 
permitted by section 18 or 61, how should the fund treat its 
derivatives transactions or financial commitment transactions? When 
determining the ``aggregate amount of senior securities representing 
indebtedness,'' how should the fund treat any liabilities and 
indebtedness associated with the fund's derivatives transactions and 
financial commitment transactions? Currently, when funds are 
determining the amount of their liabilities and indebtedness and the 
amount of their senior securities for purposes of calculations under 
section 18(h), are funds determining these amounts in accordance with 
U.S. generally accepted accounting principles? Should a fund also 
include any liabilities and indebtedness associated with derivatives 
transactions and financial commitment transactions based on U.S. 
generally accepted accounting principles? Alternatively, should a fund 
treat any liabilities and indebtedness for these transactions as 
``liabilities and indebtedness not represented by senior securities''? 
What approach would be appropriate and why?
---------------------------------------------------------------------------

    \150\ ``Asset coverage'' of a class of securities representing 
indebtedness of an issuer generally is defined in section 18(h) of 
the Investment Company Act as ``the ratio which the value of the 
total assets of such issuer, less all liabilities and indebtedness 
not represented by senior securities, bears to the aggregate amount 
of senior securities representing indebtedness of such issuer.'' See 
supra note 34.
---------------------------------------------------------------------------

     Is there any guidance we should provide concerning funds' 
compliance with other provisions of the Investment Company Act in 
connection with funds' use of derivatives transactions or financial 
commitment transactions in reliance on the proposed rule?

B. Portfolio Limitations for Derivatives Transactions

    The proposed rule would require a fund that engages in derivatives 
transactions in reliance on the rule to comply with one of two 
alternative portfolio limitations.\151\ As explained in more detail 
below, under the first portfolio limitation (the ``exposure-based 
portfolio limit''), a fund generally would be required to limit its 
aggregate exposure to 150% of the fund's net assets. A fund's 
``exposure'' for this purpose generally would be calculated as the 
aggregate notional amount of its derivatives transactions, together 
with its obligations under financial commitment transactions and other 
senior securities transactions. The second portfolio limitation (the 
``risk-based portfolio limit'') would permit a fund to obtain exposure 
in excess of that permitted under the exposure-based portfolio limit 
where the fund's derivatives transactions, in aggregate, result in an 
investment portfolio that is subject to less market risk than if the 
fund did not use such derivatives, evaluated using a test based on 
value-at-risk (``VaR''). A fund electing the risk-based portfolio limit 
generally would be required to limit its exposure under derivatives 
transactions, financial commitment transactions, and other senior 
securities transactions to 300% of the fund's net assets. As discussed 
below, these portfolio limitations are designed primarily to address 
the undue speculation concern expressed in section 1(b)(7) by imposing 
an overall limit on the amount of exposure to underlying reference 
assets, and potential leverage, that a fund would be able to obtain 
through derivatives and other senior securities transactions, while 
also providing flexibility for a fund to use derivatives for a variety 
of purposes.\152\
---------------------------------------------------------------------------

    \151\ Proposed rule 18f-4(a)(1).
    \152\ The proposed rule's portfolio limitations, although 
designed to impose a limit on potential leverage, also could help to 
address concerns about a fund's ability to meet its obligations. As 
noted above, the use of derivatives for leveraging purposes can 
exacerbate the risk that losses on the derivatives, and resulting 
payment obligations imposed on the fund, can force the fund's 
adviser to sell the fund's investments to generate liquid assets in 
order for the fund to meet its obligations. The proposed rule would 
directly address concerns about a fund's ability to meet its 
obligations under its derivatives transactions primarily through the 
proposed rule's requirements to maintain qualifying coverage assets, 
as discussed below in section III.C.
---------------------------------------------------------------------------

1. Exposure-Based Portfolio Limit
a. Overview
    The first portfolio limit would be based on the fund's overall 
exposure to: (1) Derivatives transactions, (2) financial commitment 
transactions, and (3) other transactions involving a senior security 
entered into by the fund pursuant to section 18 or 61 of the Act 
without regard to the exemption that would be provided by the proposed 
rule (i.e., senior securities transactions engaged in by a fund in 
reliance on the requirements of those provisions, rather than in 
reliance on the exemption that would be provided by the proposed 
rule).\153\ The proposed rule would collectively define these 
transactions as ``senior securities transactions.'' \154\ A fund that 
relies on the exposure-based portfolio limit would be required to 
operate so that its aggregate exposure under senior securities 
transactions, measured immediately after entering into any such 
transaction, does not exceed 150% of the fund's net assets.\155\
---------------------------------------------------------------------------

    \153\ Proposed rule 18f-4(a)(1)(i); proposed rule 18f-4(c)(10) 
(defining the term ``senior securities transaction'' to mean any 
derivatives transaction, financial commitment transaction, or any 
transaction involving a senior security entered into by the fund 
pursuant to section 18 or 61 of the Act without regard to the 
exemption provided by the proposed rule).
    \154\ Proposed rule 18f-4(c)(10).
    \155\ Proposed rule 18f-4(a)(1)(i). As discussed below in 
section III.B.2, the risk-based portfolio limit also includes an 
outside limit on a fund's exposure. A fund's exposure for purposes 
of the risk-based portfolio limit would be calculated as described 
in this section of the Release, but the exposure limit would be 300% 
of the fund's net assets rather than 150%. Proposed rule 18f-
4(a)(1)(ii).
---------------------------------------------------------------------------

    The exposure-based portfolio limit is designed to impose an overall 
limit on the amount of exposure, and thus the amount of potential 
leverage, that a fund would be able to obtain through derivatives and 
other senior securities transactions. We discuss and seek comment below 
on the exposure-based portfolio limit, including the proposed rule's 
method of calculating a fund's exposure and the rule's limitation of 
exposure to 150% of the fund's net assets.

[[Page 80902]]

b. Calculation of Exposure
    The proposed rule would define a fund's ``exposure'' as the sum of: 
(1) The aggregate notional amounts of the fund's derivatives 
transactions, subject to certain adjustments discussed below; (2) the 
aggregate obligations of the fund under its financial commitment 
transactions; and (3) the aggregate indebtedness (and with respect to 
any closed-end fund or business development company, involuntary 
liquidation preference) with respect to any other senior securities 
transactions entered into by the fund pursuant to section 18 or 61 of 
the Investment Company Act.\156\ We discuss each aspect of this 
definition below.
---------------------------------------------------------------------------

    \156\ Proposed rule 18f-4(c)(3).
---------------------------------------------------------------------------

i. Exposure for Derivatives Transactions
1. Determination of Notional Amounts
    Under the proposed rule, a fund's exposure would include the 
aggregate notional amounts of its derivatives transactions.\157\ The 
proposed rule would generally define the ``notional amount'' of a 
derivatives transaction, subject to certain adjustments required by the 
rule (discussed below), as the market value of an equivalent position 
in the underlying reference asset for the derivatives transaction, or 
the principal amount on which payment obligations under the derivatives 
transaction are calculated.\158\
---------------------------------------------------------------------------

    \157\ Proposed rule 18f-4(c)(3)(i) (defining ``exposure'').
    \158\ Proposed rule 18f-4(c)(7) (defining ``notional amount'').
---------------------------------------------------------------------------

    We believe that, although derivatives vary widely in terms of 
structure, asset class, risks and potential uses, for most types of 
derivatives the notional amount generally serves as a measure of the 
fund's economic exposure to the underlying reference asset or 
metric.\159\ A total return swap, for example, can provide economic 
exposure equivalent to a long or short position in the reference asset 
for the swap. Similarly, a fund can sell or buy a CDS to obtain 
exposure similar to a long or short position in the credit risk of an 
issuer of a fixed-income security. We also note that notional amounts 
are used in numerous other regulatory regimes as a means of determining 
the scale of the derivatives activities of market participants.\160\ We 
also believe that the definition of notional amount under the proposed 
rule is consistent with the way the term ``notional amount'' (or in 
some cases ``notional value'') generally is used with respect to 
derivatives transactions.\161\
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    \159\ Derivatives may be broadly described as instruments or 
contracts whose value is based upon, or derived from, an underlying 
reference asset (see supra at text preceding note 8). The notional 
amount generally serves a measure of the underlying economic 
exposure because it reflects the value of the underlying reference 
asset for that derivative or the amount of the underlying reference 
asset on which payment obligations are based.
    \160\ See, e.g., Margin and Capital Requirements for Covered 
Swap Entities, 80 FR 74839 (Nov. 30, 2015) (``Prudential Regulator 
Margin and Capital Adopting Release''); Margin Requirements for 
Uncleared Swaps for Swap Dealers and Major Swap Participants, 79 FR 
59898 (Oct. 3, 2014) (``CFTC Margin Proposing Release'') (defining 
``material swaps exposure'' by reference to average daily aggregate 
notional amounts of derivatives transactions). See also Further 
Definition of ``Swap Dealer,'' ``Security-Based Swap Dealer,'' 
``Major Swap Participant,'' ``Major Security-Based Swap 
Participant'' and ``Eligible Contract Participant,'' Exchange Act 
Release No. 66868 (Apr. 27, 2012) [77 FR 30596 (May 23, 2012)] 
(``Swap Dealer/Major Swap Participant Release''), at section II.D 
(discussing use of notional amounts as basis for de minimis 
exemption to swap dealer registration requirements). See also CFTC 
regulations 4.5(c)(ii)(3)(b) and 4.13(a)(3)(ii)(B) (exclusion from 
definition of commodity pool operator and exemption from commodity 
pool operator registration requirement, respectively, in respect of 
certain pools whose commodity interest positions do not exceed 100% 
of the liquidation value of the pool's portfolio). See also infra 
section IV.E (discussing use of notional amounts under UCITS 
regulatory regime).
    \161\ For example, ``notional value'' with respect to futures 
has been defined as ``the underlying value (face value), normally 
expressed in U.S. dollars, of the financial instrument or commodity 
specified in a futures or options on futures contract.'' See CME 
Group Glossary, available at http://www.cmegroup.com/education/glossary.html. `` `Notional principal' or `notional amount' of a 
derivative contract is a hypothetical underlying quantity upon which 
interest rate or other payment obligations are computed.'' ISDA 
Online Product Descriptions and Frequently Asked Questions, 
available at http://www.isda.org/educat/faqs.html#7. The Bank for 
International Settlements describes ``notional amounts outstanding'' 
as ``a reference from which contractual payments are determined in 
derivatives markets.'' Guide to the International Financial 
Statistics, Bank for International Settlements (July 2009) (``BIS 
Guide''), available at http://www.bis.org/statistics/intfinstatsguide.pdf, at 31. See also 2010 ABA Derivatives Report, 
supra note 70, at n.11 (noting that the term ``notional amount'' is 
used differently by different people in different contexts, but is 
used, in the Report, to refer to ``the nominal or face amount that 
is used to calculate payments made on a particular instrument, 
without regard to whether its obligation under the instrument could 
be netted against the obligation of another party to pay the fund 
under the instrument'').
---------------------------------------------------------------------------

    Table 1 below sets forth a list of different types of derivatives 
transactions that are commonly used by funds, together with the method 
by which we understand a fund, for risk management, reporting or other 
purposes, typically would calculate the transaction's notional amount. 
We believe that the proposed rule's definition of notional amount 
generally would allow a fund to use the calculation methods below to 
determine the notional amounts of such derivatives transactions (before 
applying any of the adjustments discussed below) for purposes of 
calculating the fund's exposure under the proposed rule.\162\
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    \162\ The methods for determining the notional amounts in the 
table are similar to those required to be used by UCITS funds that 
follow the commitment approach (discussed further below in section 
IV.E. See European Securities and Markets Authority (formerly 
Committee of European Securities Regulators), Guidelines on Risk 
Measurement and the Calculation of Global Exposure and Counterparty 
Risk for UCITS, CESR/10-788 (July 28, 2010) (``CESR Global 
Guidelines''), available at http://www.esma.europa.eu/system/files/10_788.pdf.

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Forwards:
    FX forward...................................................  Notional contract value of currency leg(s).
    Forward rate agreement.......................................  Notional principal amount.
Futures:
    Treasury futures.............................................  Number of contracts * notional contract size
                                                                    * (futures price * conversion factor +
                                                                    accrued interest).
    Interest rate futures........................................  Number of contracts * contract unit (e.g.,
                                                                    $1,000,000).
    FX futures...................................................  Number of contracts * notional contract size
                                                                    (e.g., 12,500,000 Japanese yen).
    Equity index futures.........................................  Number of contracts * contract unit (e.g.,
                                                                    $50 per index point) * futures index level.
    Commodity futures............................................  Number of contracts * contract size (e.g.,
                                                                    1,000 barrels of oil) * futures price.
    Options on futures...........................................  Number of contracts * contract size * futures
                                                                    price * underlying delta.\163\
Swaps:
    Credit default swap..........................................  Notional principal amount or market value of
                                                                    underlying reference asset.
    Standard total return swap...................................  Notional principal amount or market value of
                                                                    underlying reference asset.
    Currency swap................................................  Notional principal amount.
    Cross currency interest rate swaps...........................  Notional principal amount.
Standardized Options:

[[Page 80903]]

 
    Security options.............................................  Number of contracts * notional contract size
                                                                    (e.g., 100 shares per option contract) *
                                                                    market value of underlying equity share *
                                                                    underlying delta.
    Currency options.............................................  Notional contract value of currency leg(s) *
                                                                    underlying delta.
    Index options................................................  Number of contracts * notional contract size
                                                                    * index level * underlying delta.
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \163\ Delta refers to the ratio of change in the value of an 
option to the change in value of the asset into which the option is 
convertible. The delta-adjusted notional value of options is needed 
to have an accurate measurement of the exposure that an option 
creates to the underlying reference asset. See, e.g., Comment Letter 
of Morningstar, Inc. on Concept Release (Nov. 7, 2011) (File No. S7-
33-11) (``Morningstar Concept Release Comment Letter''), available 
at http://www.sec.gov/comments/s7-33-11/s73311-23.pdf, at 2.
---------------------------------------------------------------------------

    Although we believe that the notional amount generally serves as a 
measure of the fund's exposure to the underlying reference asset or 
metric,\164\ we recognize that a derivative's notional amount does not 
reflect the way in which the fund uses the derivative and that the 
notional amount is not a risk measure. An exposure-based test based on 
notional amounts therefore could be viewed as a relatively blunt 
measurement in that different derivatives transactions having the same 
notional amount but different underlying reference assets--for example, 
an interest rate swap and a credit default swap having the same 
notional amount--may expose a fund to very different potential 
investment risks and potential payment obligations.\165\ We also 
recognize that there are other approaches to evaluating leverage 
associated with a fund's derivatives activities, including approaches 
that disregard or subtract the notional value of hedging transactions 
from the calculation of a fund's exposure.\166\ Leverage can be 
calculated in numerous ways, however, and the appropriateness of a 
particular leverage metric may depend on various considerations, such 
as a fund's strategy and types of investments, and the specific 
leverage-related risks that are being considered.\167\ On balance, we 
believe that, for purposes of the proposed rule, a notional amount 
limitation would be a more effective and administrable means of 
limiting potential leverage from derivatives than a limitation which 
relies on other leverage measures that may be more difficult to adapt 
to different types of fund strategies or different uses of derivatives, 
including types of fund strategies and derivatives that may be 
developed in the future.
---------------------------------------------------------------------------

    \164\ See supra notes 158-160.
    \165\ While credit default swaps are often considered riskier 
than typical interest rate or currency derivatives, the staff has 
observed that even ``plain vanilla'' interest rate and currency 
derivatives can lead to significant losses for funds. See, e.g., 
Katherine Burton, Swiss Franc Trade Is Said to Wipe Out Everest's 
Main Fund, Bloomberg (Jan. 18, 2015), available at http://www.bloomberg.com/news/articles/2015-01-17/swiss-franc-trade-is-said-to-wipe-out-everest-s-main-fundv (noting significant and 
widespread losses following the Swiss National Bank's decision to 
decouple the Swiss franc from the euro).
    \166\ See infra section III.B.1.d.
    \167\ See, e.g., An Overview of Leverage, AIMA Canada (Oct. 
2006) (``An Overview of Leverage''), available at http://www.aima.org/filemanager/root/site_assets/canada/publications/strategy_paper_-_leverage.pdf (distinguishing between financial, 
construction and instrument leverage and describing the measurement 
of leverage using gross market exposure vs. net market exposure). 
See also Off-Balance-Sheet Leverage IMF Working Paper, supra note 79 
(discussing means of measuring leverage in various types of 
derivatives and other off-balance-sheet transactions). See also Ang, 
Gorovyy & Inwegen, supra note 72 (discussing differences among gross 
leverage, net leverage and long-only leverage calculations, as 
applied to long-only, dedicated long-short, general leveraged and 
dedicated short funds). See also Comment Letter of BlackRock, Inc. 
on Investment Company Reporting Modernization (Aug. 11, 2015) (File 
No. S7-08-15) (``BlackRock Modernization Comment Letter''), 
available at http://www.sec.gov/comments/s7-08-15/s70815-318.pdf. In 
the BlackRock Reporting Modernization Comment Letter, the commenter 
proposed a high-level framework for an approach to measuring 
economic leverage that could potentially be applied across different 
types of funds and investment strategies, using comprehensive 
analysis of multiple different types of risk exposures.
---------------------------------------------------------------------------

    The proposed rule would allow a fund operating under the exposure-
based portfolio limit to have exposure of up to 150% of the fund's net 
assets (i.e., more than the fund's net assets) in recognition of the 
various ways in which funds may use derivatives. The 150% limit, 
discussed in more detail below, is designed to balance concerns about 
the limitations of an exposure measurement based on notional amounts 
with the benefits of using notional amounts, such as the ability of 
funds to readily determine the notional amounts of their derivatives 
transactions and the expectation that notional amounts can generally 
serve as a measure of the size of a fund's exposure to underlying 
reference assets or metrics, as discussed above.
    We believe that, for purposes of the exposure-based portfolio 
limit, a test that focuses on the notional amounts of funds' 
derivatives transactions, coupled with an appropriate exposure limit, 
will better accommodate the broad diversity of registered funds and the 
ways in which they use derivatives than a test that would require 
consideration of the manner in which a fund uses derivatives in its 
portfolio (e.g., for hedging).\168\ The rule seeks to achieve a balance 
between providing flexibility regarding the use of derivatives while 
limiting the potential risks associated with leverage by, in addition 
to the exposure limits in the proposed rule, conditioning the rule's 
exemptive relief on other requirements, such as the asset coverage 
requirements discussed in section III.C below and, if applicable, the 
derivatives risk management program requirements discussed in section 
III.D below, which must be tailored in light of the fund's particular 
strategy and other characteristics.
---------------------------------------------------------------------------

    \168\ See infra section III.B.1.d.
---------------------------------------------------------------------------

    Although we believe that an exposure test that focuses on limiting 
the aggregate notional amounts of funds' derivatives transactions is an 
appropriate means of limiting leverage, in some cases, the notional 
amount for a derivatives transaction may not produce a measure of 
exposure that we believe would be appropriate for purposes of the 
proposed rule's exposure limitations. The proposed rule therefore 
includes three provisions relating to the calculation of exposure in 
respect of certain types of derivatives transactions for which we 
believe that an adjusted notional amount would better serve as a 
measure of a fund's investment exposure for purposes of the rule.
    First, for derivatives that provide a return based on the leveraged 
performance of an underlying reference asset, the rule would require 
the notional amount to be multiplied by the applicable leverage 
factor.\169\ Thus, for example, the rule would require a total return 
swap that has a notional amount of $1 million and provides a return 
equal to three times the performance of an equity index to be treated 
as having a notional amount of $3 million. Absent this provision, a 
fund could enter into a derivative with a stated notional amount that 
did not reflect the magnitude of the fund's leveraged investment 
exposure under the derivative.\170\ Such a transaction, if not

[[Page 80904]]

measured based on the leverage inherent in the derivative instrument, 
could otherwise provide a means of structuring transactions to avoid 
the proposed rule's exposure limitations.
---------------------------------------------------------------------------

    \169\ Proposed rule 18f-4(c)(7)(iii)(A).
    \170\ A similar requirement applies to the determination of de 
minimis thresholds for swap dealer and security-based swap dealer 
registration. See Swap Dealer/Major Swap Participant Release, supra 
note 160, at n.427 and accompanying text (stating that, for purposes 
of the de minimis threshold for registration of swap dealers, 
``notional standards will be based on `effective notional' amounts 
when the stated notional amount is leveraged or enhanced by the 
structure of the swap or security-based swap'').
---------------------------------------------------------------------------

    Second, the proposed rule includes a ``look-through'' for 
calculating the notional amount in respect of derivatives transactions 
for which the underlying reference asset is a managed account or entity 
formed or operated primarily for the purpose of investing in or trading 
derivatives transactions, or an index that reflects the performance of 
such a managed account or entity.\171\ We understand that some funds, 
including funds that engage in managed futures or foreign currency 
strategies, obtain their investment exposures for such strategies by 
entering into a swap that references the performance of a managed 
account or entity, which in turn is managed on a discretionary basis by 
a third-party trading manager (such as a commodity trading advisor). 
Such swaps can be used by a fund to obtain a return that is 
economically nearly identical to a direct investment by the fund in the 
derivatives traded by the third-party trading manager for the managed 
account or entity.\172\ Absent a look-through to the derivatives 
transactions of the underlying reference vehicle, such structures could 
be used to avoid the exposure limitations that would be applicable 
under the proposed rule if the fund directly owned the managed account 
or securities issued by the reference entity.\173\ Accordingly, for 
such derivatives transactions, the rule would require a fund to 
calculate the notional amount by reference to the fund's pro rata 
portion of the notional amounts of the derivatives transactions of the 
underlying reference vehicle, which in turn must be calculated in a 
manner consistent with the requirements of the proposed rule.\174\ The 
provision thus would apply to transactions such as swaps on pooled 
investment vehicles that are formed or operated primarily for the 
purpose of investing in or trading derivatives transactions, which 
could include hedge funds, managed futures funds and leveraged ETFs, in 
order to prevent a fund from entering into a leveraged swap on the 
performance of shares or other interests issued by such vehicles and 
thereby indirectly obtain leverage in excess of what the rule would 
permit a fund to obtain directly.
---------------------------------------------------------------------------

    \171\ Proposed rule 18f-4(c)(7)(iii)(B). The managed account or 
interests in the entity may be owned by the fund's counterparty 
(e.g., a swap dealer), which hedges its obligations under the 
derivative through its ownership of such account or interests. In 
some cases, the derivative contract may describe the reference asset 
as an index comprising the performance of transactions 
``notionally'' entered into by the trading manager, or the 
``notional'' performance of an index comprising the managed account 
or entity together with cash and/or other positions. The proposed 
rule's ``look-through'' for calculating notional amounts thus 
applies to derivatives transactions for which the underlying 
reference asset is a managed account or entity formed or operated 
primarily for the purpose of investing in or trading derivatives 
transactions, as well as an index that reflects the performance of 
such a managed account or entity. Id.
    \172\ Some funds appear to use these swaps in such a way that 
nearly all of the fund's investment exposure is indirectly 
attributable to the derivatives traded by the third-party manager 
for the underlying managed account or entity, while the fund's 
direct investments (other than the swap) are limited to cash and 
cash equivalents.
    \173\ For example, a fund might enter into a swap having a 
notional value of $10, corresponding to the value of an equity 
security issued by a trading entity. The fund's counterparty could 
then invest $10 in the trading entity, which in turn could use these 
funds as margin or collateral for leveraged futures or currency 
forward transactions having a much larger aggregate notional amount, 
e.g., $100. Proposed rule 18f-4(c)(7)(iii)(B) would require the fund 
to treat the swap in this example as having a notional amount of 
$100 rather than $10.
    \174\ Thus, for example, if a fund enters into a swap on the 
performance of a trading entity that, in turn, enters into a swap 
that provides a return based on the leveraged performance of an 
equity index, the notional amount of the equity index would need to 
be multiplied by the applicable leverage factor, consistent with the 
method set forth in proposed rule 18f-4(c)(7)(iii)(A), for purposes 
of calculating the fund's pro rata share of the notional amounts of 
the trading entity's derivatives transactions in accordance with 
proposed rule 18f-4(c)(7)(iii)(B).
---------------------------------------------------------------------------

    Third, the proposed rule contains specific provisions for 
calculating the notional amount for certain defined complex derivatives 
transactions. As explained further below, the proposed rule includes 
these provisions because, for complex derivatives transactions, the 
notional amounts of such transactions determined without regard to 
these specific provisions may not serve as an appropriate measure of 
the underlying market exposure obtained by a fund.
    The proposed rule would define a complex derivatives transaction as 
any derivatives transaction for which the amount payable by either 
party upon settlement date, maturity or exercise: (1) Is dependent on 
the value of the underlying reference asset at multiple points in time 
during the term of the transaction; or (2) is a non-linear function of 
the value of the underlying reference asset, other than due to 
optionality arising from a single strike price.\175\ We address each of 
these provisions below.
---------------------------------------------------------------------------

    \175\ See proposed rule 18f-4(c)(1) (defining ``complex 
derivatives transaction'') and proposed rule 18f-4(c)(7)(iii)(C) 
(describing the method for calculating the notional amount for a 
complex derivatives transaction for purposes of the proposed rule).
---------------------------------------------------------------------------

    The first type of complex derivatives transaction is a derivatives 
transaction for which the amount payable by either party upon 
settlement date, maturity or exercise is dependent on the value of the 
underlying reference asset at multiple points in time during the term 
of the transaction.\176\ This provision is designed to capture 
derivatives whose payouts are path dependent, i.e., the payouts depend 
on the path taken by the value of the underlying asset during the term 
of the transaction. Many types of non-standard options exhibit path 
dependency.\177\ An example of a path dependent derivative would be a 
barrier option. Barrier options (also known as knock-in or knock-out 
options) have a payoff that is contingent on whether the price of the 
underlying asset reaches some specified level prior to expiration.\178\ 
Another example would be an Asian option, which has a payoff that 
depends on the average value of the underlying asset from inception 
until expiration.\179\ By contrast, a standard put or call option 
having a single strike price would not be a complex derivatives 
transaction under this provision of the definition, because the payout 
of a standard put or call option depends on the value of the reference 
asset only upon exercise, i.e., at a single point rather than multiple 
points in time during the term of the transaction.
---------------------------------------------------------------------------

    \176\ See proposed rule 18f-4(c)(1)(i).
    \177\ See Paul Wilmott, Paul Wilmott on Quantitative Finance 
(2nd ed. 2006) (``Wilmott''), at 371 (options that ``have payoffs 
that depend on the path taken by the underlying asset, and not just 
the asset's value at expiration . . . are called path dependent.'' 
See also CESR Global Guidelines, supra note 162, at 12 (noting that 
``[c]ertain derivative instruments exhibit risk characteristics that 
mean the standard conversion approach is not appropriate as it does 
not adequately capture the inherent risks relating to this type of 
product. Some derivatives, for example, may exhibit path-dependency, 
such features emphasising the need to have both robust models for 
risk management and pricing purposes, but also to reflect their 
complexity in the commitment calculation methodology'').
    \178\ Wilmott, supra note 177, at 371.
    \179\ Id. A third example would be an option with a lookback 
feature, which has a payoff that depends on whether a maximum or 
minimum value of the underlying asset occurred during some period 
prior to expiration. A lookback call option, for example, pays at 
settlement the difference between the final asset price and the 
lowest price of the asset observed during the term of the option. 
Because the payoff is contingent on two prices--the final asset 
price and the lowest observed price--a lookback call option would be 
a complex derivatives transaction. See id. at 383; see also Robert 
Whaley, Derivatives: Markets, Valuation, and Risk Measurement (2006) 
(``Whaley''), at 291.
---------------------------------------------------------------------------

    The second type of complex derivatives transaction is a derivatives 
transaction for which the amount

[[Page 80905]]

payable by either party upon settlement date, maturity or exercise is a 
non-linear function of the value of the underlying reference asset, 
other than due to optionality arising from a single strike price.\180\ 
Most types of derivatives traded on an exchange or with standardized 
terms (other than exchange-traded or standardized options) involve 
payment amounts between the parties that change on a dollar-for-dollar 
basis tracking changes in the value of the underlying reference asset. 
We refer to these calculations under relatively standardized terms as 
involving a linear function of the value of the underlying reference 
assets. An example of a ``non-linear'' derivatives transaction that 
would be a complex derivatives transaction under this provision of the 
definition would be a variance swap. A variance swap is an instrument 
that allows investors to profit from the difference between the current 
implied volatility and future realized volatility of an asset; however, 
the payoff for a variance swap is a function of the difference between 
current implied variance and future realized variance of the 
asset.\181\ Because variance is the square of volatility, the payment 
obligations under a variance swap are non-linear.\182\
---------------------------------------------------------------------------

    \180\ See proposed rule 18f-4(c)(1)(ii).
    \181\ See, e.g., Sebastien Bossu, Introduction to Variance 
Swaps, Wilmott Magazine, available at http://www.wilmott.com/pdfs/111116_bossu.pdf, at 50-51.
    \182\ See, e.g., Peter Allen, Stephen Eincomb & Nicolas Granger, 
Variance Swaps, JPMorgan Investment Strategies: No. 28 (Nov. 17, 
2006), at 11 (noting that ``variance swap strikes are quoted in 
terms of volatility, not variance; but pay out based on the 
difference between the level of variance implied by the strike (in 
fact the strike squared) and the subsequent realised variance'').
---------------------------------------------------------------------------

    This second provision of the definition of complex derivatives 
transaction includes a carve-out that would exclude derivatives for 
which payout upon settlement date, maturity or exercise is non-linear 
due to optionality arising from a single strike price. This exception 
is designed to exclude standard put or call options from the complex 
derivatives transaction definition, which would otherwise be captured 
because their payout is non-linear. For example, the payout for a 
standard cash-settled written call option is either equal to zero (if 
the price of the underlying asset at maturity is less than or equal to 
the strike price) or equal to the difference between the value of the 
underlying asset and the strike price (if the price of the underlying 
asset at maturity is greater than the strike price), and is therefore 
non-linear. We believe that it is unnecessary to treat standard put and 
call options as complex derivatives transactions because the method for 
determining the notional amount for such derivatives, i.e., the market 
value of the underlying asset multiplied by its delta, serves as an 
appropriate measure of a fund's exposure for purposes of the rule 
because it generally would result in a notional amount that reflects 
the market value of an equivalent position in the underlying reference 
asset for the derivatives transaction.\183\
---------------------------------------------------------------------------

    \183\ See, e.g., Mark Rubinstein & Hayne E. Leland, Replicating 
Options with Positions in Stock and Cash, 51 Financial Analysts J. 
113 (Jan./Feb. 1995) (demonstrating how a long or short position in 
a standard put or call can be replicated by holding a long or short 
position in a number of shares of the underlying stock corresponding 
to the option's delta, which would have a value equal to the option 
delta multiplied by the underlying stock price).
---------------------------------------------------------------------------

    The proposed rule would include a special provision for calculating 
the notional amount of complex derivatives transactions for purposes of 
determining a fund's exposure.\184\ This provision is designed to 
address two primary concerns. The first is that the notional amount for 
some complex derivatives, if determined without regard to this 
provision, may not appropriately reflect the fund's underlying market 
exposure for purposes of the portfolio limitation. For example, the 
notional amount of a variance swap is typically expressed in terms of 
``vega notional,'' i.e., a measure of volatility. This vega notional 
amount is used to calculate the payout for a variance swap, but it does 
not correspond to the market value or principal amount of a reference 
asset that can appropriately be compared against a fund's net assets 
for purposes of the exposure-based portfolio limit.\185\ A second 
concern is that complex derivatives can have market risks that are 
difficult to estimate due to the presence of multiple forms of 
optionality or other non-linearities, which similarly may not be 
adequately reflected in a notional amount calculated without separately 
considering each of the risks as with the special provision in the 
proposed rule for complex derivatives transactions.\186\
---------------------------------------------------------------------------

    \184\ Proposed rule 18f-4(c)(7)(iii)(C).
    \185\ For example, a fund that invests in a total return swap on 
an equity index having a notional amount of $100 can be said to have 
exposure similar to a $100 investment in the index components. By 
contrast, it is not possible to draw a comparison between the 
notional amount of a variance swap on the same equity index and a 
direct investment in the index components.
    \186\ The UCITS Commitment Approach Guidelines express a similar 
concern. See CESR Global Guidelines, supra note 162, at 12 (noting 
that a common feature of non-standard derivatives is ``the existence 
of a highly volatile delta which could, for example, result in 
significant losses'' and therefore ``many of these instruments will 
need to be assessed on a case by case basis'').
---------------------------------------------------------------------------

    The proposed rule seeks to address these concerns by specifying an 
alternative approach for determining the notional amount for a complex 
derivatives transaction. Under this approach, the notional amount of a 
complex derivatives transaction would be equal to the aggregate 
notional amount(s) of other derivatives instruments, excluding other 
complex derivatives transactions (together, ``substituted 
instruments''), reasonably estimated to offset substantially all of the 
market risk of the complex derivatives transaction at the time the fund 
enters into the transaction.\187\ This approach is designed to address 
the difficulty of determining the notional amount for some complex 
derivatives transactions and the concern that the reference asset or 
metric may not by itself be an appropriate measure of the underlying 
market exposure, by substituting, in effect, the notional amounts of 
non-complex instruments that mirror the market risk of the complex 
derivatives transaction.\188\ For example, a barrier option in some 
cases can be hedged using standard put and call options (which would 
not be complex derivatives transactions provided that they had a single 
strike price).\189\ In that case, a fund could use the aggregate 
notional amount of such puts and calls (i.e., the strike price 
multiplied by the delta) as the notional

[[Page 80906]]

amount for purposes of determining the fund's exposure.\190\
---------------------------------------------------------------------------

    \187\ Proposed rule 18f-4(c)(7)(iii)(C). As discussed in section 
III.F below, the proposed rule would require the fund to maintain a 
written record demonstrating that immediately after the fund entered 
into any senior securities transaction, the fund complied with the 
portfolio limitation applicable to the fund immediately after 
entering into the senior securities transaction, including the 
fund's aggregate exposure, among other things. Where the fund enters 
into a complex derivatives transaction, the fund, in documenting its 
exposure immediately after entering into the transaction, would be 
required to document the way it determined the notional amount of 
the complex derivatives transaction, that is, the notional amount(s) 
of substituted instruments that could reasonably be expected to 
offset substantially all of the market risk of the complex 
derivatives transaction at the time the fund entered into the 
transaction.
    \188\ The UCITS Global Exposure Guidelines similarly call for 
derivatives with complex structures to be ``broken down into 
component parts'' so that ``the effect of layers of derivative 
exposures [can] be adequately captured.'' CESR Global Guidelines, 
supra note 162, at 12. See also Wilmott, supra note 177, at 506 
(stating, with regard to ``exotic'' derivatives, that ``[i]f a 
contract can be decomposed into simpler, vanilla products, then 
that's what you should do for pricing and hedging'').
    \189\ See generally Wilmott, supra note 177, at 969-987 
(describing methods for hedging barrier options using ``vanilla'' 
exchange-traded options); see also Peter Carr, Katrina Ellis & 
Vishal Gupta, Static Hedging of Exotic Options, 53 J. of Fin. 1165, 
1169 (June 1998) (describing methods for hedging barrier options, 
lookback options and other ``exotic'' options using standard put and 
call options).
    \190\ The proposed rule would not require a fund to actually 
invest in substituted instruments instead of investing in the 
complex derivatives transaction, but rather would require a fund to 
use the notional amounts of substituted instruments in order to 
determine its exposure for purposes of the proposed rule's portfolio 
limitations.
---------------------------------------------------------------------------

(2) Netting of Certain Derivatives Transactions
    The proposed rule includes a netting provision that would permit a 
fund, in determining its aggregate notional exposure, to net any 
directly offsetting derivatives transactions that are the same type of 
instrument and have the same underlying reference asset, maturity and 
other material terms.\191\ This limited netting provision is designed 
to apply to those types of derivatives transactions for which, due to 
regulation, transaction structure or market practice, a fund typically 
would use an offsetting transaction to effectively settle all or a 
portion of the transaction prior to expiration or maturity, such as 
certain futures and forward transactions. It would also apply to 
situations in which a fund seeks to reduce or eliminate its economic 
exposure under a derivatives transaction without terminating the 
transaction. This may be the case, for example, if terminating the 
transaction would be more costly to the fund (for example, because the 
fund would need to pay an early termination fee) than entering into an 
offsetting transaction with another counterparty, or if terminating the 
transaction would cause the fund to realize gain or loss for tax 
purposes earlier than would be required if the fund entered into an 
offsetting transaction. The netting provision under the proposed rule 
accordingly would permit a fund to exclude from its aggregate exposure 
the notional amounts associated with transactions that are entered into 
by the fund to eliminate the fund's exposure under another transaction 
through a directly offsetting transaction as described under the 
proposed rule.\192\
---------------------------------------------------------------------------

    \191\ Proposed rule 18f-4(c)(3)(i).
    \192\ The netting provision under the proposed rule is not 
designed to enable a fund generally to disregard or subtract from 
the calculation of a fund's exposure the notional amount of 
transactions that the fund deems to be hedging or risk mitigating. 
See section III.B.1.d. The netting provision applies only to 
directly offsetting derivatives transactions that are the same type 
of instrument and have the same underlying reference asset, maturity 
and other material terms.
---------------------------------------------------------------------------

    With respect to transactions that are directly offsetting but 
involve different counterparties, we note that, although a fund would 
remain exposed to counterparty risk, such offsetting transactions could 
reasonably be expected to eliminate market risk associated with the 
offsetting transactions if they are the same type of instrument and 
have the same underlying reference asset, maturity and other material 
terms. Accordingly, we believe that such transactions are an 
appropriate means to eliminate or reduce market exposure under 
derivatives transactions even if entered into with different 
counterparties for purposes of the rule's exposure limits, which are 
designed to limit the extent of the fund's exposure.
    By contrast, the netting provision would not apply to transactions 
that may have certain offsetting risk characteristics but do not have 
the same underlying reference asset, maturity and other material terms 
or involve different types of derivatives instruments. For example, 
while a long position in a March 2016 copper futures contract could 
directly offset a short position in the same March 2016 copper futures 
contract, it would not directly offset a short position with respect to 
copper options or April 2016 copper futures. Similarly, a purchased 
option would not offset a written option that has a different maturity 
date or a different underlying reference asset. With respect to 
transactions that do not have the same underlying reference asset, 
maturity and other material terms, we are concerned that these 
transactions may not merely have the effect of eliminating or reducing 
market exposure. For example, they might instead be used as paired 
``collar'' or ``spread'' investment positions that could raise 
potential risks associated with strategies that seek to capture small 
changes in the value of such paired investments. We also believe that 
it would be difficult to develop standards for determining 
circumstances under which such transactions should be considered to 
have eliminated the market and leverage risks associated with the 
positions in a manner that would appropriately limit the potential for 
funds to incur excessive leverage or unduly speculative exposures.
ii. Exposure for Financial Commitment Transactions and Other Senior 
Securities
    A fund also would be required to include, in calculating its 
exposure: (1) The amount of cash or other assets that the fund is 
conditionally or unconditionally obligated to pay or deliver under any 
financial commitment transactions (``financial commitment 
obligations''); \193\ and (2) the aggregate indebtedness (and with 
respect to any closed-end fund or business development company, 
involuntary liquidation preference) with respect to any other senior 
securities transaction entered into by the fund pursuant to section 18 
or 61 of the Act without regard to the exemption provided by the 
proposed rule.\194\ As explained below, these aspects of the exposure 
calculation are designed to require a fund that enters into derivatives 
transactions in reliance on the exemption provided by the proposed rule 
to include in its aggregate exposure all of the fund's indebtedness or 
exposure obtained through senior securities transactions.
---------------------------------------------------------------------------

    \193\ Proposed rule 18f-4(c)(3)(ii).
    \194\ Proposed rule 18f-4(c)(3)(iii). This could include, for 
example, bank borrowings and, for a closed-end fund or BDC, the 
issuance of debt or preferred shares. Section 18(g) of the Act 
excludes from the definition of senior security ``any such 
promissory note or other evidence of indebtedness in any case where 
such a loan is for temporary purposes only and in an amount not 
exceeding 5 per centum of the value of the total assets of the 
issuer at the time when the loan is made.'' Such borrowings that 
meet the requirements of the exclusion for temporary borrowings 
under section 18(g) would not be considered senior securities 
transactions for purposes of the proposed rule, and thus would not 
be included in the proposed rule's exposure calculations.
---------------------------------------------------------------------------

    Under the proposed rule, a fund would be required to include its 
exposure under these types of transactions in determining its 
compliance with the 150% exposure limit because, although we have 
determined to propose an exemption from the requirements of section 18 
and 61 to permit funds to enter into derivatives and financial 
commitment transactions, we believe that, in order to address the 
investor protection purposes and concerns underlying section 18, a fund 
relying on the exemption should be subject to an overall limit on 
leverage. As discussed in more detail below in section III.B.1.b.2, we 
have proposed to set this limit at 150% of net assets (and at 300% of 
net assets for a fund operating under the risk-based portfolio limit) 
because we believe that is an appropriate limit on a fund's exposure 
from derivatives, financial commitment transactions, and other senior 
securities transactions.
    If the proposed rule did not require exposure from all senior 
securities transactions to be included for purposes of calculating a 
fund's exposure, a fund relying on the exemption the rule would provide 
could obtain aggregate exposure in excess of the proposed rule's 
exposure limits. For example, a fund having net assets of $100 that 
complies with the exposure-based portfolio limit might otherwise, in 
theory, obtain $150 of leveraged exposure through

[[Page 80907]]

derivatives plus additional leverage in the form of financial 
commitment transactions and other borrowings. We have determined to 
address this concern by requiring a fund to include exposure from all 
senior securities transactions, but subject to a 150% limit, rather 
than proposing a substantially lower limit that might be appropriate if 
the exposure calculation were based solely on derivatives exposure.
    We request comment on all aspects of the exposure determinations 
for derivatives transactions.
     Is the proposed rule's use of notional amounts as the 
basis for calculating a fund's exposure under a derivatives transaction 
appropriate? Does the notional amount of a derivatives transaction 
generally serve as an appropriate means of measuring a fund's exposure 
to the applicable reference asset or metric? Are there particular types 
of derivatives transactions or reference assets for which the notional 
amount would or would not be effective in this regard? For such 
derivatives, what alternative measures might be used and why would they 
be more appropriate? Would such alternative measures be easier for 
funds and compliance staff to administer?
     For derivatives transactions that provide a return based 
on the leveraged performance of an underlying reference asset, the rule 
would require the notional amount to be multiplied by the applicable 
leverage factor. Do commenters agree that this is appropriate?
     The proposed rule includes a ``look-through'' for 
calculating the notional amount in respect of derivatives transactions 
for which the underlying reference asset is a managed account or entity 
formed or operated primarily for the purpose of investing in or trading 
derivatives transactions, or an index that reflects the performance of 
such a managed account or entity. Do commenters agree that this is 
appropriate? Is this requirement sufficiently clear? Would the look-
through provision capture swaps or other derivatives on reference 
entities or assets that should not be covered by this provision? Why or 
why not? Would a fund that uses these types of transactions be able to 
obtain information from its counterparty regarding the fund's pro rata 
portion of the notional amounts of the derivatives transactions of the 
underlying reference vehicle, in order for the fund to be able to 
determine its compliance with the exposure limitations under the 
proposed rule? Why or why not? Would funds that currently use these 
transactions find it necessary to amend their existing contracts with 
counterparties in order to obtain such information? Are there other 
ways we should consider addressing the concern, noted above, that 
absent a look-through to the derivatives transactions of the underlying 
reference vehicle, such structures could be used to avoid the exposure 
limitations that would be applicable under the proposed rule if the 
fund directly owned the managed account or securities issued by the 
reference entity? We understand that the accounts or entities that 
serve as the reference assets for these transactions generally are 
actively managed, such that the notional amounts of the derivatives 
transactions of such accounts or entities may change frequently. In 
light of this, and given the concern that the look-through requirement 
seeks to address, should the proposed rule also require a fund to 
determine its compliance with the exposure limitations of the rule 
whenever the notional amount of the fund's pro rata portion of the 
notional amounts of the derivatives transactions of the underlying 
reference vehicle changes? Why or why not?
     To what extent do funds enter into derivatives 
transactions for which pooled investment vehicles (e.g., hedge funds or 
other registered funds, such as ETFs and mutual funds) serve as 
reference assets? For what purposes do funds enter into such 
derivatives transactions? To what extent do the referenced pooled 
investment vehicles themselves use derivatives, such that funds could 
use derivatives for which a pooled investment vehicle serves as a 
reference asset in order to obtain leverage in excess of the limits 
provided under the proposed rule? Would a fund that uses these types of 
derivatives transactions be able to obtain information from the 
underlying pooled investment vehicle regarding the notional amounts of 
the underlying pooled investment vehicle's derivatives transactions, in 
order for the fund to be able to determine its compliance with the 
exposure limitations under the proposed rule's look-through 
requirement? Why or why not? Should we specify standards for 
determining whether a pooled investment vehicle should be considered 
formed or operated primarily for the purpose of investing in or trading 
derivatives? What would be an appropriate standard?
     Do commenters agree with the proposed definition of 
``complex derivatives transaction''? Are there derivatives transactions 
that may be considered complex derivatives transactions under the 
proposed definition but should not be, or vice versa? Does the method 
for calculating exposure for complex derivatives transactions create 
the potential for transactions to be structured to avoid this aspect of 
the rule? If so, how might that be avoided (e.g., by modifying the 
definition or through other means)?
     The proposed rule would require a fund to calculate the 
notional amount for a complex derivatives transaction by using the 
notional amount(s) of one or more instruments, excluding other complex 
derivatives transactions (collectively, ``substituted instruments,'' as 
noted above), that could reasonably be expected to offset substantially 
all of the market risk of the complex derivatives transaction Do 
commenters agree with this method for calculating exposure in respect 
of complex derivatives transactions? Should the rule specify a 
particular test or tests that a fund could elect to use, or be required 
to use, in order to establish that the notional amount it uses for a 
complex derivatives transaction meets this requirement? For example, 
should the rule provide that a group of substituted instruments will be 
deemed to reasonably be expected to offset substantially all of the 
market risk associated with a complex derivatives transaction if the 
fund can demonstrate, using a VaR model that meets the requirements of 
paragraph (c)(11)(ii) \195\ of the proposed rule, that the combined VaR 
of the substituted instruments and the complex derivatives transaction 
is less than 1%, or some other percentage, of the VaR of the complex 
derivatives transaction by itself (in other words, if a complex 
derivative had a VaR of $100 but the combined VaR of the complex 
derivatives transaction and the substituted instruments were less than 
$1, the substituted instruments would be deemed to have offset 
substantially all of the market risk associated with the complex 
derivative)? What other approaches might a fund use?
---------------------------------------------------------------------------

    \195\ See infra section III.B.2.b.
---------------------------------------------------------------------------

     Are there complex derivatives transactions for which 
substantially all of the market risk cannot be offset using substituted 
instruments, and for which the fund would not be able to determine a 
notional amount under the proposed rule? What kinds of transactions, 
and do funds use such transactions? To the extent there are complex 
derivatives transactions for which a fund would not be able to offset 
substantially all of the market risks using substituted instruments, 
would the fund's inability to offset substantially all of the market 
risks using substituted instruments indicate that the fund would be 
unable

[[Page 80908]]

effectively to determine the degree of market risk inherent in the 
transaction? Would such transactions pose greater risks for funds 
because, for example, they are less liquid or more likely to expose 
funds to potential losses that may be difficult to quantify?
     We note that, under the CESR Global Guidelines, if the 
exposure for a non-standard derivative cannot be determined based on 
the market value of an equivalent position in underlying reference 
assets and such derivatives represent more than a negligible portion of 
the UCITS portfolio, a UCITS fund cannot use the commitment 
approach.\196\ Should the proposed rule similarly restrict a fund's 
ability to use these kinds of transactions? Should the proposed rule 
prohibit a fund from using such transactions? If not, should the 
proposed rule provide an alternative method for determining the 
notional amount for a complex derivative for which substantially all of 
the market risk cannot be offset using substituted instruments? What 
method?
---------------------------------------------------------------------------

    \196\ See CESR Global Guidelines, supra note 162, at 7, 12.
---------------------------------------------------------------------------

     Is the netting provision for calculating a fund's exposure 
appropriate? Are there other circumstances under which netting should 
be permitted? Are there transactions that the provision would permit to 
be netted but should not be?
     Are there other adjustments pertaining to the use of 
notional amounts for purposes of determining a fund's exposure 
appropriate that we should consider, either with respect to certain 
types of derivatives transactions or in general? For example, we 
understand that the notional amounts for Euribor and Eurodollar futures 
are often referenced by market participants by dividing the amount of 
the contract by four in order to reflect the three-month length of the 
interest rate transaction, and our staff took this approach in 
evaluating funds' notional exposures, as discussed in the DERA White 
Paper. For these very short-term derivatives transactions, calculating 
notional amounts without dividing by four would reflect a notional 
amount that could be viewed as overstating the magnitude of the fund's 
investment exposure. Should the proposed rule permit or require this 
practice? Why or why not? Would a derivative's notional amount adjusted 
in this way serve as a better measure of the fund's exposure than the 
derivative's unadjusted notional amount? Are there other futures 
contracts (or other standardized derivatives) for which an analogous 
adjustment should be permitted? Why or why not?
     Should we consider permitting or requiring that the 
notional amounts for interest rate futures and swaps be adjusted so 
that they are calculated in terms of 10-year bond equivalents or make 
other duration adjustments to reflect the average duration of a fund 
that invests primarily in debt securities? Would this result in a 
better assessment of a fund's exposure to interest rate risk? Why or 
why not?
     Could derivatives transactions be restructured so that 
they provide a level of exposure to an underlying reference asset or 
metric that exceeds the notional amount as defined in our proposed 
rule, while nonetheless complying with the rule's conditions? If so, 
what modifications should we make to address this?
     Should the calculation of exposure be broadened to include 
not only derivatives that involve the issuance of senior securities 
(because they involve a payment obligation) but also derivatives that 
would not generally be considered to involve senior securities, such as 
purchased options, structured notes, or other derivatives that provide 
economic leverage, given that such instruments can increase the 
volatility of a fund's portfolio and thus cause an investment in a fund 
to be more speculative than if the fund's portfolio did not include 
such instruments?
     Should the proposed rule require a fund to include the 
exposure associated with certain so-called ``basket option'' 
transactions, which are derivatives instruments that may nominally be 
documented in the form of an option contract but are economically 
similar to a swap transaction? We understand that these types of basket 
option transactions often involve a deposit by an investor of a cash 
``premium'' that functions as collateral for the transaction, and all 
or a portion of which may be returned to the investor depending on the 
performance of the basket of reference assets.\197\ Should we require a 
fund to include the exposure associated with these transactions because 
they operate in a manner similar to swap transactions and differ 
significantly from the typical purchased option contract with a non-
refundable premium payment? \198\
---------------------------------------------------------------------------

    \197\ See Abuse of Structured Financial Products: Misusing 
Basket Options to Avoid Taxes and Leverage Limits, Report of the 
Permanent Subcommittee on Investigations, United States Senate (July 
22, 2014), at p. 79 (``The hedge funds told the Subcommittee that, 
rather than tax, a major motivating factor behind their 
participation in the basket options was the opportunity to obtain 
high levels of leverage, beyond the federal leverage limit of 2:1 
normally applicable to [regulatory margin requirements for] 
brokerage accounts, an assertion supported by the banks.'').
    \198\ These basket options, which typically have a strike price 
that is in-the-money at inception (reflecting the value of the 
initial premium payment) together with provisions that require the 
delivery of additional premium amounts or termination if the 
reference basket declines in value, thus function in a manner very 
similar to a swap that requires the delivery of collateral at 
inception and can be terminated if additional collateral is not 
delivered if the reference basket under the swap declines in value.
---------------------------------------------------------------------------

     Do commenters agree that it is appropriate to include 
exposure associated with a fund's financial commitment transactions and 
other senior securities transactions in the calculation of the fund's 
exposure for purposes of the 150% exposure limit in the exposure-based 
portfolio limit (and the 300% limit under the risk-based portfolio 
limit), as proposed, so that the exposure limit would include the 
fund's exposure from all senior securities transactions? Should we, 
instead, include only exposure associated with a fund's derivatives 
transactions but reduce the exposure limits so that a fund that would 
rely on the exemption provided by the proposed rule would be subject to 
a limit on leverage or potential leverage from all senior securities 
transactions? If we were to take this approach should we, for example, 
reduce the exposure limits to 50% in the case of the exposure-based 
portfolio limit and 100% in the case of the risk-based limit?
c. 150% Exposure Limit
    As noted above, a fund that elects to comply with the exposure-
based portfolio limit under the proposed rule would be required to 
limit its derivatives transactions, financial commitment transactions 
and obligations under other senior securities transactions, such that 
the fund's aggregate exposure under these transactions, immediately 
after entering into any senior securities transaction, does not exceed 
150% of the fund's net assets.\199\
---------------------------------------------------------------------------

    \199\ Proposed rule 18f-4(a)(1)(i).
---------------------------------------------------------------------------

    The exposure-based portfolio limit is designed to impose a limit on 
the amount of leverage a fund may obtain through senior securities 
transactions while also providing flexibility for funds to use 
derivatives transactions for a variety of purposes.\200\ As discussed 
above, and as noted by several commenters to the Concept Release, many 
derivatives transactions result in investment exposures that are 
economically similar to direct

[[Page 80909]]

investments in the underlying reference assets financed through 
borrowings. According to one commenter, for example, an equity total 
return swap ``produces an exposure and economic return substantially 
equal to the exposure and economic return a fund could achieve by 
borrowing money from the counterparty in order to purchase the equities 
that are reference assets.'' \201\ Because derivatives transactions can 
readily be used for leveraging purposes, we believe that limiting the 
aggregate notional amount of a fund's derivatives transactions (subject 
to certain adjustments under the proposed rule) can appropriately serve 
to limit the amount of leverage the fund could potentially obtain 
through such transactions. We also believe that an exposure limitation 
based, in part, on the aggregate notional amount of a fund's 
derivatives transactions should be set at an appropriate amount that 
reflects the various ways in which funds may use derivatives, while 
also imposing a limit on the amount of leverage a fund may obtain 
through derivatives transactions (and other senior securities 
transactions), consistent with the investor protection purposes and 
concerns underlying section 18.
---------------------------------------------------------------------------

    \200\ The proposed rule's portfolio limitations, although 
designed to impose a limit on leverage, also could help to address 
concerns about a fund's ability to meet its obligations. See supra 
note 152.
    \201\ See Comment Letter of BlackRock on the FSOC Request for 
Comment (Mar. 25, 2015) (FSOC 2014-0001) (``BlackRock FSOC Comment 
Letter''), available at http://www.blackrock.com/corporate/en-us/literature/publication/fsoc-request-for-comment-asset-management-032515.pdf, at 8 (``[D]erivatives can be used to lever a portfolio, 
in essence creating additional economic exposure.'') See also 
BlackRock Concept Release Comment Letter, at 4 (noting that in 
circumstances where a derivative is effectively substituting for one 
or more `long' physical security positions, ``the full notional 
amount of the reference asset is at risk to the same extent as the 
principal amount of a physical holding, and any difference between 
the amount invested by the fund and the notional amount of the 
derivative is equivalent to a `borrowing'.''). See also Keen Concept 
Release Comment Letter, at 8 (noting that, except with respect to 
hedging transactions, ``the notional amount of swaps should be 
treated as creating investment leverage and subject to any asset 
coverage requirement the Commission imposes on the issuance of 
senior securities by investment companies''). See also Morningstar 
Concept Release Comment Letter, at 2 (noting that, by using futures, 
a fund may only need $5 of initial margin to obtain $100 worth of 
notional exposure to the S&P 500 and that such position may 
represent ``effectively a 100% equity investment'').
---------------------------------------------------------------------------

    In determining to propose a 150% exposure limitation, we evaluated 
a range of considerations. First, we considered the extent to which a 
fund could borrow in compliance with the requirements of section 18. As 
discussed in more detail in section II, funds generally can incur 
indebtedness through senior securities under section 18 subject to the 
asset coverage requirement specified in that section, which effectively 
permits a fund to incur indebtedness of up to 50% of the fund's net 
assets.\202\ For example, a mutual fund with $100 in assets and with no 
liabilities or senior securities outstanding could borrow an additional 
$50 from a bank. We therefore considered whether it would be 
appropriate to propose a 50% exposure limitation under the proposed 
rule, in order to limit a fund's derivatives exposure to the same 
extent as section 18 limits a fund's ability to borrow from a bank (or 
issue other senior securities representing indebtedness subject to 
section 18's 300% asset coverage requirement).\203\ We also considered 
an exposure limitation of 100% of net assets, which would more closely 
track the level of exposure suggested by Release 10666 for the trading 
practices described in that release.\204\
---------------------------------------------------------------------------

    \202\ See supra note 34.
    \203\ We note that, at this level of exposure limitation, the 
corresponding limitation on BDCs could be set at 100% of net assets 
to reflect the increased borrowing capacity that Congress has 
permitted BDCs to obtain under section 61 of the Act.
    \204\ One of the commenters to the Concept Release indicated 
that this level of exposure would be the effective limit under 
Release 10666 ``[a]s originally conceived by the Commission,'' 
explaining that, ``[a]s a practical matter, requiring the 
segregation of assets but not limiting the permitted segregation to 
cash equivalents effectively permitted funds to incur investment 
leverage up to a theoretical limit equal to 100% of a fund's net 
assets.'' See Ropes & Gray Concept Release Comment Letter.
---------------------------------------------------------------------------

    We have not proposed these lower exposure limits of 50% or 100% of 
net assets primarily due to our consideration of the point made by 
numerous commenters that funds use derivatives for a range of purposes 
that may not, or may not be expected to, result in additional leverage 
for the fund.\205\ Commenters have noted that many funds use 
derivatives for hedging or risk-mitigation, or choose to use 
derivatives for reasons other than specifically to obtain 
leverage.\206\ Thus, although a lower exposure limit, like the 100% 
limitation suggested by Release 10666, may be appropriate for the 
trading practices described in that release, that exposure limit may 
not be appropriate when applied to derivatives' notional exposure. Such 
a lower exposure limit, as well as the 50% limitation we considered, 
could limit a fund's ability to use derivatives transactions for 
purposes other than leveraging the fund's portfolio that may be 
beneficial to the fund and its investors.\207\
---------------------------------------------------------------------------

    \205\ See, e.g., infra note 248 and accompanying text. See also 
BlackRock FSOC Comment Letter, at 8 (noting that in certain cases 
``derivatives are used to hedge (mitigate) risks and thus do not 
result in the creation of leverage and, in fact may specifically 
reduce economic leverage.); BlackRock Concept Release Comment 
Letter, at 4-5 (noting that ``in the context of an overall 
portfolio, a derivative holding may increase overall leverage, 
decrease overall leverage or have no effect on overall leverage'') 
(internal footnotes omitted).
    \206\ In determining an appropriate exposure limit, we have also 
considered that, as noted below in section III.B.1.d, derivatives 
transactions that are intended to hedge or mitigate risks may not be 
effective, particularly in stressed market conditions.
    \207\ We also note that the payment obligations and potential 
payment obligations associated with derivatives transactions differ 
in certain respects from the payment obligations under borrowings 
permitted under section 18, including in that the fund's payment 
obligations under a derivatives transaction would vary depending on 
changes in market prices, volatility, and other market events 
related to the derivatives transaction's reference asset. See also 
sections III.E and IV.E.
---------------------------------------------------------------------------

    As described in greater detail below in section III.B.1.d, we 
considered whether to reflect the different ways in which funds might 
use derivatives by excluding from that calculation any exposure 
associated with derivatives transactions that may arguably be used to 
hedge or cover other transactions. This would be similar to the 
guidelines that apply to UCITS funds, which generally are subject to an 
exposure limit of 100% of net assets, but are not required to include 
exposure relating to certain hedging transactions. For the reasons 
discussed in section III.B.1.d, however, we have determined not to 
propose to permit a fund to reduce its exposure for purposes of the 
rule's portfolio limitations for particular derivatives transactions 
that may be entered into for hedging (or risk-mitigating) purposes or 
that may be ``cover transactions.'' As discussed in more detail in that 
section of this Release, we believe it would be difficult to develop a 
suitably objective standard for these transactions, and that confirming 
compliance with any such standard would be difficult, both for fund 
compliance personnel and for our staff. In addition, many hedges are 
imperfect, making it difficult to distinguish purported hedges from 
leveraged or speculative exposures or to provide criteria for this 
purpose in the proposed rule that would be appropriate for the 
diversity of funds subject to the proposed rule and the diversity of 
strategies and derivatives they use or may use in the future.
    In addition to these considerations, we also note that, as 
discussed in section III.B.1.b.i, while an exposure-based test based on 
notional amounts could be viewed as a relatively blunt measurement, we 
believe that, on balance, a notional amount limitation would be more 
administrable, and thus more effective, as a means of limiting 
potential leverage from derivatives for purposes of the proposed rule 
than a limitation which seeks to define, and

[[Page 80910]]

rely on, more precise measurements of leverage. We note that setting 
the exposure limitation at 150%, as proposed, would allow the fund to 
use derivatives transactions to obtain a level of indirect market 
exposure solely through derivatives transactions that could approximate 
the level of market exposure that would be possible through securities 
investments augmented by borrowings as permitted under section 18.\208\
---------------------------------------------------------------------------

    \208\ For example, for a fund that determines to use derivatives 
as an alternative to investments in securities, this proposed 
exposure-based limit would permit a fund with $100 in assets and 
with no liabilities or senior securities to obtain market exposure 
through a derivatives transaction with a notional amount of up to 
150% of the fund's net assets, with the fund's non-derivatives 
assets invested in cash and cash equivalents. This would match the 
degree of market exposure the fund could obtain by borrowing up to 
$50 from a bank as permitted under section 18 and investing the 
fund's $150 in total assets in securities.
---------------------------------------------------------------------------

    We also considered whether higher exposure limitations might be 
appropriate, such as exposure levels ranging from 200% to 250% of net 
assets. We are concerned, however, that exposure levels in excess of 
150% of net assets, if not tempered by the risk mitigating aspects of 
the VaR test as we have proposed under the risk-based limit, could be 
used to take on additional speculative investment exposures that go 
beyond what would be expected to allow for hedging arrangements, and 
thus could implicate the undue speculation and asset sufficiency 
concerns expressed in sections 1(b)(7) and 1(b)(8) of the Act.
    Second, we considered the extent to which different exposure limits 
would affect funds' ability to pursue their strategies. In this regard 
we considered the extent to which different potential exposure 
limitations would affect funds and their investors, as well as section 
18's strict limitations on senior securities transactions and the 
concerns we discuss above regarding funds' ability to obtain leverage 
through derivatives and other senior securities transactions. We also 
considered the extent to which different types of funds, and funds 
collectively, use senior securities transactions today. Given that, as 
discussed below, most funds use relatively low notional amounts of 
derivatives transactions (or do not use any derivatives), we have 
proposed an exposure limitation at a level that we believe would 
appropriately constrain funds that use derivatives to obtain highly 
leveraged exposures.
    Third, we recognize and have considered that funds using any 
derivatives transactions can experience derivatives-related losses, 
including funds with exposures below the limits we are proposing today 
as well as the other limits that we discuss above. In this regard, we 
recognize that the information available in the administrative orders 
described in section II.D.1.d indicates that some of the losses 
described as resulting from derivatives in those matters occurred at 
exposure levels below the exposure limits that we are proposing 
today.\209\ The proposed rule's exposure limits are not designed to 
prevent all derivatives-related losses, however. Importantly, the 
exposure limits would be complemented by the rule's asset segregation 
requirements, which would apply to all funds that engage in derivatives 
transactions in reliance on the rule, and the proposed rule's risk 
management requirements, which would apply to funds that have 
derivatives exposure exceeding a lower threshold of 50% of net assets 
or that use complex derivatives transactions.
---------------------------------------------------------------------------

    \209\ See supra notes 123-124 and 126.
---------------------------------------------------------------------------

    Based on these considerations, we have determined to propose an 
exposure-based portfolio limit set at 150% of net assets, rather than a 
lower limit, including the 50% and 100% limits discussed above. We 
believe that a 150% exposure limit would account for the variety of 
purposes for which funds may use derivatives, including to hedge risks 
in the fund's portfolio and to make investments where derivatives may 
be a more efficient means to obtain exposure. As discussed in more 
detail below, we have determined not to permit funds to reduce their 
exposure for potentially hedging or cover transactions and, instead, 
have proposed an exposure limit that we believe would be high enough to 
provide funds sufficient flexibility to engage in these kinds of 
transactions.
    We also believe that a 150% exposure limitation would appropriately 
balance the proposed rule's effects on funds and their investors, on 
the one hand, with concerns related to funds' ability to obtain 
leverage through derivatives and other senior securities transactions, 
on the other. We understand based on the DERA analysis that, although 
most funds would be able to comply with an exposure-based portfolio 
limit of 150% of net assets, the limit would constrain the use of 
derivatives by the small percentage of funds that use derivatives to a 
much greater extent than funds generally. The analysis also indicates 
that funds and their advisers generally would be able to continue to 
operate and to pursue a variety of investment strategies, including 
alternative strategies.\210\
---------------------------------------------------------------------------

    \210\ See infra note 211.
---------------------------------------------------------------------------

    As discussed in more detail in the DERA White Paper, DERA staff 
reviewed the portfolio holdings of a random sample of mutual funds 
(including a separate category of alternative strategy funds, which 
includes index-based alternative strategy funds \211\), closed-end 
funds, BDCs, and ETFs. DERA staff randomly selected 10% of the funds 
from each of these categories and reviewed the funds' schedule of 
investments included in their most recently filed annual reports to 
identify the fund's derivatives transactions, financial commitment 
transactions, and other senior securities transactions. DERA staff then 
calculated the funds' exposures under these transactions, using the 
notional amounts to calculate the funds' derivatives exposures and the 
amounts of the funds' obligations and contingent obligations under 
financial commitment transactions and other senior securities 
transactions, and compared the funds' aggregate exposures to the funds' 
reported net assets. Although we recognize that the review by DERA 
staff evaluated funds' investments as reported in the funds' then-most 
recent annual reports, DERA staff is not aware of any information that 
would provide any different data analysis of the current use of senior 
securities transactions by registered funds and business development 
companies.\212\
---------------------------------------------------------------------------

    \211\ See supra note 87 (describing the funds included as 
alternative strategy funds as part of the staff's review).
    \212\ We understand that, in stable environments, samples 
including longer periods of time are preferable because their larger 
sample sizes offer greater precision in estimating a given relation 
or characteristic. DERA staff analysis shows, however, that funds 
that make the greatest use of derivatives have received 
disproportionately large net inflows since the end of 2010. 
Extending DERA's sample back in time thus would tend to include data 
in the sample that is no longer consistent with industry practice 
with respect to derivatives usage as it exists today.
---------------------------------------------------------------------------

    This analysis showed that, for mutual funds other than alternative 
strategy funds (which we discuss separately below), more than 70% of 
the sampled mutual funds did not identify any derivatives transactions 
in their schedules of investments; about 6% of sampled mutual funds had 
derivatives exposures in excess of 50% of the funds' net assets; and 
about 99% of sampled mutual funds had aggregate exposures that were 
less than 150% of the funds' net assets.\213\ None of the sampled 
closed-end funds had aggregate exposure in excess of 150% of net assets

[[Page 80911]]

(and only about 2% of those funds had aggregate exposures exceeding 
100% of net assets).\214\ None of the sampled BDCs reported any 
derivatives transactions, although some of them did report financial 
commitment transactions (and they also had issued other senior 
securities).\215\ The sampled ETFs included alternative strategy ETFs 
and ETFs pursuing other strategies. Of the non-alternative strategy 
ETFs, only one of the sampled funds had aggregate exposure in excess of 
150% of net assets, and the other sampled non-alternative strategy ETFs 
with relatively higher exposures had exposures of approximately 100% of 
net assets.\216\ With respect to alternative strategy ETFs, the sampled 
funds with the highest exposures were leveraged ETFs; several of these 
funds had aggregate exposure exceeding 150% of net assets, with 
exposure ranging up to approximately 280% of net assets.\217\ Based on 
this analysis we believe that, except for alternative strategy funds 
and certain leveraged ETFs, most funds should be able to comply with a 
150% exposure portfolio limitation without modifying their portfolios.
---------------------------------------------------------------------------

    \213\ DERA White Paper, supra note 73, at Figures 9.5 and 11.5.
    \214\ DERA White Paper, supra note 73, at Figure 9.7.
    \215\ DERA White Paper, supra note 73, at Figures 9.11 and 
11.11.
    \216\ DERA White Paper, supra note 73, at Figures 4.6 and 9.9.
    \217\ DERA White Paper, supra note 73, at Figure 4.5.
---------------------------------------------------------------------------

    The sampled alternative strategy funds in DERA's analysis tended to 
be more significant users of derivatives.\218\ Fifty-two percent of the 
sampled alternative strategy funds had at least 50% notional exposure 
from derivatives, and approximately 73% of these funds had aggregate 
exposure that represented less than 150% of net assets.\219\ The 
approximately 73% of funds with exposure under 150% included at least 
one fund in every Morningstar alternative mutual fund category.\220\ 
The remaining approximately 27% of the sampled alternative strategy 
funds with aggregate exposure of 150% or more pursued a variety of 
strategies including, among others, absolute return, managed futures, 
unconstrained bond, and currency strategies. The funds with the highest 
exposures in the sample generally followed managed futures strategies.
---------------------------------------------------------------------------

    \218\ We refer to alternative strategy funds in the same manner 
as the staff classified ``Alt Strategies'' funds in the DERA White 
Paper, supra note 73, as including the Morningstar categories of 
``alternative,'' ``nontraditional bond'' and ``commodity'' funds.
    \219\ DERA White Paper, supra note 73, at Figures 9.4 and 11.4.
    \220\ Our staff's experience suggests, however, that funds in 
one Morningstar alternative strategy category--Managed Futures--may 
find it difficult to limit their exposures to less than 150%. These 
funds generally obtain their investment exposures through 
derivatives transactions, and thus can be expected to have high 
derivatives exposures relative to net assets. This is consistent 
with DERA's analysis, in which the funds with the highest exposures 
were managed futures funds.
---------------------------------------------------------------------------

    We believe the proposed 150% exposure limitation appropriately 
balances the proposed rule's effects on funds and their investors, on 
the one hand, with the concerns we discuss above concerning funds' 
ability to obtain leverage and incur obligations through derivatives 
transactions (and other senior securities transactions), on the other. 
The information provided in the DERA staff analysis indicates, as 
discussed above, that most funds in the DERA random sample would be 
able to comply with a 150% exposure limit without modifying their 
portfolios. The analysis also indicates that alternative strategy 
funds, the heaviest users of derivatives in the DERA random sample, 
generally would be able to continue to operate and to pursue a variety 
of alternative strategies. As noted above, approximately 73% of the 
sampled alternative strategy funds had less than 150% exposure and 
included funds in every alternative mutual fund category.\221\ The 
majority of the sampled ETFs also had exposures of 150% or less of net 
assets. Our staff's analysis indicates that it should be possible to 
pursue, in some form, almost all existing types of investment 
strategies in compliance with a 150% exposure limitation.\222\
---------------------------------------------------------------------------

    \221\ See supra note 220 regarding funds in the Morningstar 
managed futures category.
    \222\ In this regard we note that our staff has observed that 
derivatives transactions may be used by a fund almost entirely to 
substitute for the purchase of physical securities, with the result 
that different funds may pursue the same strategy with one fund 
doing so primarily through derivatives and the other primarily 
through securities investments. For example, a long/short equity 
fund that engages in cash transactions could purchase long 
investment securities and borrow securities in connection with its 
short sale transactions. Alternatively, the long/short equity fund 
might invest primarily in Government securities or other short-term 
investments and pursue its long/short equity strategy solely through 
a few portfolio total return swaps, under which the fund designates 
long and short positions and receives the net performance on these 
reference securities in substantially the same manner as if the fund 
had invested directly in the reference securities.
---------------------------------------------------------------------------

    We recognize, however, that particular funds, including particular 
alternative strategy funds and certain leveraged ETFs, would need to 
modify their portfolios to reduce their use of derivatives in order to 
comply with a 150% exposure limitation, and that these funds may view 
it to be disadvantageous or less efficient to reduce their use of 
derivatives and the potential returns that they may seek to obtain from 
such derivatives.\223\ On balance, however, we believe a 150% limit 
provides an appropriate amount of flexibility for funds to engage in 
derivatives transactions in reliance on the exemption the proposed rule 
would provide, which otherwise would be prohibited for mutual funds by 
section 18 (and limited for other types of funds).\224\
---------------------------------------------------------------------------

    \223\ We also discuss these and other implications of the 
proposed rule's 150% exposure limitation below in section IV of this 
Release. A fund with exposure in excess of 150% of net assets might 
be able to comply with the risk-based portfolio limit, discussed 
below, which includes an exposure limit of 300% of net assets. We 
note, however, that a fund that holds only cash and cash equivalents 
and derivatives--like certain alternative strategy funds and 
leveraged ETFs--would not be able to satisfy the VaR test because, 
in this case, the fund's derivatives, in aggregate, generally would 
add, rather than reduce, the fund's exposure to market risk and thus 
generally would not result in a full portfolio VaR that is lower 
than the fund's securities VaR, as required under the VaR test. See 
infra note 314 and accompanying text.
    \224\ In this regard we also note that, as discussed above, the 
DERA staff analysis shows that approximately 73% of the sampled 
alternative strategy funds, which are as a group more substantial 
users of derivatives, had less than 150% exposure. Only those funds 
that used derivatives to a much greater extent than funds generally, 
including a limited percentage of alternative strategy funds, had 
exposures in excess of 150% of net assets.
---------------------------------------------------------------------------

    We believe it is appropriate, and consistent with the investor 
protection concerns underlying section 18, for funds that engage in 
derivatives securities transactions in reliance on the exemption that 
would be provided by proposed rule 18f-4 to be subject to an exposure 
limit, given that exposures resulting from borrowings and other senior 
securities are also subject to a limit under section 18. Funds with 
exposure in excess of the proposed 150% limit thus would have to reduce 
their exposure in order to rely on the rule. We recognize that a very 
small percentage of funds may find it difficult to modify their 
portfolios in order to comply with the proposed 150% exposure limit 
while pursuing their current strategies.
    Some managed futures funds and currency funds, for example, pursue 
their strategies almost exclusively through derivatives transactions, 
with the funds' assets generally consisting of cash and cash 
equivalents. For example, four funds in DERA's sample had exposures in 
excess of 500% of net assets, and three of them were managed futures 
funds, with exposures ranging up to approximately 950% of net assets. 
These funds may find it impractical to reduce their exposures below the

[[Page 80912]]

proposed limit of 150%.\225\ As we discussed above in section II.D.1 of 
this Release, however, funds with derivatives notional exposures of 
almost ten times net assets and having the potential for additional 
exposures do not appear to be subject to a practical limit on leverage 
as we contemplated in Release 10666.
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    \225\ We note that managed futures funds account for 
approximately 3% of alternative mutual fund assets under management, 
and 0.09% of mutual fund assets under management. We thus expect 
that, although the proposed rule would have a greater effect on 
managed futures funds than most other types of funds, the effect 
would be small relative to alternative fund assets under management, 
and especially small relative to overall mutual fund assets under 
management.
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    Certain ETFs and mutual funds expressly use derivatives to achieve 
performance results, over a specified period of time, that are a 
multiple of or inverse multiple of the performance of an index or 
benchmark. Certain of these funds have derivatives exposures exceeding 
150% of net assets (e.g., a fund that seeks to deliver two or three 
times the inverse of a benchmark and achieves this exposure through 
derivatives transactions), as reflected in the DERA sample and noted 
above. These funds are sometimes referred to as trading tools because 
they seek to provide a specific level of leveraged exposure to a market 
index over a fixed period of time (e.g., a single trading day).
    Initially only certain mutual funds pursued these strategies. 
Today, most of these funds are ETFs operating pursuant to exemptive 
orders granted by the Commission that provide relief from certain 
provisions of the Act other than section 18.\226\ The first exemptive 
order that contemplated leveraged ETFs, which was issued by the 
Commission in 2006,\227\ stated that the applicants intended to operate 
ETFs that would seek investment results of 125%, 150%, or 200% of the 
return of the underlying securities index on a daily basis (or an 
inverse return of 100%, 125%, 150%, or 200% of such index on a daily 
basis).\228\ Subsequent orders were issued for two other ETF sponsors 
seeking to launch and operate leveraged ETFs, some of which involved 
higher amounts of leverage.\229\ No exemptive orders for leveraged ETFs 
have been issued since 2009.
---------------------------------------------------------------------------

    \226\ The applicants did not seek, and their orders do not 
provide, any exemption from the requirements of section 18. The 
proposed rule, if adopted, would prohibit funds, including leveraged 
ETFs, from obtaining exposure in excess of the proposed rule's 
exposure limits.
    \227\ ProShares Trust, et al., Investment Company Release Nos. 
27323 (May 18, 2006) (notice) and 27394 (June 13, 2006) (order).
    \228\ In this Release we generally refer to ETFs that seek to 
achieve performance results, over a specified period of time, that 
are a multiple of or inverse multiple of the performance of an index 
or benchmark collectively as ``leveraged ETFs.''
    \229\ Rydex ETF Trust, et al., Investment Company Release Nos. 
27703 (Feb. 20, 2007) (notice) and 27754 (Mar. 20, 2007) (order); 
Rafferty Asset Management, LLC, et al., Investment Company Release 
Nos. 28379 (Sept. 12, 2008) (notice) and 28434 (Oct. 6, 2008) 
(order). See also ProShares Trust, et al., Investment Company 
Release Nos. Investment Company Release Nos. 28696 (Apr. 14, 2009) 
(notice) and 28724 (May 12, 2009) (order) (amending the applicant's 
prior order); Rafferty Asset Management, LLC, et al., Investment 
Company Release Nos. 28889 (Aug. 27, 2009) (notice) and 28905 (Sept. 
22, 2009) (order) (amending the applicant's prior order). These 
orders (as amended) relate to leveraged ETFs that seek investment 
results of up to 300% of the return (or inverse of the return) of 
the underlying index.
---------------------------------------------------------------------------

    The Commission and the staff have continued to consider funds' use 
of derivatives, including the use of derivatives by ETFs and leveraged 
ETFs. In August 2009, the staff of our Office of Investor Education and 
Advocacy and FINRA jointly issued an Investor Alert regarding leveraged 
ETFs, expressing certain concerns regarding such ETFs.\230\ In March 
2010, we issued a press release announcing that the staff was 
conducting a review to evaluate the use of derivatives by registered 
investment companies, including ETFs, and we indicated that, pending 
completion of this review, the staff would defer consideration of 
exemptive requests under the Act relating to ETFs that would make 
significant investments in derivatives.\231\ Although the staff is no 
longer deferring consideration of exemptive requests under the Act 
relating to all actively-managed ETFs that make use of 
derivatives,\232\ the staff continues not to support new exemptive 
relief for leveraged ETFs.
---------------------------------------------------------------------------

    \230\ Investor Alert and Bulletins, Leveraged and Inverse ETFs: 
Specialized Products with Extra Risks for Buy-and-Hold Investors 
(Aug. 18, 2009), available at http://www.sec.gov/investor/pubs/leveragedetfs-alert.htm. FINRA also has sanctioned a number of 
brokerage firms for making unsuitable sales of leveraged and inverse 
ETFs. See, e.g., FINRA News Release, FINRA Orders Stifel, Nicolaus 
and Century Securities to Pay Fines and Restitution Totaling More 
Than $1 Million for Unsuitable Sales of Leveraged and Inverse ETFs, 
and Related Supervisory Deficiencies (Jan. 9, 2014), available at 
https://www.finra.org/newsroom/2014/finra-orders-stifel-nicolaus-and-century-securities-pay-fines-and-restitution-totaling; see also 
FINRA News Release, FINRA Sanctions Four Firms $9.1 Million for 
Sales of Leveraged and Inverse Exchange-Traded Funds (May 1, 2012), 
available at https://www.finra.org/newsroom/2012/finra-sanctions-four-firms-91-million-sales-leveraged-and-inverse-exchange-traded. 
Following losses incurred by certain ETF investors during 2008-2009, 
a lawsuit was brought against one of the sponsors of leveraged ETFs 
alleging that the funds' registration statements contained material 
misstatements or omissions. The Circuit Court of Appeals for the 
Second Circuit affirmed the district court's dismissal of the 
plaintiffs' claims. In affirming, the court noted, among other 
things, that, as a disclosure matter, ``[a]ll the ProShares I 
prospectuses make clear that ETFs used aggressive financial 
instruments and investment techniques that exposed the ETFs to 
potentially `dramatic' losses `in the value of its portfolio 
holdings and imperfect correlation to the index underlying.' '' In 
re ProShares Trust Securities Litigation, 728 F.3d 96 (2d Cir. 2013) 
(internal citations omitted).
    \231\ See SEC Press Release 2010-45, SEC Staff Evaluating the 
Use of Derivatives by Funds (Mar. 25, 2010), available at http://www.sec.gov/news/press/2010/2010-45.htm.
    \232\ See Derivatives Use by Actively-Managed ETFs (Dec. 6, 
2012), available at http://www.sec.gov/divisions/investment/noaction/2012/moratorium-lift-120612-etf.pdf (announcing that the 
staff will no longer defer consideration of exemptive requests under 
the Act relating to actively-managed ETFs that make use of 
derivatives provided that they include representations to address 
some of the concerns expressed in the March 2010 press release).
---------------------------------------------------------------------------

    Funds that do not wish to rely on the proposed rule may wish to 
consider deregistering under the Investment Company Act, with the 
fund's sponsor offering the fund's strategy as a private fund or as a 
public (or private) commodity pool, which do not have statutory 
limitations on the use of leverage.\233\ These alternative fund 
structures would be marketed to a more targeted investor base (i.e., 
those with higher incomes or net worth, in the case of private funds, 
and those familiar with commodity pool investment partnerships, in the 
case of public commodity pools) and would not be expected by their 
investors to have the protections provided by the Investment Company 
Act. We also note that our staff has observed that certain of these 
highly leveraged funds (e.g., managed futures funds) often do not make 
significant investments in securities and the securities investments 
they do make generally do not meaningfully contribute to their returns.
---------------------------------------------------------------------------

    \233\ See section IV below for a discussion of possible effects 
associated with funds' decision to deregister under the Investment 
Company Act and for their sponsors to offer the fund's strategy as 
private funds or commodity pools.
---------------------------------------------------------------------------

    We request comment on all aspects of the proposed exposure-based 
portfolio limit of 150% of a fund's net assets.
     Is 150% an appropriate exposure limit? If not, should it 
be higher or lower, for example 200% or 100%? Does the 150% exposure 
limit, together with the rule's other limitations, achieve an 
appropriate balance between providing flexibility and limiting the 
amount of leverage a fund could obtain (and thus the potential risks 
associated with leverage)? Does the 150% exposure limit effectively 
address the varying ways in which funds use derivatives, including for 
hedging purposes?
     Are certain types of funds likely to use the 150% exposure 
limit exclusively for leveraging purposes? If so, do commenters believe 
that such a level of exposure would be inappropriate? Should any 
concerns about a fund using

[[Page 80913]]

derivatives transactions exclusively for leveraging purposes be 
addressed through a reduced exposure limitation? Conversely, would the 
other conditions and requirements of the rule, including the 
requirement to have a derivatives risk management program meeting 
specified requirements (discussed in section III.D below), address 
concerns regarding the leverage that the fund might be able to obtain 
under the 150% exposure limit, in light of the policy concerns 
underlying section 18 of the Act?
     Do commenters agree that the proposed 150% exposure 
limitation appropriately balances concerns regarding, on the one hand, 
the extent to which the exposure limit would affect funds' investment 
strategies and, on the other hand, section 18's limitations on the 
issuance of senior securities and the concerns we discuss above 
concerning funds' ability to obtain leverage through derivatives 
transactions and other senior securities transactions?
     As discussed above, our staff's analysis indicates that 
certain funds, including certain alternative funds, today have 
exposures exceeding 150% of their net assets. What types of 
modifications would these funds be required to make and how would the 
modifications affect their investors? Would they be able to make such 
modifications? Are there other types of funds that also would expect to 
have exposure exceeding 150%? If so, what kinds of funds and what types 
of modifications would they be required to make and how would the 
modifications affect their investors? What types of costs would funds 
that need to modify their investment strategies in order to comply with 
the 150% limit be likely to incur? Would funds that would be required 
to make modifications to comply with a 150% exposure limit generally be 
able to follow the same investment strategy as they do today after 
making any modifications? How would such modifications likely affect 
such funds?
     What types of funds would be unable to modify their 
investment program in order to comply with the 150% exposure limit? 
Would these funds be likely to continue their investment programs as 
private funds or public (or private) commodity pools? What would be the 
effects, positive and negative, on the funds' investors in these cases?
     The 150% exposure limit (and the 300% exposure limit in 
the risk-based portfolio limit) would apply to all funds without regard 
to the type of fund or the fund's strategy. Are there certain types of 
funds for which a higher or lower exposure limit would be appropriate?
    [cir] Should we consider a higher limit for ETFs (or other funds) 
that seek to replicate the leveraged or inverse performance of an 
index? Would a higher exposure limit be appropriate for these funds 
because they may operate as trading tools that seek to provide a 
specific level of leveraged exposure to a market index over a fixed 
period of time, and because the amount of leverage is an integral part 
of their strategy? Conversely, do those same considerations suggest 
that these funds--which are not restricted to sophisticated investors--
should be subject to the same exposure limitations as other types of 
funds? Some of these funds are ETFs that operate pursuant to exemptive 
orders granted by the Commission. Would it be more appropriate to 
consider these funds' use of derivatives transactions in the exemptive 
application context, based on the funds' particular facts and 
circumstances, rather than in rule 18f-4, which would apply to funds 
generally? Would the exemptive application process be a more 
appropriate way to evaluate these funds in order to consider their use 
of leverage together with other features of these products (such as 
their objective of seeking daily returns) that are not shared by funds 
generally?
    [cir] As discussed in more detail above, some managed futures funds 
and currency funds pursue their strategies almost exclusively through 
derivatives transactions, with the funds' other assets generally 
consisting of cash and cash equivalents. Managed futures and currency 
funds with derivatives exposures substantially in excess of the funds' 
net assets may find it impractical to reduce their exposures below the 
proposed limit of 150%. Do commenters agree that it may be feasible, 
for the reasons discussed above, for funds that do not wish to rely on 
the proposed rule to deregister under the Investment Company Act and 
for the fund's sponsor to offer the fund's strategy as a private fund 
(which can be offered solely to a limited range of investors) or as a 
public or private commodity pool? Are these alternatives, which do not 
have statutory limitations on the use of leverage, feasible vehicles 
for these types of strategies? Conversely, should we permit managed 
futures or currency funds (or other specified fund categories) to 
obtain exposure in excess of 150% of the funds' net assets under the 
exposure-based portfolio limit? If so, what limit and what other 
restrictions or limitations on their use of derivatives would be 
appropriate? Are there ways that we could permit such funds to obtain 
additional exposure while still addressing the undue speculation 
concern expressed in section 1(b)(7) and the asset sufficiency concern 
expressed in section 1(b)(8)? How could we permit such funds to obtain 
additional exposure while also imposing an effective limit on leverage 
and on the speculative nature of such funds?
    [cir] Section 61 permits a BDC to issue senior securities to a 
greater extent than other types of funds in that BDCs are subject to a 
lower asset coverage requirement of 200% (as opposed to the 300% asset 
coverage requirement that applies to other types of funds).\234\ The 
proposed rule would not restrict the ability of a BDC to continue to 
issue senior securities pursuant to section 61 subject to a 200% asset 
coverage requirement. The proposed rule would, however, require a BDC 
that engages in derivatives transactions in reliance on the proposed 
rule to comply with the rule's aggregate exposure limitations, which 
would include exposure associated with senior securities issued by a 
BDC pursuant to section 61 (as well as exposure from financial 
commitment transactions entered into by a BDC pursuant to the proposed 
rule). Should the proposed rule provide BDCs greater exposure limits 
under the rule in recognition of the greater latitude that BDCs have to 
issue senior securities provided by section 61? Would any increase be 
needed given that our staff's review suggests BDCs do not use 
derivatives to any material extent?
---------------------------------------------------------------------------

    \234\ See supra notes 34-36 and accompanying text.
---------------------------------------------------------------------------

    [cir] Are there other types of funds for which, or circumstances 
under which, we should provide higher or lower exposure limits? What 
kinds of funds or circumstances and why? Should we provide for 
differing exposure limits based on characteristics of the fund's 
derivatives? Which characteristics and how should they affect the level 
of exposure the fund should be permitted to obtain?
    [cir] Should we grandfather funds that are operating in excess of 
the proposed rule's portfolio limits as of a specified date? If we were 
to grandfather funds, which funds should we grandfather and why? Should 
we apply any grandfathering to funds that are operating on the date of 
this proposal, for example? Alternatively, should we, for example, 
grandfather leveraged ETFs on the basis that they operate pursuant to 
the terms and conditions of exemptive orders granted by the Commission? 
If we were to grandfather funds, should the grandfathering be subject 
to conditions? Should any

[[Page 80914]]

grandfathered funds be required to comply with some, but not all, 
aspects of the proposed rule? For example, should they be required to 
comply with the proposed rule's asset segregation requirements and the 
requirement to have a formalized derivatives risk management program? 
Should they be required to comply with any other conditions?
d. Treatment of Hedging and Cover Transactions
    We believe that the 150% exposure-based portfolio limit would 
permit funds to engage in derivatives transactions to an extent that we 
believe is appropriate when done in compliance with the proposed rule's 
other conditions, and would permit a fund relying on the rule to use 
derivatives for a variety of purposes under the proposed rule, 
including to seek to hedge or mitigate risks. We have not separately 
included any provision in the proposed rule to permit a fund to reduce 
its exposure for purposes of the rule's portfolio limitations for 
particular derivatives transactions that may be entered into for 
hedging (or risk-mitigating) purposes or that may be ``cover 
transactions'' as described below.\235\ We believe that the DERA staff 
analysis, discussed in section III.B.1.c, suggests that such a 
reduction is not necessary in order to permit the use of derivatives 
for hedging or risk-mitigating purposes because most of the funds in 
DERA's sample did not have aggregate exposure in excess of 150% of net 
assets. In addition, while we expect that the proposed rule's exposure 
limitation would be applied relatively consistently across funds, we 
believe that providing for a hedging reduction may hinder our efforts 
toward establishing a consistent and effective approach toward the 
regulation of funds' use of derivatives, and that the exposure limits 
under the proposed rule are more easily administrable than some other 
potential alternatives that could entail a more tailored approach.
---------------------------------------------------------------------------

    \235\ See infra note 244. The proposed rule would, however, 
permit a fund to net certain transactions when determining its 
exposure, as noted above, where the transactions to be netted are 
directly offsetting derivatives that are the same type of instrument 
and have the same underlying reference asset, maturity and other 
material terms. See proposed rule 18f-4(c)(3)(i).
---------------------------------------------------------------------------

    One substantial concern regarding any hedging or cover transaction 
exception is that we believe it would be difficult to develop a 
suitably objective standard for these transactions, and that confirming 
compliance with any such standard would be difficult, both for fund 
compliance personnel and for our staff.\236\ Our staff has noted that 
funds may enter into a variety of derivatives transactions based on 
their portfolio managers' views of the expected performance 
correlations between such transactions and other investments (including 
other derivatives instruments) made by the funds, and these 
relationships may be difficult to describe effectively and 
comprehensively in an exemptive rule of general applicability such as 
the proposed rule.\237\ In addition, many hedges are imperfect,\238\ 
which makes it difficult to distinguish purported hedges from leveraged 
or speculative exposures. For example, while a fund might use interest 
rate or currency derivatives primarily for hedging particular 
investments, the same instruments could be used by the fund to obtain, 
or could inadvertently result in, leveraged or speculative exposures in 
a fund's portfolio.\239\
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    \236\ As discussed in section IV.E, the CESR commitment approach 
for UCITS funds permits funds to reduce their calculated derivatives 
exposure for certain netting and hedging transactions, while 
providing for a lower exposure limit (100% of net assets) than the 
proposed rule. We note, however, that the challenges of 
distinguishing between hedging and speculative activity have been 
considered in numerous regulatory and financial contexts. One recent 
regulatory example is the exemption for certain risk-mitigating 
hedging activities from the prohibition on proprietary trading by 
banking entities in the final rules implementing section 13 of the 
Bank Holding Company Act (commonly known as the ``Volcker Rule''). 
See Prohibitions and Restrictions on Proprietary Trading and Certain 
Interests in, and Relationships With, Hedge Funds and Private Equity 
Funds, Release No. BHCA-1 (Dec. 10, 2013) [79 FR 5536 (Jan. 31, 
2014)] (``Volcker Rule Adopting Release''), at 5629, 5627. The 
complexity of distinguishing hedging from speculation in this 
context is notable because the exemption is designed for entities 
that would not otherwise be engaged in speculative activity. We 
believe it would be even more difficult to make such a distinction 
in the context of funds that in the ordinary course are permitted, 
and often likely, to use derivatives for both speculative and 
hedging purposes.
    \237\ See, e.g., MFDF Concept Release Comment Letter, at 4 
(noting that ``in recent years, funds have adopted more complex and 
more nuanced investment strategies, and thus are using derivatives--
and sometimes the same type of derivative--in many different ways, 
including as a way of hedging and mitigating other risks present in 
fund portfolios. Therefore, any detailed and purportedly all-
inclusive approach to regulations governing funds' use of 
derivatives is almost necessarily destined to be out-of-date the 
moment it is issued.'').
    \238\ See, e.g., Federal Reserve Bank of Chicago, Understanding 
Derivatives: Markets and Infrastructure (Aug. 2013), available at 
https://www.chicagofed.org/publications/understanding-derivatives/index, at 27-28 (noting that exchange-traded contracts often give 
rise to basis risk, i.e., the risk that arises when ``the exposure 
to the underlying asset, liability or commodity that is being hedged 
and the hedge contract (the derivatives contract) are imperfect 
substitutes'' and that mitigating basis risk may necessitate OTC 
derivatives that can be tailored to meet specific requirements).
    \239\ One commenter to the Concept Release offered the following 
hypothetical: A fund holds euro-denominated shares with a market 
value of [euro]2 million and hedges against exchange rate 
fluctuations by entering into a 3-month forward contract to sell 
[euro]2 million for $2.75 million. If the euro value of the shares 
falls below the notional amount of the currency contract, then it 
could be viewed as a form of investment leverage, but the 
alternative--requiring the fund to continuously adjust its hedge to 
match the value of its security position--could be prohibitively 
expensive and contrary to the best interest of the fund's 
shareholders. See Keen Concept Release Comment Letter, at 11.
---------------------------------------------------------------------------

    The Concept Release sought comment on the ``cover transaction'' 
alternative to liquid asset segregation first addressed by our staff in 
the Dreyfus Letter as a means of limiting a fund's leverage and risk of 
loss from derivatives.\240\ In the Dreyfus Letter, our staff stated 
that it would not object to a fund covering its obligations by entering 
into certain other transactions that were intended to position the fund 
to meet its obligations under the derivatives transaction to be covered 
or by holding the asset (or the right to acquire the asset) that the 
fund would be required to deliver under certain derivatives, rather 
than following the segregated account approach set forth in Release 
10666. While commenters to the Concept Release generally argued for 
retaining the flexibility offered by the cover transaction approach, 
they also raised numerous issues that demonstrate the difficulties in 
identifying transactions that should be viewed as providing adequate 
coverage.\241\
---------------------------------------------------------------------------

    \240\ See Dreyfus No-Action Letter, supra note 55. See also 
Concept Release, supra note 3, at nn.70-71 and accompanying text 
(discussing circumstances under which the staff has provided 
guidance with respect to whether certain ``obligations may be 
covered by funds transacting in futures, forwards, written options, 
and short sales'').
    \241\ In contrast to the types of hedging (or risk-mitigating) 
or cover transactions that we discuss in this section, we believe 
that the proposed rule's netting provision is sufficiently limited 
in scope and purpose such that allowing netting would be unlikely to 
raise the concerns discussed in this section. See supra section 
III.B.1.b.i.2.
---------------------------------------------------------------------------

    One commenter noted that, although entering into cover transactions 
``can mitigate the potential for loss and thus the effect of 
indebtedness leverage,'' the determination of which transactions 
actually offset others can be ``very complicated.'' \242\ Other issues 
raised by commenters and in the 2010 ABA Derivatives Report included: 
Whether transactions involving two different counterparties could 
provide adequate cover for each other; whether positions that are 
``substantially correlated'' could offset each other; whether 
transactions

[[Page 80915]]

that are ``demonstrably fully or partially offsetting'' could cover 
each other; and whether the cover transaction approach extended to, or 
should be extended to, other transactions not addressed in the Dreyfus 
Letter, such as whether a currency forward could be covered with a 
currency swap, or whether a written CDS could be covered by holding the 
underlying reference bond.\243\
---------------------------------------------------------------------------

    \242\ See ICI Concept Release Comment Letter, at 14.
    \243\ See, e.g., ICI Concept Release Comment Letter, at 14; 2010 
ABA Derivatives Report, at 19; Oppenheimer Concept Release Comment 
Letter, at 5; SIFMA Concept Release Letter, at 8.
---------------------------------------------------------------------------

    Some commenters endorsed a ``principles-based approach'' to these 
questions, broadly advocating that we allow funds to determine which 
transactions should be deemed to cover the exposure of another 
derivatives transaction.\244\ Our staff has found through examinations 
that funds have expanded their reliance on a cover transaction approach 
for a variety of different strategies involving written and purchased 
options and long and short futures, which in the staff's view raises 
concerns regarding whether the risks under such complex combinations of 
derivatives are in fact covered. We note in this regard that an 
incorrect determination that two or more transactions are actually 
covered could leave a fund unprotected against the risks relating to 
these transactions and could result in undue speculative activity. A 
principles-based approach to these issues could also implicate a 
concern raised by one commenter that ``different funds could end up 
with different determinations, perhaps some taking more aggressive 
positions to allow for greater use of derivatives to drive 
performance.'' \245\ We therefore do not believe it would be 
appropriate to permit funds broad discretion under the proposed rule to 
determine, based on their own interpretations, the types of derivatives 
transactions that should be exempt from the restrictions underlying 
section 18 based on their different characteristics purportedly 
covering the risks associated with other derivatives transactions.
---------------------------------------------------------------------------

    \244\ See, e.g., T. Rowe Price Concept Release Comment Letter, 
at 3 (``Under a principles-based approach, the SEC should also 
acknowledge that it is possible for a fund to conclude that in 
certain cases, transactions that are not identical can be offset for 
coverage purposes (factors that may impact this conclusion are the 
credit quality of the counterparties, expected correlation between 
the two transactions, etc.'').
    \245\ AQR Concept Release Comment Letter, at 4.
---------------------------------------------------------------------------

    For all of these reasons, we believe it would be more effective to 
provide for a 150% exposure-based portfolio limit that we believe would 
provide funds sufficient flexibility to use derivatives for a variety 
of purposes, including to hedge or mitigate risks as discussed above, 
rather than proposing a lower exposure limit that includes exceptions 
for potentially hedging or cover transactions.
    We request comment on our determination not to provide for 
exclusions for hedging and offsetting transactions in the proposed 
rule.
     As discussed above, the proposed rule generally would not 
permit a fund to reduce its exposure for purposes of the rule's 
portfolio limitations for particular types of potentially hedging, 
risk-mitigating or cover transactions, and instead would seek to 
provide funds sufficient flexibility to engage in these transactions by 
permitting a fund to have exposure of up to 150% of net assets (or 300% 
under the risk-based limit discussed below). Do commenters agree that 
this is an appropriate approach?
     Should we, instead, reduce the amount of aggregate 
exposure a fund would be permitted to obtain but permit funds to reduce 
their exposure for particular derivatives transactions that are entered 
into for hedging or risk-mitigating purposes or that are cover 
transactions? If we were to take this approach, what would be an 
appropriate exposure limit? Should we, for example, limit a fund's 
exposure under this approach to 100% of the fund's net assets? Would it 
be possible to provide comprehensive guidance or prescribe in a rule 
the types of transactions that appropriately should be permitted to 
reduce a fund's exposure without requiring the kinds of instrument-by-
instrument determinations required under the current approach? If so, 
how?
2. Risk-Based Portfolio Limit
    As an alternative to the exposure-based portfolio limit, the 
proposed rule includes a risk-based portfolio limit that would permit a 
fund to enter into derivatives transactions, and obtain exposure in 
excess of that permitted under the exposure-based portfolio limit, if 
the fund complies with the VaR-based test described below (the ``VaR 
test''). The risk-based portfolio limit, including the VaR test, is 
designed to provide an indication of whether a fund's derivatives 
transactions, in aggregate, have the effect of reducing the fund's 
exposure to market risk, as measured by the VaR test. A fund that 
elects the risk-based portfolio limitation under the proposed rule 
would also be subject to an exposure limit, but would be permitted to 
obtain exposure under its derivatives transactions and other senior 
securities transactions of up to 300% of the fund's net assets.\246\
---------------------------------------------------------------------------

    \246\ Proposed rule 18f-4(a)(1)(ii).
---------------------------------------------------------------------------

    As discussed in section II.B above, the concerns underlying section 
18 include the undue speculation concern expressed in section 1(b)(7) 
of the Act that ``excessive borrowing and the issuance of excessive 
amounts of senior securities'' may ``increase unduly the speculative 
character'' of a fund's common stock.\247\ As we noted in Release 
10666, leveraging a fund's portfolio through the issuance of senior 
securities ``magnifies the potential for gain or loss on monies 
invested'' and therefore ``results in an increase in the speculative 
character'' of the fund's outstanding securities. Section 18 seeks to 
address this concern by limiting the obligations a fund could incur 
through senior securities transactions. However, although derivatives 
transactions involve the issuance of senior securities, funds can use 
derivatives in ways that may not necessarily magnify a fund's potential 
for gain or loss, or result in an increase in the speculative character 
of the fund. For example, commenters have indicated that some fixed-
income funds use a range of derivatives, including CDS, interest rate 
swaps, swaptions and futures, and currency forwards, and that these 
derivatives are being used, in part, to seek to mitigate the risks 
associated with a fund's bond investments, or to achieve particular 
risk targets, such as a specified duration.\248\ Such strategies, or 
other strategies that funds currently use or may develop in the future, 
may involve the use of derivatives that, in the aggregate, have 
relatively high notional amounts, but which are used in a manner that 
could be expected to reduce a fund's potential for gain or loss due to 
market movements and thereby result in a fund being less speculative 
than if the fund did not use derivatives. We believe that it may be 
appropriate for a fund to be able to obtain exposure in excess of that 
permitted under a portfolio limitation focused solely on the level of a 
fund's exposure where the fund's use of derivatives, in aggregate,

[[Page 80916]]

has the effect of reducing the fund's exposure to market risk.\249\
---------------------------------------------------------------------------

    \247\ See section 1(b)(7) of the Investment Company Act; see 
also supra section II.B.
    \248\ See, e.g., BlackRock Concept Release Comment Letter, at 25 
(noting ``the use of a derivative to mitigate some or all of the 
risk inherent in physical positions held in a fund portfolio, such 
as purchase of a put option on a stock `to provide downside price 
protection, use of an interest rate swap to shorten the duration of 
a bond portfolio or the sale of a currency forward to reduce the 
currency exposure of a bond denominated in a currency other than US 
dollars''); ICI Concept Release Comment Letter, at 25 (``[f]ixed 
income funds frequently use derivatives to structure and control 
duration, yield curve, sector, and/or credit exposures'').
    \249\ As used in this Release, ``market risk'' refers to the 
risk of financial loss resulting from movements in market prices, 
and includes both general market risk, which refers to the risk 
associated with movements in the markets as a whole, and specific 
market risk, which refers to the risk associated with movements in 
the price of a particular asset. See, e.g., Edward Platen & Gerhard 
Stahl, A Structure for General and Specific Market Risk, 18 
Computational Statistics 355 (Sept. 2003), available at http://www.fe-tokyo.kier.kyoto-u.ac.jp/symposium/platen/sympo_platen_02.pdf.; see also Gregory Brown & Nishad Kapadia, Firm-
Specific Risk and Equity Market Development, 84 J. of Fin. Econ. 358 
(May 2007), available at http://www.sciencedirect.com/science/article/pii/S0304405X06002145.
---------------------------------------------------------------------------

    The risk-based alternative under the proposed rule therefore is 
designed to provide an alternative portfolio limitation that focuses 
primarily on a risk assessment of a fund's use of derivatives, in 
contrast to the exposure-based portfolio limit, which focuses solely on 
the level of a fund's exposure.\250\ The risk-based portfolio limit 
reflects our belief that if a fund's use of derivatives, in the 
aggregate, can reasonably be expected to result in an investment 
portfolio that is subject to less market risk than if the fund did not 
use such derivatives--if the fund's derivatives use reduces rather than 
magnifies the potential for loss from market movements--then the fund's 
derivatives use is also less likely to implicate the undue speculation 
concern expressed in section 1(b)(7). As discussed further below, we 
believe that the VaR test would be an appropriate way to evaluate if a 
fund's derivatives use, in the aggregate, decreases the fund's overall 
exposure to market risk, and that it therefore may be appropriate for 
the proposed rule to allow a fund that satisfies the VaR test to have 
greater exposure under its derivatives transactions than would be 
permitted for a fund operating under the exposure-based portfolio 
limit.
---------------------------------------------------------------------------

    \250\ We believe that the inclusion of the risk-based 
alternative in the proposed rule, and in particular its use of the 
VaR test, is consistent with the views expressed by some commenters 
to the Concept Release and the FSOC Notice suggesting that concerns 
about leverage be addressed by using risk-based measures, such as 
VaR, as an alternative or supplement to traditional leverage 
metrics. See, e.g., Comment Letter of Nuveen Investments to the FSOC 
Request for Comment (Mar. 25, 2015) (``Nuveen FSOC Comment 
Letter''), available at http://www.regulations.gov/#!documentDetail;D=FSOC-2014-0001-0051, at 6-7 (noting the firm's 
use of ``different tools to measure the effects of leverage and its 
accompanying risks,'' and noting, when using VaR, that ``[i]t is 
helpful, for example, to ``determine the VaR of a fund's portfolio 
both before and after the addition of leverage, to compare both the 
unleveraged and leveraged metrics to those of the benchmark''); 
Oppenheimer Concept Release Comment Letter, at 3 (advocating for 
``the use of VaR for measuring and mitigating the potential exposure 
and risks of derivatives in an investment company's portfolio for 
funds making sophisticated and extensive use of derivatives''). Some 
commenters also suggested the use of VaR as a means of determining 
asset segregation requirements for funds. See, e.g., SIFMA Concept 
Release Comment Letter, at 7; BlackRock Concept Release Comment 
Letter, at 5; ICI Concept Release Comment Letter, at 12.
---------------------------------------------------------------------------

a. VaR Test Under the Risk-Based Portfolio Limit
    To satisfy the VaR test under the risk-based portfolio limit, a 
fund's full portfolio VaR would have to be less than the fund's 
securities VaR immediately after the fund enters into any senior 
securities transaction.\251\ A fund's ``full portfolio VaR'' would be 
defined as the VaR of the fund's entire portfolio, including 
securities, derivatives transactions and other investments.\252\ A 
fund's ``securities VaR'' would be defined as the VaR of the fund's 
portfolio of securities and other investments, but excluding any 
derivatives transactions.\253\ As explained below, we believe that the 
determination by a fund that its full portfolio VaR is less than its 
securities VaR would be an appropriate indication that the fund's 
derivatives use, in the aggregate, decreases the fund's overall 
exposure to market risk.
---------------------------------------------------------------------------

    \251\ Proposed rule 18f-4(a)(1)(ii).
    \252\ Proposed rule 18f-4(c)(11)(i)(B).
    \253\ Proposed rule 18f-4(c)(11)(i)(A). Although the proposed 
rule uses the term ``securities VaR,'' some instruments that a fund 
could hold, and that would need to be included in the fund's 
securities VaR, may not be ``securities'' for all purposes under the 
federal securities laws. For example, a fund's securities VaR would 
include any direct holdings of non-U.S. currencies. A fund's 
securities VaR would also include derivative instruments that do not 
entail a future payment obligation for a fund (and thus are not 
``derivatives transactions'' as defined in the rule), such as most 
purchased options.
---------------------------------------------------------------------------

    The proposed rule defines VaR as ``an estimate of potential losses 
on an instrument or portfolio, expressed as a positive amount in U.S. 
dollars, over a specified time horizon and at a given confidence 
level,'' which we believe is generally consistent with definitions of 
VaR that are used in other regulatory regimes as well as in academic 
literature.\254\ While VaR can be calculated using several different 
approaches and a wide range of parameters (as discussed further below), 
VaR has certain characteristics that we believe make it an appropriate 
metric, when used as part of the VaR test, for assessing the effect of 
derivatives use on a fund's exposure to market risk.
---------------------------------------------------------------------------

    \254\ Proposed rule 18f-4(c)(11). See, e.g., Form PF (defining 
VaR as ``[f]or a given portfolio, the loss over a target horizon 
that will not be exceeded at some specified confidence level''). See 
also Volcker Rule Adopting Release, supra note 236, at Appendix A 
(defining Value-at-Risk as ``the commonly used percentile 
measurement of the risk of future financial loss in the value of a 
given set of aggregated positions over a specified period of time, 
based on current market conditions.'' See also Darrell Duffie & Jun 
Pan, An Overview of Value at Risk, 4 The J. of Derivatives 7 (Spring 
1997) (``For a given time horizon t and confidence level p, the 
value at risk is the loss in market value over the time horizon t 
that is exceeded with probability 1-p''). See also Michael Minnich, 
Perspectives on Interest Rate Risk Management for Money Managers and 
Traders (Frank Fabozzi, ed.) (``Minnich''), at 39 (``VAR can be 
defined as the maximum loss a portfolio is expected to incur over a 
specified time period, with a specified probability'').
---------------------------------------------------------------------------

    First, VaR generally enables risk to be measured in a comparable 
and consistent manner across diverse types of instruments that may be 
included in a fund's portfolio, and provides a means of integrating the 
market risk associated with different instruments into a single number 
that provides an overall indication of market risk.\255\ By contrast, 
many other risk metrics used by funds are suited to particular 
categories of instruments and, given the diverse investment portfolios 
of many funds, may be less suitable as a means of assessing risk for 
purposes of the risk-based alternative under the proposed rule.\256\ 
For example, risk measures for government bonds can include duration, 
convexity and term-structure models; for corporate bonds, ratings and 
default models; for stocks, volatility, correlations and beta; for 
options, delta, gamma and vega; and for foreign exchange, target zones 
and spreads.\257\ Because proposed rule 18f-4 is intended to apply 
generally to all funds that use derivatives, however, and because VaR 
can be applied across diverse types of instruments that may be included 
in the portfolios of funds that pursue different strategies, we believe 
that VaR is a more appropriate metric for purposes of the proposed 
rule.\258\
---------------------------------------------------------------------------

    \255\ See Kevin Dowd, An Introduction to Market Risk Measurement 
(Oct. 2002) (``Dowd''), at 10 (VaR ``provides a common consistent 
measure of risk across different positions and risk factors. It 
enables us to measure the risk associated with a fixed-income 
position, say, in a way that is comparable to and consistent with a 
measure of the risk associated with equity positions''). See also 
Zvi Weiner, Introduction to VaR (Value-at-Risk) (``Weiner'') (May 
1997), available at http://pluto.mscc.huji.ac.il/~mswiener/research/
Intro2VaR3.pdf (noting that VaR provides ``an integrated way to deal 
with different markets and different risks and to combine all of the 
factors into a single number'' that indicates the overall risk 
level).
    \256\ See Weiner, supra note 255.
    \257\ See id. We have proposed to require certain funds to 
report some of these metrics on proposed Form N-PORT, such as 
portfolio-level duration (DV01 and SDV01) and position-level delta, 
because we believe that such information would be useful to the 
Commission and to investors. See Investment Company Reporting 
Modernization Release, supra note 138.
    \258\ See, e.g., Katerina Simons, The Use of Value at Risk by 
Institutional Investors (``Simons''), New Eng. Econ. Rev. 21 (Nov./
Dec. 2000), available at http://www.bostonfed.org/economic/neer/neer2000/neer600b.pdf (noting that VaR is ``particularly useful'' 
for an investor that ``has a multi-asset-class portfolio and needs 
to measure its exposure to a variety of risk factors. VaR can 
measure the risk of stocks and bonds, commodities, foreign exchange, 
and structured products such as asset-backed securities and 
collateralized mortgage obligations (CMOs), as well as off-balance 
sheet derivatives such as futures, forwards, swaps, and options.'' 
See also infra section III.B.2.b.

---------------------------------------------------------------------------

[[Page 80917]]

    Second, VaR can be used to assess the effect of the addition of a 
position, or group of positions, on the overall market risk of a 
portfolio. If the addition of a position to a portfolio increases VaR, 
the position can generally be viewed as adding to a fund's exposure to 
market risk, while if the addition of a position decreases VaR, it can 
be viewed as reducing the fund's exposure to market risk.\259\
---------------------------------------------------------------------------

    \259\ See Dowd, supra note 255, at 117-118 (defining incremental 
VaR (or ``IVaR'') as the change in VaR associated with the addition 
of a new position to a portfolio, and noting that ``IVaR gives us an 
indication of how [portfolio] risks change when we change the 
portfolio itself. In practice, we are often concerned with how the 
portfolio risk changes when we take on a new position, in which case 
the IVaR is the change in portfolio VaR associated with adding the 
new position to our portfolio.'').
---------------------------------------------------------------------------

    We believe that these characteristics allow the VaR test to be used 
as a means of evaluating whether a fund uses derivatives in a manner 
that would be less likely to implicate the concerns underlying section 
18. Section 18 does not restrict a fund's ability to invest in 
securities and other investments that would be included in a fund's 
securities VaR, but rather, restricts the ability of a fund to leverage 
its exposure to such investments by borrowing, or issuing debt or 
preferred equity, through senior securities. This reflects the concern 
that the addition of leverage generally will cause a fund to become 
more speculative and expose investors to potentially greater risk of 
loss due to market movements than if the fund were unlevered. As 
discussed above, a fund's use of derivatives transactions may cause a 
fund to become more speculative or expose investors to greater risk of 
loss, but may also be used to mitigate risks in the fund's portfolio.
    Whether a fund's use of derivatives exposes the fund to greater 
risk or less risk than if the fund did not use derivatives requires 
consideration of the risk characteristics of a fund's non-derivatives 
investments and its derivatives transactions, and the interaction of 
the risk characteristics of these investments and transactions with 
each other. The VaR test provides a means for making such an 
assessment, by providing an indication of whether the market risk 
associated with a fund's portfolio of securities and other investments 
exclusive of derivatives (as measured by the fund's securities VaR), is 
greater than or less than the market risk associated with the fund's 
portfolio as a whole (as measured by the fund's full portfolio VaR), 
inclusive of derivatives transactions and taking into account the 
offsetting risk characteristics of different instruments in a fund's 
portfolio. If a fund's full portfolio VaR is less than its securities 
VaR--i.e., if the fund can satisfy the VaR test--we believe that the 
fund's derivatives use, in the aggregate, can be viewed as decreasing 
the fund's overall exposure to market risk.\260\ In this way, we 
believe that a fund's compliance with the VaR test would indicate that 
the fund's derivatives transactions do not, in the aggregate, result in 
an increase in the speculative character of the fund, and that the 
fund's use of derivatives transactions thus would be less likely to 
implicate the undue speculation concern expressed in section 
1(b)(7).\261\
---------------------------------------------------------------------------

    \260\ See also, e.g., Nuveen FSOC Comment Letter, at 6 (noting 
the firm's use of different ``tools to measure the effects of 
leverage and its accompanying risks,'' and noting, when using VaR, 
that ``[i]t is helpful, for example, to determine the VaR of a 
fund's portfolio both before and after the addition of leverage, to 
compare both the unleveraged and leveraged metrics to those of the 
benchmark'').
    \261\ By contrast, if a fund used derivatives transactions 
solely for the purpose of leveraging its physical portfolio--for 
example, by holding a long-only portfolio of large cap equity and 
obtaining further exposure to those securities through a basket 
total return swap--the additional market risk incurred by the fund 
would cause the fund's full portfolio VaR to be greater than its 
securities VaR. See, e.g., Jacques N. Gordon & Elysia Wai Kuen Tse, 
VaR: A Tool to Measure Leverage Risk, 29 The J. of Portfolio 
Management 62 (Summer 2003) (demonstrating how VaR increases as the 
degree of leverage added to a portfolio increases and noting that 
``[b]y comparing the value at risk of different leverage levels to 
the unleveraged result, we can calculate the incremental risk due to 
leverage'').
---------------------------------------------------------------------------

    We also believe permitting a fund to use derivatives transactions 
in these circumstances, and subject to the other requirements in the 
proposed rule, is broadly consistent with the policies and provisions 
of the Investment Company Act, which seeks to prevent funds from 
becoming unduly speculative by means of leveraging their assets through 
the issuance of senior securities, but generally does not impose 
limitations on a fund's ability to invest in risky or volatile 
securities instruments.\262\ Similarly, the VaR test is designed to 
limit a fund's ability to use derivatives transactions in order to 
address undue speculation concern expressed in section 1(b)(7) of the 
Act, but does not seek to limit the risk or volatility of the fund's 
investments more generally.
---------------------------------------------------------------------------

    \262\ See, e.g., 1994 Report, supra note 32, at 27 (noting that 
the Act ``imposes few substantive limits on mutual fund 
investments'' and that funds ``generally are permitted to make 
investments without regard to their volatility'').
---------------------------------------------------------------------------

    An additional benefit of using VaR in the risk-based portfolio 
limit is that, based on outreach conducted by our staff, we understand 
that VaR calculation tools are widely available and that many advisers 
already use risk management or portfolio management platforms that 
include VaR capability.\263\ We expect that the funds that would rely 
on the risk-based portfolio limit are funds with exposure approaching, 
or in excess of, the 150% exposure limit included in the exposure-based 
portfolio limit, and advisers to the funds that use derivatives more 
extensively may be particularly likely to already use risk management 
or portfolio management platforms that include VaR capability. Further, 
as discussed in section III.B.2.b below, VaR models also can be 
tailored in numerous ways in order to incorporate and reflect the risk 
characteristics of a fund's particular strategy and investments.\264\
---------------------------------------------------------------------------

    \263\ See, e.g., BNY Mellon, Risk Roadmap: Hedge Funds and 
Investors' Evolving Approach to Risk (Aug. 2012), available at 
http://www.thehedgefundjournal.com/sites/default/files/riskroadmap.pdf (noting that third-party administrators to hedge 
funds ``provide advanced risk functions'' to investors such as 
``[d]aily VaR analysis using multiple models''. See also Christopher 
L. Culp, Merton H. Miller & Andres M. P. Neves, Value at Risk: Uses 
and Abuses, 10 J. of Applied Corp. Fin. 26 (Jan. 1998) (VaR is 
``used regularly by nonfinancial corporations, pension plans and 
mutual funds, clearing organizations, brokers and futures commission 
merchants, and insurers'').
    \264\ See infra section III.B.2.b. For example, fund advisers 
that manage UCITS funds may already be using VaR to comply with the 
requirements of the ``relative VaR'' and ``absolute VaR'' approaches 
under the UCITS regulatory scheme (discussed below in this section 
and in section IV.E.). See, e.g., AQR Concept Release Comment Letter 
(noting that the firm is ``familiar with the `value at risk' or VaR 
methodologies, both through [its] management of UCITS funds and as 
an effective tool for day-to-day overall firm risk management'').
---------------------------------------------------------------------------

    The following example demonstrates how the VaR test would be used 
under the proposed rule to assess whether a fund's derivatives, in 
aggregate, result in an investment portfolio that is subject to more or 
less market risk than if the fund did not use such derivatives. Suppose 
that a fund has a net asset value of $100 million and holds a portfolio 
of non-U.S. debt securities, and that the fund calculates the VaR of 
such securities, using a VaR model that meets the requirements of the 
proposed rule, to be $3 million. Suppose further that the fund wishes 
to hedge some of its credit risk by purchasing CDS, adjust its duration 
by entering into interest rate swaps, and enter into currency forwards 
both to obtain exposure to certain foreign currencies and to hedge some 
of

[[Page 80918]]

its exposure to euro and yen currency risk. If the VaR of its full 
portfolio (i.e., its securities investments plus its derivatives 
transactions) immediately after entering into these derivatives 
transactions is less than $3 million, the fund would comply with the 
risk-based portfolio limit's VaR test.
    The VaR test under the risk-based portfolio limit is similar in 
certain ways to the ``relative VaR'' approach used by some UCITS funds. 
Under the relative VaR approach, the VaR of the UCITS fund's portfolio 
cannot be greater than twice the VaR of an unleveraged benchmark 
securities index (referred to as a ``reference portfolio'').\265\ In 
contrast to the relative VaR approach for UCITS funds, the VaR test 
under the proposed risk-based portfolio limit would use a fund's own 
portfolio of securities and other investments (exclusive of 
derivatives) as the baseline against which the fund's full portfolio 
VaR (inclusive of derivatives) would be compared. For the reasons 
discussed below, we believe the proposed rule's VaR test offers 
advantages over a relative VaR approach based on a hypothetical 
reference portfolio.\266\
---------------------------------------------------------------------------

    \265\ See infra section IV.E.
    \266\ We understand that some UCITS funds also may use an 
absolute VaR approach, which limits the maximum VaR that a UCITS 
fund can have relative to its net assets, generally at 20 percent of 
the UCITS fund's net assets. See section IV.E. As discussed in more 
detail below, we believe that our proposed rule's use of VaR--to 
assess whether a fund's derivatives as a whole directionally 
increase or mitigate risk, rather than to precisely estimate 
potential losses--may be a more effective way to use VaR to provide 
a risk assessment of a fund's use of derivatives for purposes of 
section 18 of the Investment Company Act.
---------------------------------------------------------------------------

    First, we believe that the VaR test under the proposed rule is more 
consistent with the policies and provisions of the Investment Company 
Act, which restricts in section 18 a fund's ability to issue senior 
securities but otherwise generally does not impose limitations on a 
fund's ability to invest in risky or volatile securities investments, 
provided that such investments are consistent with the investment 
strategy described to investors. Using the fund's own portfolio as the 
baseline for the VaR test under the proposed rule--and thus providing a 
risk assessment of the fund's use of derivatives in the context of the 
fund's investment strategy disclosed to investors, which may include 
risky or volatile securities--would be more consistent with the Act. A 
relative VaR test, by contrast, could be viewed as a limitation on risk 
or volatility generally--as opposed to a limitation on the issuance of 
senior securities--because it would measure the VaR of a fund's 
portfolio, including non-senior securities investments, against a 
hypothetical reference portfolio, and such non-senior securities 
investments could cause the fund to fail a relative VaR test.\267\ 
Second, we are also concerned that under a relative VaR approach it 
would be difficult, in light of the wide range of fund strategies and 
potential benchmarks, to require funds to select benchmarks that are 
appropriate (particularly in connection with alternative 
strategies),\268\ are unleveraged,\269\ and would otherwise serve as an 
appropriate baseline against which the relative VaR should be 
measured.\270\
---------------------------------------------------------------------------

    \267\ For example, a sector-focused equity fund (e.g., focusing 
on financial or commodity-focused stocks) that used a broad-based 
large cap equity index as its benchmark under a relative VaR test 
could potentially fail to comply with the test if the sector 
experienced a period of unexpected volatility, even if the fund did 
not use a significant amounts of derivatives. In this case the 
volatility associated with the fund's equity investments, rather 
than its derivatives transactions, could cause the fund to fail the 
relative VaR test.
    \268\ The difficulty of identifying appropriate benchmarks for 
purposes of assessing the performance of alternative funds 
illustrates some of the potential challenges that identifying an 
appropriate benchmark for purposes of a relative VaR test could 
entail. For example, our staff has noted that many alternative funds 
use LIBOR or a Treasury bill rate of interest plus a spread (e.g., 4 
percentage points) for their performance benchmark. It has been 
observed, however, that although such benchmarks reflect return, 
they may understate risk, which raises concerns that they may not be 
effective for purposes of a test that would compare a fund's VaR to 
a benchmark VaR. See Richard J. Harper, Absolute Tracking: Moving 
Past Absolute Return for Hedge Fund Benchmarking (May 2013), 
available at http://www.nepc.com/writable/research_articles/file/2013_03_nepc_absolute_tracking_update.pdf (noting that the 
``fundamental problem with absolute return benchmarks'' is that they 
``reflect only return'' and ``understate risk'').
    \269\ Our staff has observed that some alternative funds use 
hedge fund indices for performance benchmarking, but such indices 
would not be appropriate for comparing a fund's VaR to the benchmark 
VaR because the hedge funds included in the benchmark generally can 
be expected to use leverage. See id. (hedge fund benchmarks ``vary 
widely with regard to long/short exposure, leverage, capitalization, 
sector focus, international diversification, and optionality'').
    \270\ See Daisy Maxey, Benchmarking Alternative Funds an Inexact 
Science, Wall Street Journal (Apr. 10, 2014), available at http://www.wsj.com/articles/SB10001424052702304058204579493590377289408 
(citing statement from Morningstar's director of alternative funds 
research that ``more often than not, there is no single good 
measure'' for benchmarking alternative funds and therefore 
``multiple benchmarks must be used'').
---------------------------------------------------------------------------

    While we believe that there are significant benefits to using VaR 
in the risk-based portfolio limit, we also recognize that significant 
attention has been given (especially since the 2007-2009 financial 
crisis) to the limitations of VaR and the risks of overreliance on VaR 
as a risk management tool.\271\ One widely expressed concern with VaR 
is that it does not adequately reflect ``tail risks'' (i.e., the size 
of losses that may occur on the trading days during which the greatest 
losses occur).\272\ Another concern is that VaR calculations may 
underestimate the risk of loss under stressed market conditions.\273\
---------------------------------------------------------------------------

    \271\ See, e.g., James O'Brien & Pawel J. Szerszen, An 
Evaluation of Bank VaR Measures for Market Risk During and Before 
the Financial Crisis, Federal Reserve Board Staff Working Paper 
(Mar. 7, 2014) (``[c]riticism of banks' VaR measures became 
vociferous during the financial crisis as the banks' risk measures 
appeared to give little forewarning of the loss potential and the 
high frequency and level of realized losses during the crisis 
period''). See also Pablo Triana, VaR: The Number That Killed Us, 
Futures Magazine (Dec. 1, 2010), available at http://www.futuresmag.com/2010/11/30/var-number-killed-us (noting that ``in 
mid-2007, the VaR of the big Wall Street firms was relatively quite 
low, reflecting the fact that the immediate past had been dominated 
by uninterrupted good times and negligible volatility'').
    \272\ In the regulatory context, VaR gained widespread usage by 
banks and other financial institutions following the 1996 Market 
Risk Amendment to the Basel II Capital Accords (the ``Market Risk 
Amendment''), which set forth a framework of qualitative and 
quantitative standards for allowing banks to determine capital 
charges for market risks they incurred, by using proprietary 
internal models. The Basel Committee on Bank Supervision (BCBS) 
modified this framework in 2009, by introducing an additional 
capital charge based on a ``stressed VaR'' calculation--that is, VaR 
calibrated to a period of significant financial stress.
     More recently, the BCBS has proposed the use of ``stressed 
expected shortfall''. Expected shortfall is similar to VaR but 
differs from VaR in that it accounts for tail risk by taking the 
average or expected losses beyond the specified confidence level; 
``stressed'' expected shortfall refers to expected shortfall 
calculated using a model that is calibrated to a period of 
significant financial stress. The BCBS has recognized that, while it 
believes that a shift to stressed expected shortfall would 
``account[] for the tail risk in a more comprehensive manner, 
considering both the size and likelihood of losses above a certain 
threshold'', it also presents challenges, including the difficulty 
of identifying a stress period using a full set of risk factors for 
which historical data is available and potentially greater 
sensitivity of expected shortfall to extreme outlier losses. See 
Bank for International Settlements, Basel Committee on Banking 
Supervision, Fundamental review of the trading book: A revised 
market risk framework (Oct. 2013) (``BCBS Trading Book Review--Oct. 
2013).
    \273\ See, e.g., Amit Mehta, Max Neukirchen, Sonja Pfetsch & 
Thomas Poppensieker, Managing Market Risk: Today and Tomorrow, 
McKinsey Working Papers on Risk, No. 32 (May 2012).
---------------------------------------------------------------------------

    Under the proposed rule, however, VaR would be used to focus 
primarily on the relationship between a fund's securities VaR and its 
full portfolio VaR, rather than on the absolute magnitude of the 
potential loss of any particular investment or the fund's portfolio as 
a whole. We believe that this use of VaR--to assess whether a fund's 
derivatives as a whole directionally increase or mitigate risk, rather 
than to precisely estimate potential losses--mitigates some of the 
concerns that have been

[[Page 80919]]

expressed about the use of VaR.\274\ In addition, the VaR test under 
the risk-based portfolio limit would be coupled with an outside limit 
on exposure, which, as discussed in section III.B.2.c below, would 
provide an independent limit on a fund's use of senior securities 
transactions under the proposed rule that would not be based on VaR.
---------------------------------------------------------------------------

    \274\ See infra section III.B.2.b (discussing the proposed 
rule's requirements concerning the VaR models that a fund would be 
permitted to use for purposes of the VaR test and the requirement 
that, regardless of which VaR model the fund chooses, the fund must 
use the same VaR model, and apply it consistently, in the 
calculation of the fund's securities VaR and full portfolio VaR).
---------------------------------------------------------------------------

    We also recognize that funds may use measures other than VaR in 
order to assess the risks posed by a fund's derivatives and other 
investments.\275\ The VaR test is designed to serve as a means of 
limiting a fund's ability to leverage its assets in a manner that would 
implicate the undue speculation concern in section 1(b)(7) of the Act, 
but it is not intended as a substitute for other measures that a fund 
may consider in connection with its derivatives risk management. For 
example, those funds that are subject to the requirement to have 
formalized derivatives risk management programs should consider other 
appropriate measures to assess risk, including stress tests that are 
tailored to a fund's particular characteristics, as part of their 
derivatives risk management programs, as discussed in section III.D 
below.\276\ We also recognize that the use of derivatives poses other 
risks, such as counterparty risk and liquidity risk, that may not be 
addressed by the VaR test under the proposed rule; however, we believe, 
as discussed in section III.D below, that funds making significant use 
of derivatives generally should address these risks as part of their 
risk management programs.\277\ We have proposed that the risk-based 
portfolio limit include a VaR-based test because of the characteristics 
of VaR we discussed above, which we believe allow VaR to be used as 
part of the VaR test to provide an indication of whether a fund's 
derivatives as a whole directionally increase or mitigate risk.
---------------------------------------------------------------------------

    \275\ See, e.g., Frank J. Ambrosio, An Evaluation of Risk 
Metrics, Vanguard Investment Counseling & Research (2007), available 
at https://personal.vanguard.com/pdf/flgerm.pdf (discussing various 
risk metrics used by fund managers, including absolute risk measures 
such as standard deviation (the degree of fluctuation in a 
portfolio's return), risk of loss (the percentage of outcomes below 
a certain total return level) and shortfall risk (the probability 
that an investment's value will be less than is needed to meet 
portfolio objectives), and relative risk measures such as excess 
return (a security's return above or below that of a benchmark or 
risk-free asset), tracking error (the standard deviation of excess 
return), Sharpe ratio (a measurement of how much return is being 
obtained for each theoretical unit of risk), information ratio (the 
risk-adjusted return of a portfolio versus a benchmark), beta (the 
magnitude of an investment's price fluctuations relative to the ups 
and downs of the overall market) and Treynor ratio (the risk-
adjusted return of a portfolio or security versus the market).
    \276\ As discussed below in section III.D, the proposed rule 
would require a fund that relies on proposed rule 18f-4 to enter 
into derivatives transactions to have a formalized risk management 
program unless the fund limits its exposure from derivatives 
transactions to 50% or less of the fund's net assets (and does not 
use complex derivatives transactions). We expect that all funds that 
would operate under the risk-based limit would have derivatives 
exposure in excess of 50% of net assets, and thus would be required 
to have risk management programs, because funds with derivatives 
exposure of 50% or less would be able to comply with the 150% 
exposure limit and have no need to avail themselves of the higher 
300% exposure limit for funds that comply with the risk-based 
portfolio limit.
    \277\ Proposed rule 22e-4 also would require a fund subject to 
that rule to assess and periodically review the fund's liquidity 
risk, considering various factors specified in the rule, including 
the fund's use of borrowings and derivatives for investment 
purposes. See supra note 81 and accompanying text.
---------------------------------------------------------------------------

    We request comment immediately below on the proposed rule's 
inclusion of a risk-based portfolio limitation based on VaR and, in 
section III.B.2.b below, we request comment on the proposed rule's 
requirements regarding funds' use of particular VaR models in 
connection with the VaR test and the proposed rule's requirements for 
any VaR model chosen by the fund.
     Do commenters agree that the proposed rule should include, 
in addition to the exposure-based portfolio limit, an alternative 
portfolio limitation that focuses primarily on a risk assessment of a 
fund's use of derivatives? Do commenters agree that, where a fund's 
derivatives transactions, in the aggregate, result in an investment 
portfolio that is subject to less market risk than if the fund did not 
use such derivatives, it would be appropriate to permit the fund to 
engage in derivatives transactions to a greater extent than would be 
permitted under any exposure-based portfolio limit?
     As noted above, we are proposing to include the risk-based 
portfolio limit in the proposed rule because we recognize that, because 
derivatives transactions may be used for a variety of purposes, some 
funds may make use of derivatives that in the aggregate result in 
relatively high notional amounts, but which are not used to leverage 
the fund's assets in a manner that increases the fund's exposure to 
market risk. What types of funds have or could have exposure in excess 
of the limit provided in the exposure-based portfolio limit (150% of 
net assets) but use derivatives transactions that, in the aggregate, 
result in an investment portfolio that is subject to less market risk 
than if the fund did not use such derivatives? Are there funds that 
today use derivatives in amounts greater than the exposure-based 
portfolio limit but could comply with the risk-based portfolio limit? 
If so, what kinds of funds? If funds would have to restructure their 
portfolios to comply with the risk-based portfolio limit, how would 
they do so? Would they be able to pursue strategies or obtain 
investment exposures similar to their current strategies and exposures? 
If not, what types of strategies or investment exposures would not be 
possible?
     The proposed rule would use the VaR test to determine if a 
fund's derivatives transactions, in aggregate, result in an overall 
portfolio that is subject to less market risk than if the fund did not 
use such derivatives. Do commenters agree that VaR, as used in the VaR 
test, is an effective approach for this purpose? Are there other 
measures we should permit a fund to use, either in lieu of or in 
addition to VaR, to assess whether the fund's derivatives transactions, 
in the aggregate, have the effect of mitigating the fund's exposure to 
market risk? For example, would absolute risk measures (such as 
standard deviation, risk of loss or shortfall risk), relative risk 
measures (such as excess return, tracking error, Sharpe ratio, 
information ratio, beta or Treynor ratio), or stress testing/scenario 
generation, better address the purposes that the VaR test is intended 
to fulfill? \278\ If so, how would such risk measures be incorporated 
into a test for purposes of the risk-based portfolio limit?
---------------------------------------------------------------------------

    \278\ See supra note 275 (discussing different types of absolute 
and relative risk measures).
---------------------------------------------------------------------------

     As discussed above, we believe that the manner in which 
VaR would be used under the proposed rule, which focuses on the 
relationship between a fund's securities VaR and its full portfolio 
VaR, would mitigate some of the concerns that have been expressed 
regarding the risks and limitations of relying on VaR as a risk 
measure. Do commenters agree? If not, what alternative measures could 
be implemented to address these concerns? For example, would these 
concerns be addressed by requiring funds to comply with a test that is 
similar to the VaR test, but that uses expected shortfall instead of 
VaR (i.e., that would require a fund to compare the expected shortfall 
of its

[[Page 80920]]

securities portfolio with the expected shortfall of its full 
portfolio)? \279\
---------------------------------------------------------------------------

    \279\ See supra note 272 (discussing the use of expected 
shortfall under BCBS proposal).
---------------------------------------------------------------------------

     The risk-based portfolio limit would require a fund's full 
portfolio VaR to be less than its securities VaR. Should the test be 
more restrictive or less restrictive? For example, should we permit a 
fund's full portfolio VaR to exceed its securities VaR up to a 
specified limit (e.g., allow the fund's full portfolio VaR to exceed 
its securities VaR by not more than a specified percentage)? For 
example, would it be appropriate for the fund's full portfolio VaR to 
exceed its securities VaR by 10% or 20%? Conversely, should we make the 
test more restrictive and require that the fund's full portfolio be 
less than the fund's securities VaR by an amount specified in the rule? 
Should we, for example, require that the full portfolio VaR be 10% or 
20% less than the fund's securities VaR?
     For purposes of the risk-based portfolio limit, should the 
proposed rule use an approach such as (or similar to) the relative VaR 
or absolute VaR approach for UCITS funds, instead of or as an 
alternative to the proposed VaR test? Why or why not? Would it be more 
efficient to allow funds to use such an approach--e.g., because some 
advisers already use this approach for UCITS funds? Under a relative 
VaR approach, what sort of benchmarks would or would not be 
appropriate, and how should the benchmarks be chosen? Under an absolute 
VaR approach, what would be an appropriate VaR limit (e.g., 20%, as for 
UCITS funds, or a higher or lower limit)? Would a relative VaR or 
absolute VaR approach appropriately address the undue speculation 
concern underlying section 18? Why or why not?
     A fund's securities VaR would be the VaR of the fund's 
investments other than derivatives transactions which, as defined in 
the proposed rule, would include derivatives transactions that involve 
the issuance of a senior security. The VaR associated with derivatives 
that do not involve the issuance of a senior security, such as a 
typical purchased option, would be included in the fund's securities 
VaR. Although section 18 does not limit a fund's ability to acquire 
such derivatives, they could be volatile and thus could generate a 
securities VaR that would provide the fund additional latitude to 
engage in derivatives transactions under the risk-based portfolio 
limit. Should we, therefore, require the fund to exclude the VaR 
associated with all of the fund's derivatives from the securities VaR, 
whether or not they involve the issuance of a senior security, and, if 
so, how should we define ``derivatives'' for this purpose? If so, what 
would be the effects on funds' strategies?
     Should we place other limitations on a fund's ability to 
use borrowings or other financial commitment transactions to obtain 
leveraged exposures if the fund elects to use derivatives at the higher 
level permitted under the risk-based portfolio limit? Should we, for 
example, further restrict a fund's ability to use financial commitment 
transactions or other borrowings, the proceeds of which could be used 
by the fund to purchase securities investments that would increase the 
fund's securities VaR?
     Are there certain types of securities, derivatives or 
other instruments that would be difficult to model using VaR (taking 
into account the requirements for a fund's VaR model, discussed in 
section III.B.2.b below)? For example, would it be difficult for a fund 
to model an investment in a private fund, or in other types of illiquid 
investments that lack frequent valuations or transparency? Are there 
ways that we should modify the VaR test to allow a fund that invests in 
instruments that are difficult to model using VaR to demonstrate in 
some other way that its derivatives, in aggregate, are risk mitigating?
b. Choice of Model and Parameters for VaR Test
    The proposed rule defines VaR as ``an estimate of potential losses 
on an instrument or portfolio, expressed as a positive amount in U.S. 
dollars, over a specified time horizon and at a given confidence 
interval.'' \280\ We believe that this is generally consistent with the 
commonly understood definition of VaR as a risk measure.\281\ We also 
believe that, while VaR can be calculated using a number of different 
approaches and a wide range of parameters, this definition is broad 
enough to encompass most methods of calculating VaR. However, while we 
believe it is appropriate for funds to have flexibility in the 
selection of a VaR model and its parameters for purposes of the risk-
based portfolio limit, we also believe that a fund's VaR model should 
meet certain minimum requirements. As discussed further below, the 
proposed rule therefore would require a fund's VaR model to take into 
account and incorporate all significant, identifiable market risk 
factors associated with a fund's investments.\282\ In addition, the 
proposed rule would require a fund to use a minimum 99% confidence 
interval,\283\ a time horizon of not less than 10 and not more than 20 
trading days,\284\ and a minimum of three years of historical data to 
estimate historical VaR.\285\ A fund would also be required to apply 
its VaR model consistently when calculating its securities VaR and full 
portfolio VaR.\286\ We discuss these aspects of the proposed rule 
below.
---------------------------------------------------------------------------

    \280\ Proposed rule 18f-4(c)(11).
    \281\ See supra note 280.
    \282\ Proposed rule 18f-4(c)(11)(ii)(A).
    \283\ Proposed rule 18f-4(c)(11)(ii)(B).
    \284\ Proposed rule 18f-4(c)(11)(ii)(B).
    \285\ Proposed rule 18f-4(c)(11)(ii)(C).
    \286\ Proposed rule 18f-4(c)(11)(i)(C).
---------------------------------------------------------------------------

    First, the proposed rule would require a fund's VaR model to take 
into account and incorporate all significant, identifiable market risk 
factors associated with a fund's investments.\287\ Absent this 
requirement, the fund's VaR calculations, when used in the VaR test, 
may not provide a reliable indication of whether the fund's 
derivatives, in aggregate, are increasing or decreasing the fund's 
overall portfolio's exposure to market risk. The proposed rule provides 
a non-exclusive list of risk factors that may be relevant in light of a 
fund's strategy and investments, including equity price risk, interest 
rate risk, credit spread risk, foreign currency risk and commodity 
price risk,\288\ material risks arising from the nonlinear price 
characteristics of options and positions with embedded 
optionality,\289\ and the sensitivity of the market value of the fund's 
derivatives to changes in volatility or other material market risk 
factors.\290\
---------------------------------------------------------------------------

    \287\ Proposed rule 18f-4(c)(11)(ii)(A). ``Market risk'' for 
this purpose includes both general market risk and specific market 
risk. See supra note 249.
    \288\ Proposed rule 18f-4(c)(11)(ii)(A)(1).
    \289\ Proposed rule 18f-4(c)(11)(ii)(A)(2).
    \290\ Proposed rule 18f-4(c)(11)(ii)(A)(3).
---------------------------------------------------------------------------

    We understand that VaR models are often categorized into three 
methods--historical simulation,\291\ Monte Carlo

[[Page 80921]]

simulation,\292\ or parametric models.\293\ We also understand that 
each method has certain benefits and drawbacks, which may make a 
particular method more or less suitable, depending on a fund's 
strategy, investments and other factors. In particular, some VaR 
methodologies may not adequately incorporate all of the material risks 
inherent in particular investments, or all material risks arising from 
the nonlinear price characteristics of certain derivatives.\294\ While 
the proposed rule does not specify that a fund must use any particular 
type of VaR model, the proposed rule would require that any VaR model 
used by the fund take into account and incorporate all significant, 
identifiable market risk factors associated with the fund's 
investments, as discussed above, and to meet the rule's other 
requirements for a VaR model.
---------------------------------------------------------------------------

    \291\ Historical simulation models rely on past observed 
historical returns to estimate VaR. Historical VaR involves taking a 
fund's current portfolio, subjecting it to changes in the relevant 
market risk factors observed over a prior historical period, and 
constructing a distribution of hypothetical profits and losses. The 
resulting VaR is then determined by looking at the largest (100 
minus the confidence level) percent of losses in the resulting 
distribution. See, e.g., Dowd, supra note 255, at 56-68. See also 
Thomas J. Linsmeier & Neil D. Pearson, Value at Risk, Fin. Analysts 
J. (Mar.-Apr. 2000) (``Linsmeier & Pearson''), at 50-53.
    \292\ Monte Carlo simulation uses a random number generator to 
produce a large number (often tens of thousands) of hypothetical 
changes in market values that simulate changes in market factors. 
These outputs are then used to construct a distribution of 
hypothetical profits and losses on the fund's current portfolio, 
from which the resulting VaR is ascertained by looking at the 
largest (100 minus the confidence level) percent of losses in the 
resulting distribution. See, e.g., Dowd, supra note 255, at 221; 
Linsmeier & Pearson, supra note 291, at 53-56 (discussing the 
``delta-normal approach,'' a form of parametric method).
    \293\ Parametric methods to calculating VaR rely on estimates of 
key parameters (such as the mean returns, standard deviations of 
returns, and correlations among the returns of the instruments in a 
fund's portfolio) to create a hypothetical statistical distribution 
of returns for a fund, and use statistical methods to calculate VaR 
at a given confidence level. See, e.g., Dowd, supra note 255, at 37; 
Linsmeier & Pearson, supra note 291, at 56-57.
    \294\ For example, some parametric methodologies may be more 
likely to yield misleading VaR estimates for assets or portfolios 
that exhibit non-linear returns, due, for example, to the presence 
of options or instruments that have embedded optionality (such as 
callable or convertible bonds). See, e.g., Linsmeier & Pearson, 
supra note 291, at 57 (noting that historical and Monte Carlo 
simulation ``work well regardless of the presence of options and 
option-like instruments in the portfolio. In contrast, the standard 
[parametric] delta-normal method works well for instruments and 
portfolios with little option content but not as well as the two 
simulation methods when options and option-like instruments are 
significant in the portfolio.'').
---------------------------------------------------------------------------

    As discussed below in section III.D, the proposed rule would 
require funds that are subject to the requirement to have a formalized 
derivatives risk management program under the proposed rule to 
periodically review and update any VaR calculation models used by the 
fund, in order to evaluate their effectiveness and reflect changes in 
risks over time.\295\ As part of its derivatives risk management 
program, a fund that relies on the risk-based portfolio limit may wish 
to consider periodic backtesting or other procedures to assess the 
effectiveness of its VaR model, and in particular, may wish to use such 
testing to periodically assess whether its VaR model takes into account 
and incorporates all significant, identifiable market risk factors 
associated with the fund's investments.\296\
---------------------------------------------------------------------------

    \295\ Proposed rule 18f-4(a)(3)(i)(D).
    \296\ Backtesting refers to ``the application of quantitative, 
typically statistical, methods to determine whether a model's risk 
estimates are consistent with the assumptions on which a model is 
based.'' Dowd, supra note 255, at 141. If backtesting indicates that 
a model consistently overestimates or underestimates VaR, it may be 
because a fund's VaR model is not taking into account and 
incorporating the appropriate market risk factors associated with 
the fund's investments.
---------------------------------------------------------------------------

    The proposed rule would require a fund using historical VaR to have 
at least three years of historical market data.\297\ We understand that 
the availability of data is a key consideration when using historical 
simulation to estimate VaR, and that the length of the data observation 
period may significantly influence the results of a VaR calculation. 
For example, a shorter observation period means that each observation 
will have a greater influence on the result of the VaR calculation (as 
compared to a longer observation period), such that periods of 
unusually high or low volatility could result in unusually high or low 
VaR estimates.\298\ Longer observation periods, however, can lead to 
data collection problems, if sufficient historical data is not 
available.\299\ By requiring a fund using historical VaR to have at 
least three years of historical market data, the proposed rule is 
designed to require a fund to base its VaR estimates on a sufficient 
number of observations, while also recognizing the concern that 
requiring a longer historical period could make it difficult for a fund 
to obtain sufficient historical data to estimate VaR for the 
instruments in its portfolio.\300\
---------------------------------------------------------------------------

    \297\ Proposed rule 18f-4(c)(11)(ii)(C).
    \298\ See Linsmeier & Pearson, supra note 291, at 59 (noting 
that, because historical simulation relies directly on historical 
data, ``[a] danger is that the price and rate changes in the last 
100 (or 500 or 1,000) days might not be typical. For example, if by 
chance the last 100 days were a period of low volatility in market 
rates and prices, the VAR computed through historical simulation 
will understate the risk in the portfolio.'').
    \299\ See Dowd, supra note 255, at 68 (noting that ``[a] long 
sample period can lead to data collection problems. This is a 
particular concern with new or emerging market instruments, where 
long runs of historical data don't exist and are not necessarily 
easy to proxy.'').
    \300\ See also Minnich, supra note 254, at 43 (noting that for 
historical simulation, ``[l]onger periods of data have a richer 
return distribution while shorter periods allow the VAR to react 
more quickly to changing market events'' and that ``[t]hree to five 
years of historical data are typical.'') See also Darryll Hendricks, 
Evaluation of Value-at-Risk Models Using Historical Data, FRBNY 
Econ. Policy Rev. (Apr. 1996), at 44 (finding that, when using 
historical VaR, ``[e]xtreme [confidence interval] percentiles such 
as the 95th and particularly the 99th are very difficult to estimate 
accurately with small samples'' and that the complete dependence of 
historical VaR models on historical observation data ``to estimate 
these percentiles directly is one rationale for using long 
observation periods.'').
---------------------------------------------------------------------------

    The proposed rule would also require a fund to use a 99% confidence 
level for its VaR test.\301\ Many regulatory schemes that use VaR 
require a 99% confidence level, which can be expected to result in 
higher estimates of absolute losses than a lower confidence 
interval.\302\ As discussed above, the VaR test under the proposed 
rule's risk-based portfolio limit is designed to focus on the 
relationship between a fund's securities VaR and its full portfolio 
VaR, rather than to serve as an absolute measure of potential losses. 
Although the VaR test is not designed to provide an estimate of a 
fund's potential absolute losses, we believe that a 99% confidence 
interval would be more appropriate, as compared to a lower confidence 
interval, because a higher confidence level would provide a stronger 
indication that a fund's derivatives use, in aggregate, can be expected 
to have a risk-mitigating effect on the fund's exposure to market risk 
on the days on which the fund's securities portfolio would be expected 
to incur the greatest losses.
---------------------------------------------------------------------------

    \301\ Proposed rule 18f-4(c)(11)(ii)(B).
    \302\ For example, UCITS funds that use the relative VaR or 
absolute VaR approach are required to calculate the fund's VaR using 
a 99% confidence interval. See CESR Global Guidelines, supra note 
162, at 26 (requiring funds that use the relative VaR or absolute 
VaR approach to calculate VaR using a ``one-tailed confidence 
interval of 99%''). As noted in section III.B.2.a above and in 
section IV.E below, the VaR test under the risk-based portfolio 
limit is similar in certain respect to the relative VaR approach for 
UCITS funds.
---------------------------------------------------------------------------

    The proposed rule also would require a fund to calculate VaR using 
a time horizon of at least 10 trading days but not more than 20 trading 
days.\303\ We understand that when VaR is used for risk management 
purposes, the time horizon that is selected by the user typically 
reflects the expected holding period for an instrument (or portfolio of 
instruments).\304\ The holding period, in turn, may depend on factors 
such as the liquidity of an instrument and the purpose for which it is 
held, which may vary across different types of instruments in a 
portfolio.\305\ When VaR

[[Page 80922]]

is used for regulatory purposes, however, the applicable regulation 
typically specifies a time horizon or range of permissible time 
horizons (even in cases where the regulated entity may hold instruments 
or a portfolio having a longer or shorter expected holding period), in 
order to promote consistency across regulated entities and use a time 
horizon for the VaR calculation is appropriate in light of the 
underlying regulatory purpose.\306\ In light of this, we considered the 
factors discussed below in determining to propose a 10- to 20-day time 
horizon for a fund's VaR model under the proposed rule.
---------------------------------------------------------------------------

    \303\ Proposed rule 18f-4(c)(11)(ii)(B).
    \304\ See, e.g., infra at discussion accompanying notes 295-296.
    \305\ See, e.g., Bank for International Settlements, Basel 
Committee on Banking Supervision, Messages from the Academic 
Literature on Risk Measurement for the Trading Book, Working Paper 
No. 19 (Jan. 31, 2011) (``Basel Risk Measurement Working Paper'') 
(noting, based on a survey of academic literature on VaR-based 
approaches to risk management, that ``[t]here seems to be consensus 
among academics and the industry that the appropriate horizon for 
VaR should depend on the characteristics of the position'').
    \306\ The underlying regulatory purpose could include, for 
example, limiting the amount of market risk that could be incurred 
by an investment vehicle and thus mitigating the risk of potential 
losses that investors would bear, or establishing capital 
requirements. See infra at notes 310-311 and accompanying text.
---------------------------------------------------------------------------

    First, we understand that very short time horizons (e.g., one day) 
can be less effective at capturing the effects of fluctuations in risk 
factors on VaR, particularly with respect to out-of-the-money options 
(or implicit options, for securities and other investments that contain 
option-like features). At the same time, we understand that, while VaR 
estimates of potential losses typically increase as the time horizon 
increases over short- to medium-term periods, over longer periods VaR 
estimates of potential losses may eventually decrease.\307\ Thus, we 
considered that if the proposed rule did not specify a time horizon or 
range of acceptable time horizons, some funds that rely on the risk-
based portfolio limit could select a time horizon for their VaR model 
that is either too short or too long and thereby underestimate 
potential losses, as reflected in the VaR test. In light of these 
concerns, we believe it would be appropriate for the proposed rule to 
place some limitations on a fund's ability to use shorter or longer 
time horizons that could produce less reliable VaR estimates, while 
also providing some flexibility for a fund to select a time horizon 
that is appropriate based on the fund's particular 
characteristics.\308\
---------------------------------------------------------------------------

    \307\ See, e.g., Dowd, supra note 255, at 73-74 (showing how 
parametric VaR can initially result in increasing estimates of loss 
as the time horizon increases, but that estimates of loss can 
decrease over longer time horizons). Estimated VaR losses over 
longer time horizons can also be affected by the tendency of 
volatility to be mean-reverting over time. See generally Stephen 
Figlewski, Estimation Error in the Assessment of Financial Risk 
Exposure (2003).
    \308\ Thus, for example, a fund that invests a greater 
proportion of its assets in liquid instruments and trades frequently 
might choose a 10-day holding period, while a fund that invests in 
less liquid instruments or trades less frequently might choose a 
longer holding period (but not longer than 20 days).
---------------------------------------------------------------------------

    Second, we considered that the VaR test is designed to provide an 
indication, through a fund's comparison of its securities VaR to its 
full portfolio VaR, that the fund's derivatives transactions, in 
aggregate, have the effect of reducing the fund's exposure to market 
risk. This means that the VaR test requires a portfolio-level 
calculation, and for such purposes the fund would need to select a 
single time horizon, even if the fund expected to hold different 
instruments in its portfolio for different lengths of time.\309\ A 
consequence of this is that even if a fund uses VaR for internal risk-
management purposes and applies different time horizons to different 
types of instruments for such purposes, the fund nevertheless would 
need to select a single holding period for purposes of the VaR test.
---------------------------------------------------------------------------

    \309\ While a fund could in theory model different instruments 
using different VaR time horizons, it is not clear that a fund would 
be able to incorporate different time horizons into a portfolio-wide 
VaR test. See, e.g., Basel Risk Measurement Working Paper, supra 
note 305 (noting, based on a survey of academic literature on VaR-
based approaches to risk management, that ``[a]t present, there is 
no widely accepted approach for aggregating VaR measures based on 
different horizons'').
---------------------------------------------------------------------------

    Third, we considered the time horizons in other regulatory regimes 
that use VaR. In this regard, we noted that the most commonly used time 
horizons appear to be either 10 days or 20 days. For example, the 1996 
Market Risk Amendment to the Basel II Capital Accord, which 
contemplated banks' use of internal models for measuring market risk, 
incorporated a 10-day time horizon.\310\ For UCITS funds that rely on 
the relative VaR or absolute VaR approach, the CESR Global Exposure 
Guidelines specify a 20-day time horizon.\311\ A consequence of the use 
of 10- and 20-day time horizons under these regimes is that we believe 
that these time horizons are widely used by funds and other financial 
market participants.
---------------------------------------------------------------------------

    \310\ See BCBS Trading Book Review--Oct. 2013, supra note 272. 
The BCBS has implemented and continues to develop new standards 
which, among other things, would call for five different ``liquidity 
horizon categories'' for broad categories of risk factors, ranging 
from 10 days to one year. As noted above, however, the VaR test 
under the proposed rule effectively requires a fund to select a 
single time horizon. See supra note 272 and accompanying text.
    \311\ See CESR Global Guidelines, supra note 162, at 26 
(requiring funds that use the relative VaR or absolute VaR approach 
to calculated VaR using a ``holding period equivalent to 1 month (20 
business days''). See also infra section IV.E.
---------------------------------------------------------------------------

    In light of these considerations, including balancing concerns 
about a time horizon potentially being too long or too short with the 
benefit of providing some level of flexibility for funds to select a 
time horizon in light of their particular characteristics, we believe 
the proposed rule's requirement that the time horizon for the VaR model 
used by a fund that complies with the risk-based portfolio limit is 
appropriate.
    Finally, regardless of which VaR model the fund chooses, the fund 
must apply its VaR model consistently when calculating the fund's 
securities VaR and the fund's full portfolio VaR. This requirement is 
designed to prevent a fund from using different models to manipulate 
the results of the VaR test--for example, by overestimating the fund's 
securities VaR using one VaR model and underestimating its full 
portfolio VaR using a different model in order to take on riskier 
derivatives positions. In addition, because the VaR test would be used 
to focus on the relationship between the fund's securities VaR and its 
full portfolio VaR as discussed above, requiring the fund to use the 
same VaR model for purposes of the VaR test would help to ensure that 
the test generates comparable estimates of the fund's securities VaR 
and full portfolio VaR.
    We request comment on the proposed rule's minimum requirements 
concerning the VaR model used by the fund.
     Do funds today use VaR models for risk management purposes 
or otherwise that would meet the proposed rule's minimum requirements? 
If funds use VaR models that would not meet these requirements, how do 
they differ?
     Should the proposed rule specify a particular VaR model(s) 
that funds must use (i.e., a historical simulation, Monte Carlo 
simulation, or parametric methodology)? If so, which methodology (or 
methodologies) and why?
     A fund would only be permitted to use a historical VaR 
methodology if at least three years of historical data is available. Do 
commenters agree that this is an appropriate requirement? Would 
requiring three years of historical data make it difficult to model 
some instruments? Should we require that a fund have additional 
historical return data in order to use a historical VaR methodology? 
Conversely, would less than three years of historical return data be 
sufficient?
     The proposed rule would require that the VaR model used by 
the fund (whether based on the historical

[[Page 80923]]

simulation, Monte Carlo simulation, or parametric method) incorporate 
all significant, identifiable market risk factors associated with a 
fund's investments. Do commenters agree that this is an appropriate 
standard? Is it sufficiently clear?
     The proposed rule would provide a non-exclusive list of 
risk factors that may be relevant in light of a fund's strategy and 
investments, including equity price risk, interest rate risk, credit 
spread risk, foreign currency risk and commodity price risk, all 
material risks arising from the nonlinear price characteristics of 
options, and positions with embedded optionality, and the sensitivity 
of the market value of the fund's derivatives to changes in volatility 
or other material market risk factors. Do commenters agree that these 
are appropriate risk factors? Are there others we should include? 
Rather than include a non-exclusive list of risk factors that funds 
must consider, should we specify in any final rule the particular risk 
factors that must be included in specified circumstances? Would it be 
possible to do so in a way that would address the diversity of funds 
and their strategies?
     The proposed rule would require a fund to use a 99% 
confidence level for its VaR test. Do commenters agree that this is an 
appropriate confidence level? In particular, should we permit funds to 
use a lower confidence interval? Why or why not?
     The proposed rule would require a fund to calculate VaR 
using a time horizon of at least 10 trading days, but not more than 20 
trading days. Do commenters agree that it is appropriate to provide a 
range of trading days, to give funds some flexibility in selecting a 
time horizon based on the fund's own particular characteristics? Do 
commenters agree that a range of 10 to 20 trading days would be 
appropriate? Should the number of trading days be lower than 10, or 
higher than 20? Should the number of trading days be a specific number, 
instead of a range? Why or why not? If so, which specific number would 
be appropriate? Should we, for example, specify 10 or 20 trading days?
     Regardless of which VaR model the fund chooses, the 
proposed rule would require the fund to apply its VaR model 
consistently when calculating the fund's securities VaR and the fund's 
full portfolio VaR. Do commenters agree that this requirement is 
appropriate? If not, how could we otherwise prevent the VaR test from 
being easily manipulated?
     We believe that the proposed rule affords appropriate 
flexibility for funds to tailor the VaR test in light of a fund's 
strategy, investments and other relevant factors. Does this flexibility 
increase the risk that funds will be able to game or manipulate the 
test in order to obtain riskier investment exposures? If so, should the 
rule impose more specific requirements on a fund's VaR model or its 
parameters, and how?
     Should the proposed rule place restrictions on a fund's 
ability to change its VaR model? For example, should changes be 
permitted only with the approval of the fund's derivatives risk 
manager, or subject to other approval or oversight requirements?
c. 300 Percent Exposure Limit Under the Risk-Based Portfolio Limitation
    A fund that relies on the risk-based portfolio limit would be 
required to limit its exposure to not more than 300% of the fund's net 
assets, rather than 150% (as would be required under the exposure-based 
portfolio limit). While we believe that the VaR test generally would 
indicate that the fund's derivatives transactions do not, in the 
aggregate, result in an increase in the speculative character of the 
fund as discussed above, we also believe it is appropriate for the 
risk-based portfolio limit to include an outside limit on exposure as 
discussed in this section.
    If the risk-based portfolio limit did not include an outside limit 
on exposure, a fund might be able to use strategies that may not 
produce significant measurable amounts of VaR during normal market 
periods, but which employ derivatives exposures at a level that could 
subject a fund to a significant speculative risk of loss if markets 
become stressed. For example, some funds use strategies that entail 
large long and short notional exposures, with the expectation that the 
risk of the fund's long positions is largely offset by the fund's short 
positions during normal market conditions, and this may result in the 
fund having a low full portfolio VaR. During periods of market stress, 
however, correlations across different positions may break down, 
leading to the possibility of significant losses and payment 
obligations with respect to the fund's derivatives transactions.\312\ 
Although a fund pursuing such a strategy might be considered hedged or 
balanced, we believe that its activities may be speculative--and that 
its use of derivatives could implicate the undue speculation concern 
expressed in section 1(b)(7) of the Act--if the fund's derivatives 
exposures are very large in comparison to the fund's net assets. In 
these circumstances the fund's use of derivatives could create an 
amount of leverage--and a resulting potential for large losses and 
payment obligations under derivatives--that we believe under some 
circumstances or market conditions could ``increase unduly the 
speculative character'' of the fund's securities issued to common 
shareholders. Coupling the VaR test with a 300% exposure limit, instead 
of permitting such a fund to obtain unlimited exposures, is designed to 
address these considerations by placing an outside limit on the fund's 
exposure that is not based on a VaR or other risk-based assessment.
---------------------------------------------------------------------------

    \312\ See, e.g., supra note 128 and accompanying discussion.
---------------------------------------------------------------------------

    We believe that the proposed rule's outside exposure limit of 300% 
is important to address possible concerns regarding the effectiveness 
of the VaR test in all possible circumstances and market conditions 
while also preserving the utility of the risk-based portfolio limit for 
funds that use derivatives, in aggregate, to result in an investment 
portfolio that is subject to less market risk than if the fund did not 
use such derivatives. In determining to propose a 300% exposure limit 
as part of the risk-based portfolio limit we considered, as discussed 
above in connection with the exposure-based portfolio limit, that the 
vast majority of funds would be able to comply with a 150% exposure 
limit without modifying their portfolios. In considering the extent to 
which the risk-based portfolio limit should permit a fund to obtain 
additional exposure, in light of the derivatives' aggregate reduction 
in the fund's exposure to market risk, we also considered the extent to 
which funds included in the DERA sample with exposures exceeding 150% 
of net assets would appear to be able to satisfy the VaR test 
(including by modifying their portfolios to a certain extent in order 
to do so). Although the information disclosed by the sampled funds and 
otherwise available to our staff was not sufficient to allow our staff 
to calculate the funds' securities VaRs and full portfolio VaRs,\313\ 
the available information about the funds does provide an indication of 
whether the funds reasonably could be expected to comply with the VaR 
test.
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    \313\ While we have proposed in the Investment Company Reporting 
Modernization Release to obtain additional information regarding 
derivatives transactions on proposed Form N-PORT, we do not 
currently have sufficient information in a structured format to 
evaluate derivatives holdings in the DERA sample of funds discussed 
in the White Paper to estimate those funds' securities VaRs and full 
portfolio VaRs.
---------------------------------------------------------------------------

    As discussed above, most of the funds included in the analysis 
conducted by DERA staff with the highest exposures were alternative 
strategy funds, with

[[Page 80924]]

approximately 27% of these funds having exposures in excess of 150% of 
net assets, with the funds' exposures ranging up to approximately 950% 
of net assets. The funds with the highest exposures were managed 
futures funds--as noted above, three of the four funds in DERA's sample 
with exposures exceeding 500% of net assets were managed futures funds 
with exposures ranging from a little over 500% to approximately 950% of 
net assets. Managed futures funds, and other funds that use derivatives 
primarily to obtain market exposure (rather than to reduce the fund's 
exposure to market risk) and whose physical holdings consist mainly of 
cash and cash equivalents, would not satisfy the VaR test.\314\
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    \314\ A fund that holds only cash and cash equivalents and 
derivatives would not be able to satisfy the VaR test. In this case 
the fund's securities VaR would reflect the VaR of the cash and cash 
equivalents, and thus would be very low. The fund's derivatives, in 
aggregate, generally would add to, rather than reduce, the fund's 
exposure to market risk and thus generally would not result in a 
full portfolio VaR that is lower than the fund's securities VaR, as 
required under the VaR test.
---------------------------------------------------------------------------

    Alternative strategy funds with exposures exceeding 150% that 
potentially could choose to use derivatives in a manner that would 
satisfy the VaR test had lower exposures. Funds in this group with 
lower exposures included those with unconstrained bond and multi-
alternative strategies; the exposures of funds within these strategies 
that were in excess of 150% ranged from around 175% to just under 350% 
of net assets. These funds, and particularly unconstrained bond funds, 
may have securities investments that involve market risks that could be 
reduced by derivatives transactions, and thus could consider electing 
to comply with the risk-based portfolio limit (including by modifying 
their portfolios to a certain extent in order to do so). We believe 
that including a 300% exposure limit as part of the risk-based 
portfolio limit thus would appear to provide a limit that may be 
appropriate for the kinds of funds that could seek to operate under the 
risk-based portfolio limit. We note that the 300% exposure limit is 
only expected to serve as an adjunct limitation on a fund given the 
primary importance of the VaR test with respect to the risk-based 
portfolio limit. While we are seeking comment regarding the sufficiency 
of this exposure limit, we note that setting the exposure limit higher 
than 300% of net assets--in addition to potentially raising concerns 
about a fund operating with exposures at that level--would not appear 
to further the purposes of the risk-based portfolio limit. This is 
because funds in the DERA sample that have exposures substantially in 
excess of 300% of net assets would not appear to be able to satisfy the 
VaR test in any event, as discussed above. Accordingly, we believe that 
the 300% exposure limit is appropriate as a meaningfully higher limit 
than the 150% portfolio limit while providing an upper bound that does 
not appear to unduly constrain funds that may use derivatives on 
balance for risk-mitigating purposes.
    We believe, based on these considerations and those discussed above 
in section III.B.1, that the proposed rule's outside exposure limit of 
300% would address the concerns that led us to propose an exposure 
limit as part of the risk-based portfolio limit, while also preserving 
the utility of the risk-based portfolio limit for funds that use 
derivatives, in aggregate, to result in an investment portfolio that is 
subject to less market risk than if the fund did not use such 
derivatives.
    We request comment on all aspects of the proposed risk-based 
portfolio limitation's inclusion of an outside limit of 300% of net 
assets.
     Do commenters agree that an outside limit on exposure can 
mitigate the concerns we discuss above concerning fund's use of 
strategies that could be considered hedged or balanced but that might 
experience speculative losses under certain circumstances? Why or why 
not? Are there other means to address these concerns that we should 
consider either in addition to or in lieu of an outside limit on the 
fund's exposure?
     Do commenters agree that the proposed 300% outer limit on 
exposure is appropriate? Do commenters agree that a 300% exposure limit 
would address the concerns we discuss above while also preserving the 
utility of the risk-based portfolio limit for funds that use 
derivatives, in aggregate, to result in an investment portfolio that is 
subject to less market risk than if the fund did not use such 
derivatives? Should we make it higher or lower, for example 250% or 
350%, and how would a different limit address the concerns we discuss 
above?
3. Implementation and Operation of Portfolio Limitations
    The proposed rule would require, to the extent that a fund elects 
to rely on the rule, the fund's board of directors, including a 
majority of the directors who are not interested persons of the fund, 
to approve which of the two alternative portfolio limitations will 
apply to the fund.\315\ We believe that requiring a fund's board, 
including a majority of the fund's independent directors, to approve 
the fund's portfolio limitation would appropriately focus the board's 
attention on the nature and extent of a fund's use of derivatives and 
other senior securities transactions as part of its investment 
strategy. We believe that requiring the fund's board to approve a 
fund's portfolio limitation would be an appropriate role for the 
board.\316\
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    \315\ Proposed rule 18f-4(a)(5)(i).
    \316\ Other exemptive rules under the Act similarly require the 
fund's board to take certain actions in order for the fund to rely 
on the exemption provided by the rule. See, e.g., rules 18f-3, 17a-
7, 10f-3, and 2a-7.
---------------------------------------------------------------------------

    A fund relying on the rule would be required to comply with the 
applicable portfolio limitation after entering into any senior 
securities transaction, that is, any derivatives transaction or 
financial commitment transaction entered into by the fund pursuant to 
the proposed rule, or any other senior security transaction entered 
into by the fund pursuant to section 18 or 61 of the Act.\317\ A fund 
therefore would not be required to terminate or otherwise unwind a 
senior securities transaction solely because the fund's exposure 
subsequently increased beyond the exposure limits included in either of 
the portfolio limitations. The fund, however, would not be permitted to 
enter into any additional senior securities transactions while relying 
on the exemption provided by the rule unless the fund would be in 
compliance with the applicable portfolio limitation immediately after 
entering into the transaction. This aspect of the proposed rule is 
designed to prevent a fund from having to unwind or terminate a senior 
securities transaction that the fund was permitted to enter into under 
the proposed rule at a later time when terminating or unwinding the 
transactions may be disadvantageous to the fund.\318\ The Act and our 
rules

[[Page 80925]]

similarly measure compliance with certain portfolio limitations 
immediately after a fund acquires a security.\319\ However, if a fund's 
exposure exceeded the applicable exposure limit and the fund entered 
into a new senior securities transaction, including a new senior 
securities transaction that was intended to reduce the fund's exposure, 
the fund would be required to reduce its exposure so that in the 
aggregate, its exposure was in compliance with the exposure limit.\320\
---------------------------------------------------------------------------

    \317\ Proposed rule 18f-4(a)(1)(i) and (ii).
    \318\ We similarly proposed an acquisition test (in contrast to 
a maintenance test) in proposed rule 22e-4, under which a fund would 
not be permitted to acquire any less liquid asset if, immediately 
after the acquisition, the fund would have invested less than its 
three-day liquid asset minimum in three-day liquid assets. Proposed 
rule 22e-4(b)(2)(iv)(C). In the Liquidity Release we noted that 
forced sales required under a maintenance test could require the 
fund to sell the less liquid assets at prices that incorporate a 
significant discount to the assets' stated value, or even at fire 
sale prices; we also noted that, if a fund needed to rebalance its 
portfolio frequently to maintain a specified percentage of the 
fund's net assets invested in three-day liquid assets, this could 
produce unnecessary transaction costs adversely affecting the fund's 
NAV, and could cause a fund to sell portfolio assets when it is not 
advantageous to do so (e.g., when an asset's price is low, or when 
sales of an asset would have an undesirable tax impact). See 
Liquidity Release, supra note 5, at text accompanying nn.344-48. We 
similarly believe that requiring a fund to unwind or otherwise 
terminate derivatives transactions as a result of subsequent changes 
in the fund's net assets could have adverse consequences for the 
fund.
    \319\ This acquisition test (in contrast to a maintenance test) 
reflects approaches that Congress and the Commission have 
historically taken in other parts of the Investment Company Act and 
the rules thereunder. See, e.g., Investment Company Act section 5(c) 
(a registered diversified company that at the time of its 
qualification meets the diversification requirements specified in 
Investment Company Act section 5(b)(1) shall not lose its status as 
a diversified company because of any subsequent discrepancy between 
the value of its various investments and the requirements of section 
5(b)(1), so long as any such discrepancy existing immediately after 
its acquisition of any security or other property is neither wholly 
nor partly the result of such acquisition); rule 2a-7(d)(3) 
(portfolio diversification requirements of rule 2a-7 are determined 
at the time of portfolio securities' acquisition); rule 2a-7(d)(i) 
(limit on a money market fund's acquisition of illiquid securities 
if, immediately after the acquisition, the money market fund would 
have invested more than 5% of its total assets in illiquid 
securities); rule 2a-7(d)(4)(ii) and (iii) (minimum daily liquidity 
requirement and minimum weekly liquidity requirement of rule 2a-7 
are determined at the time of portfolio securities' acquisition).
    \320\ For example, suppose that a fund's exposure was initially 
140% but subsequently increased to 160% solely due to losses in the 
value of the fund's securities portfolio. The fund would not be 
required to unwind its senior securities transactions in order to 
bring its exposure below 150%. However, if the fund entered into any 
new senior securities transaction then, immediately after entering 
into such transaction, the fund would be required to be in 
compliance with the 150% exposure limit.
---------------------------------------------------------------------------

    We request comment on all aspects of the operation of the proposed 
portfolio limitations.
     Does requiring a fund to comply with the proposed rule's 
portfolio limitations immediately after entering into any senior 
securities transaction pose any operational challenges, for example, in 
determining the notional amount of the transaction, the fund's net 
assets, or the fund's securities VaR or full portfolio VaR (if 
applicable)?
     The proposed rule would not require a fund to terminate a 
derivatives transaction if the fund complied with the applicable 
portfolio limitation immediately after entering into the transaction, 
even if, for example, the fund's net assets later declined with the 
result that the fund's exposure at that later time exceeded the 
relevant exposure limit. Do commenters agree that this is appropriate? 
Conversely, should we instead require a maintenance test for notional 
amounts such that funds would be required to adjust their derivatives 
transactions if the exposure exceeds 150% of net assets for longer than 
a certain period of time, even if the fund has not entered into any 
senior securities transactions? If so, should we consider including a 
cushion amount--for example, by only requiring a fund to adjust its 
positions if its exposure reaches a higher level, such as 175%? Should 
we limit the time period (e.g., to 30 days, 60 days, or 90 days) in 
which a exposure could exceed 150% of net assets (or 300% under the 
risk-based portfolio limit) as a result of changes in the fund's net 
assets so that a fund cannot persistently exceed the rule's exposure 
limits? Would such an approach better promote investor protection? 
Would there be operational challenges with this requirement?
     If a fund's exposure were to exceed the applicable 
exposure limit, should the proposed rule permit the fund to engage in a 
series of derivatives transactions where those transactions ultimately 
would reduce the fund's exposure below the applicable exposure limit, 
even if the fund's exposure were not below the applicable limit 
immediately after entering into certain of these transactions, in order 
to make it easier for funds to reduce their exposure under multiple 
derivatives transactions on a pro rata basis? If so, how would we 
permit these kinds of transactions without providing a means for funds 
to maintain exposure levels in excess of the applicable exposure limit 
for long periods of time? Should we, for example, permit funds to 
engage in a group of substantially contemporaneous derivatives 
transactions where the fund's exposure is below 150% immediately after 
entering into the group of transactions? Should we permit a fund to 
engage in derivatives transactions that reduce the fund's exposure, 
even if the reduced exposure still exceeds the applicable exposure 
limit? Could funds use such a provision to maintain exposure amounts in 
excess of the rule's limits for long periods of time? Could we address 
that concern by, for example, permitting a fund to engage in these 
exposure-reducing derivatives transactions provided that the fund 
brings its exposure below the applicable limit within a specified 
period of time, like thirty days?

C. Asset Segregation Requirements for Derivatives Transactions

    In addition to requiring funds to comply with one of two 
alternative portfolio limitations designed to impose a limit on the 
amount of leverage a fund could obtain through derivatives transactions 
and other senior securities transactions as described in section 
III.B.1.c above, the proposed rule would require a fund that enters 
into derivatives transactions in reliance on the rule to manage the 
risks associated with its derivatives transactions by maintaining an 
amount of certain assets (defined in the proposed rule as ``qualifying 
coverage assets'') designed to enable the fund to meet its obligations 
arising from such transactions.\321\ This requirement is designed to 
address the asset sufficiency concern reflected in section 1(b)(8) of 
the Act.\322\ In addition, the asset segregation requirement in the 
proposed rule would help to address the undue speculation concern 
reflected in section 1(b)(7) of the Act to the extent that funds limit 
their derivatives usage in order to comply with the asset segregation 
requirements.\323\
---------------------------------------------------------------------------

    \321\ Proposed rule 18f-4(a)(2), (c)(6), (c)(8), (c)(9).
    \322\ See section 1(b)(8) of the Investment Company Act. The 
asset segregation requirements in the proposed rule also are based 
in part on the considerations that informed our guidance in Release 
10666 that maintaining assets in the segregated account would help 
``assure the availability of adequate funds to meet the 
obligations'' arising from the trading practices described in that 
release. See Release 10666, supra note 20, at n.8.
    \323\ See section 1(b)(7) of the Investment Company Act. Under 
the proposed rule, a fund would be required to maintain a certain 
amount of qualifying coverage assets--which generally would be 
required to be cash and cash equivalents--with respect to its 
derivatives transactions. A fund could determine not to enter into 
derivatives transactions that would otherwise be permitted under the 
proposed rule's exposure limits in order to avoid having to maintain 
qualifying coverage assets for the transactions. In addition, under 
certain circumstances, the asset segregation requirements could 
limit a fund's ability to enter into a derivatives transaction that 
would otherwise be permitted under the proposed rule's exposure 
limits because the fund does not have and is unable to acquire 
sufficient qualifying coverage assets to comply with the proposed 
rule. The proposed rule also would address concerns about leverage 
directly, though the proposed rule's portfolio limitations discussed 
in section V.B.1.
---------------------------------------------------------------------------

    To rely on the proposed rule, a fund would be required to manage 
the risks associated with its derivatives transactions by maintaining a 
certain amount of qualifying coverage assets for each derivatives 
transaction, determined pursuant to policies and procedures approved by 
the fund's board of directors.\324\ For each derivatives transaction, a 
fund would be required to maintain qualifying coverage assets with a 
value equal to the amount that would be payable by the fund if the fund 
were to exit the derivatives transaction as of the time of 
determination and an

[[Page 80926]]

additional amount that represents a reasonable estimate of the 
potential amount payable by the fund if the fund were to exit the 
derivatives transaction under stressed conditions.\325\
---------------------------------------------------------------------------

    \324\ See proposed rule 18f-4(a)(2), (a)(5)(ii), (c)(6), (c)(8), 
(c)(9).
    \325\ Proposed rule 18f-4(a)(2), (c)(6), (c)(8), (c)(9).
---------------------------------------------------------------------------

    Qualifying coverage assets for derivatives transactions would need 
to be identified on the books and records of the fund at least once 
each business day.\326\ With certain exceptions, the proposed rule 
would define qualifying coverage assets for derivatives transactions to 
mean cash and cash equivalents because, as further described below, 
these assets are extremely liquid and may be less likely to experience 
volatility in price or decline in value in times of stress than other 
types of assets.\327\ The proposed rule, by requiring a fund to hold a 
sufficient amount of these types of assets, is designed to enable the 
fund to meet its obligations under its derivatives transactions.\328\
---------------------------------------------------------------------------

    \326\ Proposed rule 18f-4(a)(2).
    \327\ See proposed rule 18f-4(c)(8); infra note 369 and 
accompanying text. The exceptions to the requirement to maintain 
cash and cash equivalents, discussed below, are for derivatives 
transactions under which a fund may satisfy its obligation by 
delivering a particular asset, in which case that particular asset 
would be a qualifying coverage asset. See proposed rule 18f-4(c)(8).
    \328\ We note that, pursuant to proposed rule 22e-4, funds 
subject to that rule would be required to consider, in assessing the 
liquidity of a position in a particular portfolio asset, whether the 
fund invests in the asset because it is connected with an investment 
in another portfolio asset. See proposed rule 22e-4(b)(2)(ii)(I). As 
explained in more detail in the Liquidity Release, assets segregated 
to cover derivatives and other transactions would be classified, for 
purposes of rule 22e-4, using the liquidity of the transaction they 
are covering because such assets would only be available for sale to 
meet fund redemptions once the related transaction is disposed of or 
unwound. See Liquidity Release, supra note 5, at section III.B.2. 
Thus, for purposes of proposed rule 22e-4, the liquidity of 
qualifying coverage assets segregated pursuant to proposed rule 18f-
4 to cover derivatives transactions would be classified using the 
liquidity of the corresponding derivatives transactions. Similarly, 
the liquidity of qualifying coverage assets segregated pursuant to 
proposed rule 18f-4 to cover a financial commitment transaction 
would be classified using the liquidity of the corresponding 
financial commitment transaction.
---------------------------------------------------------------------------

    The proposed rule's approach to asset segregation is designed to 
provide a flexible framework that would allow funds to apply the 
requirements of the proposed rule to particular derivatives 
transactions used by funds at this time as well as those that may be 
developed in the future as financial instruments and investment 
strategies change over time. As discussed in more detail below, the 
proposed rule's approach to asset segregation is designed to provide 
this flexibility by requiring funds to determine the amount of 
qualifying coverage assets in a way that can be applied by funds to 
various types of transactions and by permitting these amounts to be 
determined in accordance with board-approved policies and procedures. 
The proposed rule's approach to asset segregation also is consistent 
with the views expressed by many commenters on the Concept Release, as 
discussed below.\329\
---------------------------------------------------------------------------

    \329\ See infra note 332.
---------------------------------------------------------------------------

    We believe that requiring the fund's board to approve the policies 
and procedures for asset segregation, including a majority of the 
fund's independent directors, appropriately would focus the board's 
attention on the fund's management of its obligations under derivatives 
transactions and the fund's use of the exemption provided by the 
proposed rule. We believe that requiring the fund's board to approve 
these policies and procedures, in conjunction with the board's 
oversight of the fund's investment adviser more generally, would be an 
appropriate role for the board.\330\
---------------------------------------------------------------------------

    \330\ Other exemptive rules under the Act similarly require the 
fund's board to take certain actions in order for the fund to rely 
on the exemption provided by the rule. See, e.g., rules 18f-3, 17a-
7, 10f-3, and 2a-7.
---------------------------------------------------------------------------

1. Coverage Amount for Derivatives Transactions
    Under the proposed rule, a fund would be required to manage the 
risks associated with its derivatives transactions by maintaining 
qualifying coverage assets for each derivatives transaction in an 
amount equal to the sum of (1) the amount that would be payable by the 
fund if the fund were to exit the derivatives transaction at the time 
of determination (the ``mark-to-market coverage amount''), and (2) a 
reasonable estimate of the potential amount payable by the fund if the 
fund were to exit the derivatives transaction under stressed conditions 
(the ``risk-based coverage amount'').\331\ The proposed rule's asset 
coverage requirements reflect that, although a fund will be able to 
determine its current mark-to-market payable under a derivatives 
transaction on a daily basis, the fund's investment in the derivatives 
transaction can involve future losses, and thus potential payments by 
the fund to counterparties, that will depend on future changes related 
to the derivative's reference asset or metric.
---------------------------------------------------------------------------

    \331\ Proposed rule 18f-4(a)(2), (c)(6), (c)(9).
---------------------------------------------------------------------------

    The proposed rule's asset coverage requirements for derivatives 
transactions also are consistent in many respects with the approach 
suggested by many commenters to the Concept Release.\332\ These 
commenters suggested that, for derivatives transactions, a fund should 
segregate its daily mark-to-market liability as well as an additional 
amount, sometimes referred to as a ``cushion'' by commenters, designed 
to address future potential losses.
---------------------------------------------------------------------------

    \332\ See, e.g., ICI Concept Release Comment Letter, at 11 
(``The optimal amount of cover for many instruments may be somewhere 
in between full notional and mark to market amounts. It should be an 
amount expected to cover the potential loss to the fund, determined 
with a reasonably high degree of certainty. This amount--mark-to-
market plus a `cushion'--is more akin to the way portfolio officers 
and risk managers assess the portfolio risks created through the use 
of derivatives.''); SIFMA Concept Release Comment Letter, at 4 (``. 
. . the AMG recommends that the Commission formulate a standard for 
asset segregation that would be calculated as the sum of (i) the 
current mark-to-market value of the derivative (representing the 
indebtedness on the instrument), plus (ii) a `cushion' amount that 
would reflect potential future indebtedness); Comment Letter of 
AlphaSimplex Group, LLC on Concept Release (Nev. 7, 2011) (File No. 
S7-33-11) (``AlphaSimplex Concept Release Comment Letter''), 
available at http://www.sec.gov/comments/s7-33-11/s73311-41.pdf, at 
5 (``So long as the derivative in question has daily liquidity and 
daily margin calls . . . a fund may segregate assets equal to the 
sum of the daily marked-to-market obligation of the fund plus an 
allowance for some daily price move that could increase the fund's 
outstanding obligations . . .''); BlackRock Concept Release Comment 
Letter, at 5 (``Under a principles-based approach, the amount that 
would need to be segregated is the net payment amount to which the 
fund is potentially exposed under plausible scenarios, plus a risk 
premium.''); Vanguard Concept Release Comment Letter, at 7 (``In our 
view, a fund's potential future exposure is the market value of the 
derivative (calculated daily) plus an additional amount that takes 
into account the derivative's potential intra-day price changes 
based on its volatility during reasonably foreseeable market 
conditions.'').
---------------------------------------------------------------------------

a. Mark-to-Market Coverage Amount
    Under the proposed rule, the ``mark-to-market coverage amount'' for 
a particular derivatives transaction, at any time of determination, 
would be equal to the amount that would be payable by the fund if the 
fund were to exit the derivatives transaction at such time.\333\ We 
expect that the mark-to-market coverage amount generally would be 
consistent with a fund's valuation of a derivatives transaction because 
the amount of a fund's mark-to-market coverage amount would generally 
correspond to the amount of the fund's

[[Page 80927]]

liability with respect to the derivatives transaction.\334\ The 
proposed rule's requirement that the fund manage the risks associated 
with its derivatives transactions by maintaining qualifying coverage 
assets with a value equal to the fund's mark-to-market coverage amount 
thus is designed to require the fund to have assets sufficient to meet 
its obligations under the derivatives transaction, which may include 
margin or similar payments demanded by the fund's counterparty as a 
result of mark-to-market losses, or payments that the fund may make in 
order to exit the transaction. A fund would be required to calculate 
the mark-to-market coverage amount at least once each business day 
under the proposed rule in order to provide the fund with a reasonably 
current estimate of the amount that may be payable by the fund with 
respect to the derivatives transaction.\335\
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    \333\ Proposed rule 18f-4(c)(6). In some cases the fund would 
not be required to make any payments if the fund were to exit the 
derivatives transaction, such as where the fund invested in a swap 
that appreciates in value and the fund determines that it would 
receive a payment if it were to exit the transaction at that time. 
In this case the mark-to-market coverage amount would be equal to 
zero, but the fund would still be required to consider the risk-
based coverage amount for such transaction, as discussed below. The 
mark-to-market coverage amount should reflect any accrued but unpaid 
premiums or other similar periodic payments owed under the 
derivatives transaction, as these amounts would influence the amount 
the fund would pay if it were to exit the derivatives transaction.
    \334\ We believe that the mark-to-market coverage amount also 
would generally be consistent with the practices of funds that 
segregate the mark-to-market liability associated with a derivatives 
transaction. See, e.g., Rafferty Concept Release Comment Letter, at 
12 (``For example, because the swap transactions in which the 
Direxion Trusts engage are fully cash settled, the Direxion Trusts 
segregate: (1) The amount (if any) by which the swap is out of the 
money to the fund (i.e., the estimated amount that the fund would be 
required to pay upon an early termination, hereinafter referred to 
as the ``fund's out of the money amount''), marked-to-market daily, 
plus (2) the amount of any accrued but unpaid premiums or similar 
periodic payments, net of any accrued but unpaid periodic payment 
payable by the counterparty.''); Loomis Concept Release Comment 
Letter (indicating that the mark-to-market value of the derivative 
contract covers ``the amount of the unrealized gain or loss on the 
transaction'').
    \335\ Proposed rule18f-4(a)(2). We expect that funds would 
calculate their mark-to-market coverage amount as part of their 
determination of their net asset value, for those funds that 
calculate their net asset value each day. In addition, although the 
proposed rule does not require a fund to calculate the mark-to-
market coverage amount more than once each business day, a fund may 
determine to calculate this amount more frequently.
---------------------------------------------------------------------------

    For example, if a fund has a swap position that has moved against 
the fund (i.e., decreased in value) as a result of a change in the 
market value of the underlying reference asset, the fund's mark-to-
market coverage amount would generally be equal to the fund's liability 
with respect to the swap because that would be the amount payable by 
the fund if the fund were to exit the swap at that time. The mark-to-
market coverage amount thus would reflect the amount that would be 
payable by the fund based on market values and conditions existing at 
the time of determination. We understand that in many cases funds can 
readily calculate such amounts because they are already calculating 
their liability under the derivatives transaction for purposes of 
determining their net asset value, and that such mark-to-market amounts 
may reflect the amounts that would be payable by the fund at such time 
if the fund were to exit the derivatives transaction due to a default 
or pursuant to other actions by the fund, such as a negotiated 
agreement with the fund's counterparty, a transfer to another party, or 
a close out of the position through execution of an offsetting 
transaction.
    As another example, if a fund has written an option, it will 
generally have received a premium payment that would represent the 
option's fair value at that time. The amount of the premium initially 
received by the fund for writing the option thus would represent the 
fund's mark-to-market coverage amount at the inception of the 
transaction because it would represent the amount that would be payable 
by the fund at that time if the fund were to exit the transaction (in 
this case, by purchasing an offsetting option).\336\ The fund generally 
would be able to satisfy the proposed rule's requirement to maintain 
qualifying coverage assets with a value equal to the fund's mark-to-
market coverage amount at the inception of the trade by maintaining the 
premium it received for writing the option because the mark-to-market 
coverage amount, at that time, would generally equal the amount of such 
premium received. If the option moved against the fund, however, the 
amount that would be payable by the fund if the fund were to exit the 
transaction would increase, and this increased amount would represent 
the fund's mark-to-market coverage amount.
---------------------------------------------------------------------------

    \336\ See, e.g., Options Clearing Corporation, Understanding 
Stock Options (1994), available at http://www.cboe.com/learncenter/pdf/understanding.pdf, at 8 (noting that the holder or writer of an 
exchange-traded option ``can close out his position at any time 
simply by making an offsetting, or closing, transaction'' which 
``cancels out an investor's previous position as the holder or 
writer of the option'').
---------------------------------------------------------------------------

    Under the proposed rule, if a fund has entered into a netting 
agreement that allows the fund to net its payment obligations with 
respect to multiple derivatives transactions, the mark-to-market 
coverage amount for all derivatives transactions covered by the netting 
agreement could be calculated on a net basis, to the extent such 
calculation is consistent with the terms of the netting agreement.\337\ 
This aspect of the proposed rule thus is designed so that the mark-to-
market coverage amount more accurately reflects the fund's current net 
amounts payable with respect to the derivatives transactions covered by 
such netting agreements.\338\ The proposed rule would only allow a fund 
to net derivatives transactions for purposes of determining mark-to-
market coverage if the fund has a netting agreement that allows the 
fund to net its payment obligations with respect to such transactions 
because, absent such an agreement, the fund generally would not have 
the right to net its payment obligations and could be required to 
tender the full amount payable under all of its derivatives 
transactions.
---------------------------------------------------------------------------

    \337\ Proposed rule 18f-4(c)(6)(i). Under the proposed rule, the 
total amount of a fund's qualifying coverage assets must equal at 
least the sum of the fund's aggregate mark-to-market coverage 
amounts and risk-based coverage amounts. Proposed rule 18f-4(a)(2). 
Thus, qualifying coverage assets could not be used to cover more 
than one derivatives transaction unless the transactions are subject 
to a netting agreement and the fund calculates its coverage amounts 
with respect to such transactions on a net basis. In addition, 
qualifying coverage assets used to cover a derivatives transaction 
could not also be used to cover a financial commitment transaction. 
Proposed rule 18f-4(c)(8).
    \338\ See also section III.D.
---------------------------------------------------------------------------

    The proposed rule would also allow a fund to reduce the mark-to-
market coverage amount for a derivatives transaction by the value of 
any assets that represent variation margin or collateral to cover the 
fund's mark-to-market loss with respect to the transaction.\339\ This 
aspect of the proposed rule would allow a fund to receive credit for 
assets that the fund posts to cover the fund's current obligations 
under the derivatives transaction, and which would be applied as 
security for, or to satisfy, those obligations under the derivatives 
transaction.\340\ For example, if a fund that has entered into an OTC 
swap and has delivered collateral equal to its mark-to-market loss on 
the OTC swap, the fund generally would not also be required to 
segregate qualifying coverage assets with respect to the swap's mark-
to-market coverage amount, because the collateral delivered

[[Page 80928]]

would equal the amount payable by the fund, based on market conditions, 
if the fund were to exit the transaction at that time. As another 
example, if a fund that has invested in a futures contract posts 
variation margin to settle its daily margin obligations under the 
futures contract, the fund would not be required to also segregate 
qualifying coverage assets under the proposed rule to cover this same 
mark-to-market amount under the proposed rule.\341\
---------------------------------------------------------------------------

    \339\ Proposed rule 18f-4(c)(6)(ii).
    \340\ The custody of fund assets is regulated by section 17(f) 
of the Act and the rules thereunder. Section 17(f) generally 
requires a fund to place and maintain its securities and similar 
investments in the custody of a qualified custodian of the type 
specified in section 17(f) and the rules thereunder. When we refer 
in this Release to assets being ``posted'' or ``delivered,'' as 
margin or collateral, we are referring to a fund's posting or 
delivering those assets in compliance with the requirements of 
section 17 and the rules thereunder. We understand, for example, 
that in order to comply with these requirements in respect of non-
centrally cleared OTC derivatives, funds generally do not deliver 
collateral directly to their counterparties, but instead hold posted 
collateral in a custody account (maintained with the fund's bank 
custodian) that is administered pursuant to a tri-party control 
agreement among the fund, its custodian and its counterparty, under 
which the counterparty maintains a security interest in the 
collateral, but may only have access to the collateral in the event 
of a fund's default.
    \341\ Depending on the rules of the applicable futures exchange 
and local law, a variation margin payment with respect to a futures 
transaction may be deemed to settle the fund's liability for the 
daily mark-to-market loss on the futures transaction, and such a 
payment once made would also eliminate the fund's liability under 
the futures transaction. A fund that paid variation margin to settle 
the full amount of its mark-to-market loss on a futures transaction 
would not, at that time, have to pay any additional amount if the 
fund were to exit the transaction. If, at the time the fund 
determines its mark-to-market coverage amount, the fund would be 
required to pay an additional amount in excess of variation margin 
to exit the futures transaction, then the fund would need to have 
qualifying coverage assets in respect of such additional amount in 
order to comply with the mark-to-market coverage requirement.
---------------------------------------------------------------------------

    In order to reduce the mark-to-market coverage amount, the assets 
must represent variation margin or collateral to cover the mark-to-
market exposure of the transaction. Thus, initial margin (sometimes 
referred to as an ``independent amount'' with respect to certain OTC 
derivatives transactions) would not reduce the fund's mark-to-market 
coverage amount with respect to the derivatives transaction because 
initial margin represents a security guarantee to cover potential 
future amounts payable by the fund and is not used to settle or cover 
the fund's mark-to-market exposure.\342\ Initial margin amounts would 
not be expected to be available to satisfy the fund's variation margin 
requirements under a derivatives contract absent a default by the 
fund--and thus the fund would need additional assets to cover these 
mark-to-market payments--notwithstanding that the fund had previously 
posted initial margin with respect to such derivatives 
transaction.\343\
---------------------------------------------------------------------------

    \342\ If the fund has posted variation margin or collateral in 
excess of its current liability under the derivatives transaction, 
such excess amount would not under the proposed rule reduce the 
fund's mark-to-market coverage amount for other derivatives 
transactions, except as otherwise permitted under a netting 
agreement as described above.
    \343\ The proposed rule would, however, allow a fund to reduce a 
derivative's risk-based coverage amount by the value of assets 
posted as initial margin, as discussed below.
---------------------------------------------------------------------------

    We expect that funds will be readily able to determine their mark-
to-market coverage amounts because they are already engaging in similar 
calculations on a daily basis. For example, as described in more detail 
in section II.D.1 above, funds today are determining their current 
mark-to-market losses, if any, each business day with respect to the 
derivatives for which they currently segregate assets on a mark-to-
market basis.\344\ Funds also already calculate their liability under 
derivatives transactions on a daily basis for various other purposes, 
including to satisfy variation margin requirements and to determine the 
fund's NAV. Funds also calculate their liability under derivatives 
transactions on a periodic basis in order to provide financial 
statements to investors. We generally expect that funds would be able 
to use these calculations to determine their mark-to-market coverage 
amounts.
---------------------------------------------------------------------------

    \344\ See supra section II.D.1.
---------------------------------------------------------------------------

    We request comment on all aspects of the proposed rule's 
requirements concerning the mark-to-market coverage amount.
     Is the definition of ``mark-to-market coverage amount'' 
sufficiently clear? Are there any derivatives transactions for which 
the definition of mark-to-market coverage amount would not provide an 
appropriate calculation of the amounts payable by the fund if the fund 
were to exit the transaction? Are there types of derivatives 
transactions for which funds may not be able to determine a mark-to-
market coverage amount at least once each business day as proposed?
     Although we have not incorporated accounting standards 
with respect to the determination of mark-to-market coverage amount in 
the proposed rule, the mark-to-market coverage amount generally would 
be consistent with a fund's valuation of a derivatives transaction, as 
noted above. Should we instead define a fund's mark-to-market coverage 
amount based on accounting standards? Should we, for example, define 
the term mark-to-market coverage amount to mean the amount of the 
fund's liability under the derivatives transaction? Would this approach 
result in mark-to-market coverage amounts that would differ from mark-
to-market coverage amounts determined as proposed? If so, how would 
they differ? If we were to define a fund's mark-to-market coverage 
amount based on accounting standards, are there adjustments to these 
accounting standards that we should make for purposes of the proposed 
rule?
     The proposed rule would allow a fund to determine its net 
mark-to-market coverage amount for multiple derivatives transactions if 
a fund has entered into a netting agreement that allows the fund to net 
its payment obligations for the transactions. Is this appropriate? 
Should we impose further limitations on a fund's ability to net 
transactions, including, for example, prohibiting netting across asset 
classes or across different types of derivatives? Should we, in 
contrast, permit netting more extensively? Are there other situations 
in which funds today net their obligations with derivatives 
counterparties that would not be permitted under the proposed rule and 
for which funds believe netting would be appropriate? Should we include 
specific parameters in the rule regarding the enforceability of the 
agreement in a bankruptcy or similar proceeding?
     The proposed rule would allow a fund to reduce its mark-
to-market coverage amount by the value of assets that represent 
variation margin or collateral. Is this appropriate? Should we instead 
restrict this provision to variation margin or collateral that meets 
certain minimum requirements (e.g., cash, cash equivalents, high-
quality debt securities)? Should we permit the fund to reduce its mark-
to-market coverage for initial margin?
     Should we permit a fund to reduce its mark-to-market 
coverage amount in circumstances not involving netting or posting of 
margin or collateral? Should we, for example, permit funds to reduce 
their mark-to-market coverage amount for a derivatives transaction to 
reflect gains in other transactions that the fund believes would 
mitigate such losses? If we were to permit a fund to reduce its mark-
to-market coverage amount in these circumstances, what limitations 
should we impose to assure that a fund would have liquid assets to meet 
its obligations under a particular derivatives transaction if a 
counterparty to a potentially mitigating transaction were to default on 
its obligation to the fund or that transaction did not perform in a way 
that would mitigate such losses?
     As noted above, we believe that many funds will be readily 
able to determine their mark-to-market coverage amounts because they 
today are determining their liability, if any, each business day with 
respect to the derivatives for which they apply mark-to-market 
segregation or for other purposes. Should the mark-to-market coverage 
amount be determined more than once per day? Is once per day too 
frequent? Should we require funds to make this determination at the 
same time they determine their NAV? Should closed-end funds or BDCs or 
both be subject to different requirements? If we were to permit closed-
end funds or BDCs or any other fund to determine

[[Page 80929]]

their mark-to-market coverage amounts less frequently, what additional 
limitations, if any, should we impose to assure that the funds would 
have liquid assets to meet their obligations under derivatives 
transactions?
b. Risk-Based Coverage Amount
    As discussed above, the mark-to-market coverage amount generally 
represents the amount that would be payable by the fund if the fund 
were to exit the derivatives transaction at such time. The fund's 
payment obligations under a derivatives transaction could vary 
significantly over time, however, potentially resulting in a 
significant gap between the mark-to-market coverage amount, if any, and 
the fund's future payment obligations under the derivatives 
transaction.\345\ The mark-to-market coverage amount, if any, may thus 
be substantially smaller than the potential amounts payable by the fund 
in the future under the derivatives transaction.\346\ We observed the 
argument in the Concept Release that segregating only the mark-to-
market liability ``may understate the risk of loss to the fund'' \347\ 
and many commenters suggested that we require funds to segregate assets 
in addition to a derivative's mark-to-market liability.\348\
---------------------------------------------------------------------------

    \345\ See, e.g., The Report of the Task Force on Investment 
Company Use of Derivatives and Leverage, Committee on Federal 
Regulation of Securities, ABA Section of Business Law (July 6, 2010) 
(``2010 ABA Derivatives Report''); SIFMA Concept Release Comment 
Letter.
    \346\ Moreover, there may be no mark-to-market coverage amount 
if, as a result of the appreciation of a derivatives transaction, 
the fund would not be required to make a payment (but rather would 
receive a payment from its counterparty) if the fund were to exit 
the derivatives transaction at such time.
    \347\ See Concept Release, supra note 3, at n.83.
    \348\ See supra note 332.
---------------------------------------------------------------------------

    Because the fund's mark-to-market coverage amount for a derivatives 
transaction would not reflect the potential amounts payable by the fund 
in the future under the derivatives transaction, the proposed rule 
would require a fund to segregate an additional amount called the 
``risk-based coverage amount'' that would represent a reasonable 
estimate of the potential amount payable by the fund if the fund were 
to exit the derivatives transaction under stressed conditions.\349\ A 
fund would be required to determine this amount at least once each 
business day, consistent with the timing applicable to the calculation 
of the mark-to-market coverage amount as described above, in order to 
provide the fund with a reasonably current estimate of the potential 
amounts payable under the derivatives transaction, based on the current 
market values and conditions existing at the time the fund makes this 
determination.
---------------------------------------------------------------------------

    \349\ Proposed rule 18f-4(a)(2), (c)(9).
---------------------------------------------------------------------------

    This risk-based coverage requirement in the proposed rule is 
consistent with the views expressed by several commenters to the 
Concept Release that funds should segregate, not only their current 
liability under the contract, but also an additional amount meant to 
cover future losses.\350\ Several commenters recognized that a fund may 
be obligated to make future payments in excess of its current 
liabilities under a derivatives transaction.\351\ For example, one 
commenter stated that funds should ``segregate not just the mark-to-
market value, but also an additional amount calculated using a measure 
of potential future losses.'' \352\ Another commenter also noted that 
requiring funds to segregate a mark-to-market amount under the contract 
as well as an additional amount meant to cover future losses ``is more 
akin to the way portfolio managers and risk officers assess the 
portfolio risks created through the use of derivatives.'' \353\
---------------------------------------------------------------------------

    \350\ See, e.g., ICI Concept Release Comment Letter, supra note 
8; Comment Letter of the Asset Management Group of the Securities 
Industry and Financial Markets Association (Nov. 23, 2011) (File No. 
S7-33-11).
    \351\ See SIFMA Concept Release Comment Letter; ICI Concept 
Release Comment Letter; Loomis Sayles Concept Release Comment 
Letter; BlackRock Concept Release Comment Letter.
    \352\ See SIFMA Concept Release Comment Letter.
    \353\ See ICI Concept Release Comment Letter.
---------------------------------------------------------------------------

    Under the proposed rule, the risk-based coverage amount for each 
derivatives transaction would be determined in accordance with policies 
and procedures approved by the fund's board of directors.\354\ By 
requiring funds to establish appropriate policies and procedures, 
rather than prescribing specific segregation amounts or methodologies, 
the proposed rule is designed to allow funds to assess and determine 
risk-based coverage amounts based on their specific derivatives 
transactions, investment strategies and associated risks. We expect 
that funds may be best situated to evaluate and determine the 
appropriate risk-based coverage amount for each of their derivatives 
transactions based on a careful assessment of their own particular 
facts and circumstances.
---------------------------------------------------------------------------

    \354\ Proposed rule 18f-4(a)(2), (a)(5), (c)(9).
---------------------------------------------------------------------------

    We believe an approach to asset segregation that is based, in part, 
on a fund's assessment of its own particular facts and circumstances 
would be more appropriate than a requirement to segregate only a fund's 
mark-to-market liability, on one hand, or the full notional amount, on 
the other. As we noted in the Concept Release, ``both notional amount 
and a mark-to-market amount have their limitations.'' \355\ A fund's 
segregation only of any mark-to-market liability, if any, may not 
effectively assure the fund will have sufficient assets to meet its 
obligations under the derivatives transaction for the reasons we 
discuss above in section II.D.1.c. A fund's segregation of the full 
notional amount for all of its derivatives transactions, in contrast, 
could in some cases require funds to hold more liquid assets than may 
be necessary to address the investor protection purposes and concerns 
underlying section 18 because the notional amount of a derivatives 
transaction does not necessarily equal, and often will exceed, the 
amount of cash or other assets that fund ultimately would likely be 
required to pay or deliver under the derivatives transaction. The 
proposed rule seeks to address these concerns, which also were shared 
by commenters on the Concept Release, by requiring a fund to segregate 
the mark-to-market and risk-based coverage amounts associated with its 
derivatives transactions.
---------------------------------------------------------------------------

    \355\ See Concept Release, supra note 3, at n.27.
---------------------------------------------------------------------------

    Under the proposed rule, a fund's policies and procedures for 
determining the risk-based coverage amount for each derivatives 
transaction would be required to take into account, as relevant, the 
structure, terms and characteristics of the derivatives transaction and 
the underlying reference asset.\356\ The fund's risk-based coverage 
amount for a derivatives transaction, therefore, would be an amount 
determined in accordance with the fund's policies and procedures that 
takes into account these and any other relevant factors in determining 
a reasonable estimate of the potential amount payable by the fund if 
the fund were to exit the derivatives transaction under stressed 
conditions. This may include, for example, consideration of the fund's 
ability to terminate the trade or otherwise exit the position under 
stressed conditions, which could include an assessment of the 
derivative's terms and the fund's intended use of the derivative in 
connection with its investment strategy. We note that, if a fund has a 
derivatives transaction that is not traded or has an underlying 
reference asset that is not traded (or, in either case, is not traded 
on a regular basis) or the fund does not have the ability to terminate 
the transaction, then a fund's policies and procedures should consider 
whether the risk-based coverage amount should, in certain 
circumstances, be increased to reflect the full potential amount that

[[Page 80930]]

may be payable by the fund under the derivatives transaction. In any 
case, the risk-based coverage amount must be a reasonable estimate of 
the potential amount payable by the fund if the fund were to exit the 
derivatives transaction under stressed conditions, regardless of 
whether the fund is currently required to make such payments under the 
terms of the derivatives contract.
---------------------------------------------------------------------------

    \356\ Proposed rule 18f-4(c)(9).
---------------------------------------------------------------------------

    The requirements that we are proposing with respect to a fund's 
determination of the risk-based coverage amount are intended to permit 
a fund to tailor its procedures for determining the risk-based coverage 
amount to respond to the particular risks and circumstances associated 
with a fund's derivatives transactions. In developing policies and 
procedures to determine the risk-based coverage amount, a fund could 
use one or more financial models to determine the risk-based coverage 
amount, provided that the calculation reflects a reasonable estimate of 
the potential amount payable by the fund if the fund were to exit the 
derivatives transaction under stressed conditions and takes into 
account, as relevant, the structure, terms and characteristics of the 
derivatives transaction and the underlying reference asset, as required 
by the proposed rule. These tools may be useful in estimating the 
potential amounts payable by the fund under certain derivatives 
transactions, and may be an efficient way for a fund to determine the 
risk-based coverage amount for its derivatives, particularly for those 
funds that already use such methods for other purposes.
    For example, as discussed in section III.D.2 below, a fund's 
policies and procedures under its derivatives risk management program 
could include stress testing. A fund that uses stress testing could 
consider using this approach to estimate the potential amount payable 
by the fund to exit a derivatives transaction by estimating the effects 
of various adverse events. Alternatively, a fund's policies and 
procedures could provide that, for a particular type of derivatives 
transaction, the fund's adviser would use a stressed VaR model to 
estimate the potential loss the fund could incur, at a given confidence 
level, under stressed conditions.\357\
---------------------------------------------------------------------------

    \357\ Stressed VaR refers to a VaR model that is calibrated to a 
period of market stress. As noted in section III.B.2.a, a concern 
that has been recognized with VaR is that it may not adequately 
reflect ``tail risks,'' i.e., the size of losses that may occur on 
the trading days on which the greatest losses occur, and that VaR 
may underestimate the risk of loss under stressed market conditions. 
However, by calibrating VaR to a period of market stress, stressed 
VaR may better reflect the potential losses that a fund could incur 
through a derivatives transaction, and thus serve as an appropriate 
method for determining a reasonable estimate of the potential amount 
payable by the fund if the fund were to exit the transaction under 
stressed conditions.
---------------------------------------------------------------------------

    As noted above, a fund's policies and procedures for determining 
its risk-based coverage amount would be required to take into account, 
as relevant, the structure, terms and characteristics of the 
derivatives transaction and the underlying reference asset. In 
calculating its risk-based coverage amount, a fund may take into 
account considerations in addition to these factors. For example, if a 
fund elects to conduct stress testing for other purposes and such 
stress tests incorporate factors other than those specified under the 
proposed rule, the fund should consider incorporating the results of 
this stress testing into the determination of its risk-based coverage 
amount.
    As with the calculation of mark-to-market coverage amounts, if the 
fund has entered into a netting agreement that allows the fund to net 
its payment obligations with respect to multiple derivatives 
transactions, the proposed rule would allow a fund to calculate its 
risk-based coverage amount on a net basis for all derivatives 
transactions covered by the netting agreement, in accordance with the 
terms of the netting agreement.\358\ This aspect of the proposed rule 
is designed to recognize that if a fund has a netting agreement in 
effect, the potential amounts payable by the fund under a derivatives 
transaction covered by such agreement could be reduced by any future 
payments owed to the fund under other derivatives transactions covered 
by the netting agreement, with the fund being required to pay only the 
net amount. Thus, the proposed rule would allow the fund to calculate 
its risk-based coverage amount for all derivatives transactions covered 
by the netting agreement on a net basis. For example, if a fund has two 
derivatives transactions that are covered by a netting agreement, and 
one of the transactions is inversely correlated with the other 
position, the fund could determine its risk-based coverage amount for 
both derivatives transactions on a net basis, taking into account 
anticipated gains that it reasonably expects may reduce potential 
amounts payable by the fund under stressed conditions under other 
derivatives transactions covered by the same netting agreement. The 
proposed rule would only allow a fund to net derivatives transactions 
for purposes of determining risk-based coverage if the fund has a 
netting agreement that allows the fund to net its payment obligations 
with respect to such transactions because, absent such an agreement, 
the fund may not have the right to reduce its payment obligations and 
could potentially be required to tender the full amount payable under 
each derivatives transaction.
---------------------------------------------------------------------------

    \358\ Proposed rule 18f-4(c)(9)(i).
---------------------------------------------------------------------------

    The proposed rule would also allow a fund to reduce the risk-based 
coverage amount for a derivatives transaction by the value of any 
assets that represent initial margin or collateral in respect of such 
derivatives transaction.\359\ This would allow a fund to receive credit 
for assets that are already posted as a security guarantee to cover 
potential future amounts payable by the fund under the derivatives 
transaction, and which could ultimately be used by the fund's 
counterparty to satisfy those obligations if needed. In order to reduce 
the risk-based coverage amount, the assets must represent initial 
margin or collateral to cover the fund's future potential amounts 
payable by the fund under the derivatives transaction.\360\ Further, 
initial margin or collateral can only reduce the risk-based coverage 
amount for the specific derivatives transaction for which such assets 
were posted.\361\
---------------------------------------------------------------------------

    \359\ Proposed rule 18f-4(c)(9)(ii).
    \360\ Assets that represent variation margin are used to satisfy 
the fund's current mark-to-market liability under the derivatives 
transaction and would not be available to cover the fund's potential 
future liabilities under the transaction. Thus, assets that 
represent variation margin would not reduce the fund's risk-based 
coverage amount with respect to the derivatives transaction. We 
believe it is appropriate to count only initial margin given that 
the risk-based coverage amount is designed to cover potential future 
amounts payable by the fund.
    \361\ The proposed rule requires the fund to calculate risk-
based coverage amounts on a transaction-by-transaction basis in 
respect of each of the fund's derivatives transactions. Assets 
delivered as collateral for a particular derivatives transaction 
thus cannot be used to cover other derivatives transactions unless 
the transactions are covered by a netting agreement. In the event 
that a fund posts initial margin or collateral to cover multiple 
derivatives transactions, the risk-based coverage amount for all 
derivatives transactions covered by such initial margin or 
collateral cannot be reduced by more than the total amount of the 
initial margin or collateral.
---------------------------------------------------------------------------

    The proposed rule therefore would give a fund credit for initial 
margin by not requiring the fund to maintain risk-based coverage assets 
in respect of future amounts payable that could be satisfied by the 
fund's initial margin. We believe that giving a fund credit for initial 
margin in this way is more appropriate than an approach suggested by at 
least one commenter under which we would provide that a fund's 
``cushion'' would be equal to the required initial margin for a 
particular transaction.\362\ Final rules regarding the

[[Page 80931]]

margin requirements for OTC swaps have not been adopted by all federal 
agencies, and we note that not all funds may be required to post 
initial margin for their OTC swaps under those rules.\363\ Therefore, 
while these margin requirements may provide benchmarks that may assist 
a fund in the evaluation of risk-based coverage amounts, they do not 
appear to provide a means of implementing a risk-based coverage amount 
requirement for all funds that engage in the use of derivatives.\364\
---------------------------------------------------------------------------

    \362\ See SIFMA Concept Release Comment Letter.
    \363\ See Prudential Regulator Margin and Capital Adopting 
Release, supra note 160; CFTC Margin Proposing Release, supra note 
160; cf. Capital, Margin, and Segregation Requirements for Security-
Based Swap Dealers and Major Security-Based Swap Participants and 
Capital Requirements for Broker-Dealers, Exchange Act Release No. 
68071 (Oct. 18, 2012) [77 FR 70214 (Nov. 23, 2012)] (``Margin and 
Capital Proposing Release''). Under rules adopted by the banking 
regulators and rules proposed by the CFTC, initial margin may be 
calculated using either an internal models approach (under which 
initial margin would be calculated using an approved model 
calibrated to a period of stress conditions) or a standardized 
initial margin approach (under which initial margin would be 
calculated using a standardized initial margin schedule). Under 
these rules, however, not all funds would be required to post 
initial margin. For example, under rules adopted by the banking 
regulators, a covered swap entity, such as a bank, would only be 
required to collect initial margin from a swap counterparty, such as 
a fund, if the fund has ``material swaps exposure,'' which is a 
threshold under the rule that would apply if a fund and its 
affiliates have average daily aggregate notional exposure from 
swaps, security-based swaps, foreign exchange forwards, and foreign 
exchange swaps that exceeds $8 billion. See Prudential Regulator 
Margin and Capital Adopting Release, supra note 160. The rules 
proposed by the CFTC have a similar threshold and would only require 
a covered swap entity to collect initial margin from a swap 
counterparty, such as a fund, if the fund has material swaps 
exposure that exceeds $3 billion. See CFTC Margin Proposing Release, 
supra note 160. Thus, these rules would generally only require a 
fund to post initial margin if the fund has average daily exposure 
to swaps in excess of $8 billion or $3 billion. See Prudential 
Regulator Margin and Capital Adopting Release, supra note 160; CFTC 
Margin Proposing Release, supra note 160. (The initial margin rules 
proposed by the Commission for uncleared security-based swaps do not 
impose minimum thresholds for the collection of initial margin. See 
Margin and Capital Proposing Release, supra).
    \364\ See Prudential Regulator Margin and Capital Adopting 
Release, supra note 160; CFTC Margin Proposing Release, supra note 
160.
---------------------------------------------------------------------------

    A fund could, however, consider any applicable initial margin 
requirements when determining its risk-based coverage amount for a 
derivatives transaction. But if a fund determines that its risk-based 
coverage amount--that is, a reasonable estimate of the potential amount 
payable by the fund if the fund were to exit the derivatives 
transaction under stressed conditions--is greater than the initial 
margin the fund would be required to post, the fund would need to 
maintain qualifying coverage assets equal to such greater amount in 
order to comply with the proposed rule.
    We request comment on all aspects of the proposed rule's 
requirement that a fund manage the risks associated with its 
derivatives transactions by maintaining qualifying coverage assets 
equal to the fund's aggregate risk-based coverage amounts for its 
derivatives transactions.
     Is the definition of risk-based coverage amount 
sufficiently clear to allow a fund to develop policies and procedures 
to determine a risk-based coverage amount for all derivatives 
transactions?
     Rather than determining the risk-based coverage amount in 
accordance with policies and procedures approved by the board, should 
we prescribe risk-based coverage amounts in the proposed rule? Should 
we, for example, provide that the risk-based coverage amount must be 
determined based on a specific financial model (i.e., VaR at a 
particular confidence level)? Should we specify a percentage of the 
derivative's notional value? If so, what percentage should we choose? 
Should it vary for different types of derivatives? For example, should 
the proposed rule include a standardized schedule that specifies the 
risk-based coverage amount for particular derivatives transactions? If 
so, should the schedule be similar to, or different from, the 
standardized schedules under rules that have been proposed or adopted 
for swap entities that are required to collect initial margin and elect 
to use a standardized schedule approach instead of an internal model 
approach? If so, should the standardized schedule approach be in 
addition to, or in place of, the approach currently described in the 
proposed rule? Why or why not?
     Should we retain the proposed rule's approach that the 
risk-based coverage amount be determined in accordance with board-
approved policies and procedures, but also provide funds the option to 
use certain prescribed standards for the calculation of the risk-based 
coverage amount? In other words, should the proposed rule prescribe a 
specific financial model or amount of the derivative's notional amount 
that could be used by funds to determine the risk-based coverage amount 
without the need for additional policies and procedures? If so, which 
models or notional amounts should we specify? Should we provide, for 
example, that a fund may use as its risk-based coverage amount for a 
particular derivatives transactions the VaR calculated using a VaR 
model that meets the minimum criteria for a VaR model under the 
proposed rule and that provides stressed VaR estimates?
     Are there additional items that a fund should be required 
to consider when preparing policies and procedures in respect of the 
risk-based coverage amount?
     The risk-based coverage amount as proposed would be a 
reasonable estimate of the potential amount payable by the fund if the 
fund were to exit the derivatives transaction under stressed 
conditions. Is the term ``stressed conditions'' clear? If not, how 
could the term ``stressed conditions'' be made more clear? Is 
``stressed conditions'' an appropriate standard? Is there an 
alternative standard that would be more appropriate? Should it be an 
estimate that does not involve stressed conditions?
     The proposed rule would allow a fund to net derivatives 
transactions for purposes of determining the risk-based coverage amount 
if a fund has a netting agreement in effect that would allow the fund 
to net its payment obligations for such transactions. Is this 
appropriate? Should we impose further limitations on a fund's ability 
to net transactions, including, for example, prohibiting netting across 
asset classes or different types of derivatives? Should we, in 
contrast, permit netting more extensively? Are there situations in 
which initial margin for funds is calculated on a net basis that would 
not be permitted under the proposed rule and for which funds believe 
netting would be appropriate? Are there other situations in which funds 
today net their obligations with derivatives counterparties that would 
not be permitted under the proposed rule and for which funds believe 
netting would be appropriate? Should we include specific parameters in 
the rule regarding the enforceability of the agreement in a bankruptcy 
or similar proceeding?
     In situations not involving a netting agreement, should we 
allow a fund to reduce its risk-based coverage amount for a derivatives 
transaction to reflect anticipated or actual gains in other 
transactions that the fund believes are likely to produce gains for the 
fund at the same time as other derivatives experience losses? If so, 
what parameters or guidelines should we prescribe to address market 
risk, counterparty risk or other payment risks if netting is permitted 
under the proposed rule for these separate transactions?
     The proposed rule would allow a fund to reduce its risk-
based coverage amount by the value of assets that represent initial 
margin or collateral. Is this appropriate? Should we instead

[[Page 80932]]

restrict this reduction to initial margin or collateral that meets 
certain minimum requirements (e.g., cash, cash equivalents, high-
quality debt securities)? Should we, in contrast, give the fund more 
flexibility to reduce its risk-based coverage?
     Should we require the risk-based coverage amount to be 
calculated based expressly on initial margin requirements, rather than 
requiring funds to determine these amounts in accordance with policies 
and procedures, as proposed, which could be informed by margin 
requirements? Should we require the risk-based coverage amount to be no 
less than the initial margin requirement, without regard to minimum 
transfer amounts or limits that would apply to a particular fund?
     Should we require any type of stress testing or back-
testing with respect to the calculation of the risk-based coverage 
amount?
     Should the risk-based coverage amount be determined more 
than once per day? Is once per day too frequent?
     The risk-based coverage amount as proposed would generally 
be determined on an instrument-by-instrument basis (but would permit 
the fund to determine risk-based coverage amounts on a net basis in 
certain circumstances as discussed above). Should we, instead, permit 
or require funds to determine the risk-based coverage amount on a 
fund's entire portfolio? Alternatively, should we permit the risk-based 
coverage amount to be determined on a net basis with respect to 
particular subsets of the portfolio? For example, should we allow a 
fund to calculate separate risk-based coverage amounts for instruments 
that fall within different broad risk categories, such as equity, 
credit, foreign exchange, interest rate, and commodity risk? If so, how 
should funds calculate such risk-based coverage amounts? Would either 
of these approaches be more or less effective at assuring funds will 
have liquid assets to meet their obligations under their derivatives 
transactions? Would either of these approaches be more or less cost 
efficient for funds?
2. Qualifying Coverage Assets
    As described above, the proposed rule would require a fund to 
manage the risks associated with its derivatives transactions by 
maintaining qualifying coverage assets, identified on the books and 
records of the fund and determined at least once each business day, in 
respect of each derivatives transaction. Under the proposed rule, 
``qualifying coverage assets'' in respect of a derivatives transaction 
would be fund assets that are either: (1) Cash and cash equivalents; or 
(2) with respect to any derivatives transaction under which the fund 
may satisfy its obligations under the transaction by delivering a 
particular asset, that particular asset. The total amount of a fund's 
qualifying coverage assets could not exceed the fund's net assets.\365\
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    \365\ Proposed rule 18f-4(c)(8).
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a. Cash and Cash Equivalents
    Under the proposed rule, a fund would generally be required to 
segregate cash and cash equivalents as qualifying coverage assets in 
respect of its coverage obligations for its derivatives 
transactions.\366\ Current U.S. generally accepted accounting 
principles define cash equivalents as short-term, highly liquid 
investments that are readily convertible to known amounts of cash and 
that are so near their maturity that they present insignificant risk of 
changes in value because of changes in interest rates.\367\ Examples of 
items commonly considered to be cash equivalents include certain 
Treasury bills, agency securities, bank deposits, commercial paper, and 
shares of money market funds.\368\
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    \366\ Proposed rule 18f-4(c)(8). The proposed rule would not 
require funds to place qualifying coverage assets in a separate 
segregated account. In this Release when we refer to assets that a 
fund would ``segregate'' under the proposed rule, these are assets 
that the fund would identify as qualifying coverage assets on the 
fund's books and records determined at least once each business day, 
as noted above.
    \367\ FASB Accounting Standards Codification paragraph 305-10-
20l; see also Money Market Fund Reform; Amendments to Form PF, 
Investment Company Act Release No. 31166 (July 23, 2014) [79 FR 
47736 (Aug. 14, 2014)] (``2014 Money Market Fund Reform Adopting 
Release''), at sections III.A.7 and III.B.6 (clarifying that the 
reforms to the regulation of money market funds adopted by the 
Commission in 2014 should not preclude an investment in a money 
market fund from being classified as a cash equivalent under U.S. 
GAAP under normal circumstances).
    \368\ See Liquidity Release, supra note 5; FASB Accounting 
Standards Codification paragraph 305-10-20l; Form PF: Glossary of 
Terms (defining ``cash and cash equivalents'').
---------------------------------------------------------------------------

    We believe that cash and cash equivalents are appropriate 
qualifying coverage assets for derivatives transactions because these 
assets are extremely liquid because they are cash or could be easily 
and nearly immediately converted to known amounts of cash without a 
loss in value.\369\ Other types of assets, in contrast, may be more 
likely to experience volatility in price or to decline in value in 
times of stress, even if subject to a haircut. We are not proposing to 
include as qualifying coverage assets other types of assets, such as 
equity securities or other debt securities, because we are concerned 
about the risk that such assets could decline in value at the same time 
the fund's potential obligations under the derivatives transactions 
increase, thus increasing the possibility that such assets could be 
insufficient to cover the fund's obligations under derivatives 
transactions. In addition, we understand that cash and cash equivalents 
are commonly used for posting collateral or margin for derivatives 
transactions. For example, ISDA reported in a 2015 survey that cash 
represented 77% of collateral received for uncleared derivatives 
transactions (with government securities representing an additional 13% 
percent), while for cleared OTC transactions with clients, cash 
represented 59% of initial margin received (with government securities 
representing an additional 39%) and 100% of variation margin 
received.\370\ Given that the proposed rule's requirements relating to 
the mark-to-market coverage amount and risk-based coverage amount are 
conceptually similar to initial margin (which represents an amount 
collected to cover potential future exposures) and variation margin 
(which represents an collected to cover current exposures), and that 
the proposed rule would permit the mark-to-market coverage amount and 
risk-based coverage amount to be reduced by the value of assets that 
represent initial or variation margin, we believe that limiting 
qualifying coverage

[[Page 80933]]

assets to cash and cash equivalents would be appropriate.
---------------------------------------------------------------------------

    \369\ See Liquidity Release, supra note 5, at 123 (``Cash and 
cash equivalents are extremely liquid (in that they either are cash, 
or could be easily and nearly immediately converted to cash without 
a loss in value), and significant holdings of these instruments 
generally decrease a fund's liquidity risk because the fund could 
use them to meet redemption requests without materially affecting 
the fund's NAV.'').
    \370\ ISDA Margin Survey 2015 (Aug. 2015), available at https://www2.isda.org/functional-areas/research/surveys/margin-surveys. The 
ISDA Margin Survey included 41 ISDA members, approximately 90% of 
whom were banks or broker-dealers, in the Americas (32%), Europe/
Middle East Africa (53%) and Asia (16%). Figures for uncleared 
margin reflect responses of large firms, i.e., those having more 
than 3,000 active non-cleared ISDA collateral agreements. Under the 
ISDA Margin Survey, government agency and government sponsored 
entity securities, US municipal bonds and supranational bonds were 
categorized separately from the ``government securities'' category 
and therefore are not included in the percentages cited above. As 
previously noted, examples of items commonly considered to be ``cash 
equivalents'' include certain Treasury bills, agency securities, 
bank deposits, commercial paper, and shares of money market funds 
(see supra note 368 and accompanying text). In light of the global 
nature of the survey and the types of entities surveyed, we request 
comment below on whether cash and cash equivalents are the assets 
most commonly used by funds for posting initial and variation margin 
to their counterparties.
---------------------------------------------------------------------------

    We note that some commenters on the Concept Release opposed a more 
restrictive requirement for asset segregation, such as the one we are 
proposing today, stating that a more restrictive approach could limit 
certain funds' ability to use derivatives.\371\ However, we note that 
these comments were made in the context of the Concept Release, which 
sought comment on the appropriate amount of segregated assets for a 
derivatives transaction in the context of the current approach, under 
which funds segregate the full notional amount for some types of 
derivatives transactions. The proposed rule, however, would not require 
funds to segregate a derivative's full notional amount, and instead 
would require the fund to segregate its mark-to-mark and risk-based 
coverage amounts. Given the proposed rule's requirement to segregate 
these amounts with respect to their derivatives transactions, we 
believe it is appropriate to require that the segregated assets be 
assets that are extremely liquid.
---------------------------------------------------------------------------

    \371\ See, e.g., AQR Concept Release Comment Letter, at 4 (``If 
the Merrill Lynch Letter were withdrawn, we believe investors in 
certain funds would be harmed. Equity funds or high yield funds, for 
example, would find it difficult to utilize derivatives because 
these funds do not usually hold large quantities of cash and high 
grade debt obligations that could be used as collateral.''); 
BlackRock Concept Release Comment Letter, at 5 (``Holding cash and 
U.S. Government securities to satisfy asset coverage requirements 
may be in conflict with the stated investment objectives of a fund 
and effectively would prevent many equity and certain bond funds 
from being able to use derivatives when derivatives are the most 
effective ways of implementing portfolio strategies.'').
---------------------------------------------------------------------------

b. Assets Required To Be Delivered Under the Derivatives Transaction
    With respect to any derivatives transaction under which a fund may 
satisfy its obligations under the transaction by delivering a 
particular asset, the proposed rule would allow the fund to segregate 
that particular asset as a qualifying coverage asset.\372\ Because, in 
such derivatives transactions, the fund could satisfy its obligations 
by delivering the asset itself, we believe that these assets would be 
an appropriate qualifying coverage asset for such transactions. For 
example, if the fund has written a call option on a particular security 
that the fund owns, then the security could be considered a qualifying 
coverage asset in respect of the written option.\373\ In that example, 
the fund's delivery of such security would satisfy its obligations 
under the written option and any change in the value or liquidity of 
such security should not affect the ability of the fund to satisfy its 
payment obligation under the call option.
---------------------------------------------------------------------------

    \372\ Proposed rule 18f-4(c)(8).
    \373\ We note that, in this type of ``covered call'' transaction 
where a fund owns the security that is required to be delivered 
under the written option, the fund could reasonably conclude that 
the sum of the mark-to-market coverage amount and the risk-based 
coverage amount for such written option is equal to the value of the 
security. Thus, the fund could satisfy the asset segregation 
requirements of the proposed rule by segregating the security 
itself, without segregating additional qualifying coverage assets.
---------------------------------------------------------------------------

    Under the proposed rule, the particular asset that the fund may 
deliver to satisfy its obligations under the derivatives transaction 
would be a qualifying coverage asset. However, a qualifying coverage 
asset for a derivatives transaction generally would not include a 
derivative that provides an offsetting exposure. For example, if a fund 
has written a CDS on a bond, a purchased CDS on the same bond entered 
into with a different counterparty generally would not be considered a 
qualifying coverage asset in respect of the written CDS because the 
fund would be exposed to the risk that its counterparty could default 
or fail to perform its obligation under the purchased CDS, thereby 
potentially leaving the fund without sufficient assets to satisfy its 
obligations under the written CDS.\374\ Such a result would be 
inconsistent with the purpose of the asset segregation requirement in 
the proposed rule, which is designed to enable the fund to meet its 
obligations arising from the derivatives transaction. In addition, and 
as discussed in more detail in section III.B.1.d above, we have not 
included in the proposed rule provisions for particular types of 
potential hedging and other cover transactions. The same considerations 
we discuss above in section III.B.1.d similarly weigh against our 
including exceptions to the asset coverage requirements in the proposed 
rule for these kinds of transactions.
---------------------------------------------------------------------------

    \374\ We note, however, that if a fund entered into two 
transactions that were covered by a netting agreement, the proposed 
rule would permit the mark-to-market coverage amount and risk-based 
coverage amount to be determined on a net basis, which could result 
in a reduction in the amount of qualifying coverage assets that the 
fund would need to segregate if such transactions were offsetting. 
As discussed in section III.B.1.b.ii, for purposes of the exposure 
limits under the proposed rule, a fund may net directly offsetting 
derivatives transactions that are the same type of instrument and 
have the same underlying reference asset, maturity and other 
material terms, even if those transactions are entered into with 
different counterparties and without regard to whether those 
transactions are subject to a netting agreement. See proposed rule 
18f-4(c)(3)(i). We believe that it is appropriate to allow such 
netting for purposes of the proposed rule's exposure limits because 
in those circumstances, netting can be expected to eliminate a 
fund's market exposure. By contrast, the proposed rule's asset 
coverage requirements are designed to address a different primary 
concern, namely, the ability of a fund to meet its obligations 
arising from derivatives transactions.
---------------------------------------------------------------------------

    We recognize that commenters to the Concept Release generally 
advocated for retaining the flexibility offered by the cover 
transaction approach.\375\ The proposed rule is designed instead to 
provide some flexibility to funds to determine the appropriate risk-
based coverage amount (rather than a derivative's full notional 
amount), and in this context, we believe that additional flexibility 
regarding particularized cover transactions (other than those covered 
by a netting agreement as described above) may not address the asset 
sufficiency concern under the Act.
---------------------------------------------------------------------------

    \375\ See, e.g., ICI Concept Release Comment Letter; SIFMA 
Concept Release Comment Letter; Oppenheimer Concept Release Comment 
Letter.
---------------------------------------------------------------------------

c. Limit on the Total Amount of Qualifying Coverage Assets
    Under the proposed rule, the total amount of a fund's qualifying 
coverage assets could not exceed the fund's net assets.\376\ This 
aspect of the proposed rule is designed to require a fund to have 
sufficient qualifying coverage assets to meet its obligations under its 
derivatives transactions and also prohibit a fund from entering into a 
financial commitment transaction or otherwise issuing senior securities 
pursuant to section 18 or 61 of the Act and then using the additional 
assets resulting from such leveraging transactions to support an 
additional layer of leverage through senior securities transactions. 
Thus, if a fund borrowed from a bank, for example, the aggregate amount 
of the fund's assets that the fund might otherwise use as qualifying 
coverage assets for derivatives transactions would be reduced by the 
amount of the outstanding bank borrowing. We believe it is appropriate 
for a fund that enters into derivatives transactions in reliance on the 
proposed rule to have qualifying coverage assets in excess of the 
amounts the fund owes to other counterparties so that the fund's 
qualifying coverage assets would be available to satisfy the fund's 
obligations under its derivatives transactions if necessary. Therefore, 
under the proposed rule, the total amount of a fund's qualifying 
coverage assets could not exceed the fund's net assets.
---------------------------------------------------------------------------

    \376\ Proposed rule 18f-4(c)(8).
---------------------------------------------------------------------------

    We request comment on all aspects of the proposed rule's definition 
of qualifying coverage assets.
     For derivatives transactions, the proposed rule contains 
the same

[[Page 80934]]

requirements for qualifying coverage assets in respect of the mark-to-
market coverage amount and the risk-based coverage amount. Should there 
be a difference in the requirements for qualifying coverage assets in 
respect of the mark-to-market coverage amount and the risk-based 
coverage amount? If so, what changes should be made? Should we, for 
example, permit funds to use a broader range of assets as qualifying 
coverage assets with respect to a fund's risk-based coverage amount 
because that amount reflects potential amounts payable by the fund, 
rather than the mark-to-market payable amounts represented by the 
fund's mark-to-market coverage amount?
     Under the proposed rule, a fund would generally be 
required to segregate cash and cash equivalents. Is the range of assets 
that would be included as cash and cash equivalents sufficiently clear? 
Are there other types of assets that commenters believe are cash 
equivalents that we should identify by way of example? Should we 
instead define ``cash equivalents'' in the proposed rule? If so, how 
should we define ``cash equivalents''?
     Should we allow funds to segregate other types of assets 
in addition to cash and cash equivalents? If so, what other types of 
assets should we allow? For example, should we permit funds to 
segregate any U.S. government security (i.e. any security issued or 
guaranteed as to principal and interest by the U.S. government)? Should 
we allow funds to segregate high grade debt obligations as discussed in 
Release 10666? If so, how should we define high grade debt obligations 
for this purpose? Should we permit funds to segregate assets that would 
be eligible as collateral for margin under the rules that have been 
proposed or adopted for swap entities? Should we instead allow funds to 
segregate any Three-Day Liquid Asset as defined in proposed rule 22e-4? 
If we were to permit funds to segregate other types of assets in 
addition to cash and cash equivalents, should we place restrictions on 
these other types of assets to protect against the risk that the gains 
and losses on these coverage assets held by the fund may be correlated 
with the performance of reference assets underlying the fund's 
derivatives transactions in such a way that they could lose value in 
stressed market conditions when the fund's liabilities under 
derivatives transactions may be increasing?
     If we were to allow funds to segregate other assets as 
qualifying coverage assets (whether for all purposes or only the fund's 
risk-based coverage amount), what additional measures, if any, should 
we require funds to undertake in order to protect against potential 
changes in the value and/or liquidity of such assets? For example, 
should we impose haircuts on such assets? If so, how should we 
determine the appropriate haircut? For example, should we incorporate 
the haircuts described in the SEC's proposed margin requirements for 
security-based swap dealers and major security-based swap participants? 
\377\ Or, should we incorporate the haircut schedule included in the 
rules adopted by the banking regulators for covered swap entities? 
\378\ Is there a different haircut schedule that would be more 
appropriate for the proposed rule?
---------------------------------------------------------------------------

    \377\ See Margin and Capital Proposing Release, supra note 363.
    \378\ See Prudential Regulator Margin and Capital Adopting 
Release, supra note 160.
---------------------------------------------------------------------------

     If we were to allow funds to segregate other assets as 
qualifying coverage assets (whether for all purposes or only the fund's 
risk-based coverage amount), should we impose additional restrictions 
if the assets are closely correlated with the exposure created by the 
derivatives transaction? What types of requirements should we impose 
for assessing these correlations?
     Under the proposed rule, qualifying coverage assets for 
derivatives transactions generally would not include a derivative that 
provides an offsetting exposure. Is this appropriate? Why or why not?
     Some commenters to the Concept Release stated that 
requiring funds to segregate cash and other high-quality debt 
obligations could make it difficult for certain funds to use 
derivatives.\379\ Given that the proposed rule would not require funds 
to segregate assets equal to the full notional value of its derivatives 
transactions, and would permit a fund to reduce its mark-to-market and 
risk-based coverage amounts to take account of margin posted by the 
fund, do such concerns remain?
---------------------------------------------------------------------------

    \379\ See Basel Committee on Banking Supervision & Board of the 
International Organization of Securities Commissions, Margin 
Requirements for Non-Centrally Cleared Derivatives (Mar. 2015), 
available at http://www.bis.org/bcbs/publ/d317.pdf.
---------------------------------------------------------------------------

     Under the proposed rule, the total amount of a fund's 
qualifying coverage assets could not exceed the fund's net assets. Do 
commenters agree that this is appropriate? Should we, instead, specify 
that qualifying coverage assets must not be ``otherwise encumbered''? 
Is there a different approach we should take to prevent a fund from 
using assets to cover multiple different obligations or potential 
obligations?
     The proposed rule's asset segregation requirements for 
derivatives transactions, although designed primarily to enable the 
fund to meet its obligations arising from its derivatives transactions, 
also could serve to limit a fund's ability to obtain leverage through 
derivatives transactions to the extent that a fund limits its 
derivatives usage in order to comply with the asset segregation 
requirements. As noted above, a fund might limit its derivatives 
transactions in order to avoid having to maintain qualifying coverage 
assets for the transactions, and the asset segregation requirements may 
limit a fund's ability to enter into a derivatives transaction if the 
fund does not have, and cannot acquire, sufficient qualifying coverage 
assets to engage in additional derivatives transactions. To what extent 
do commenters believe that the proposed rule's asset segregation 
requirements would impose a practical limit on the amount of leverage a 
fund could obtain?

D. Derivatives Risk Management Program

    The use of derivatives can pose a variety of risks to funds and 
their investors, although the extent of the risk may vary depending on 
how a fund uses derivatives as part of the fund's investment strategy. 
As discussed previously, these risks can include the risk that a fund 
may operate with excessive leverage or without adequate assets and 
reserves, which are both core concerns of the Act.\380\ Other potential 
risks associated with derivatives use can include market, counterparty, 
leverage, liquidity, and operational risk. While many of these risks 
are not limited to derivatives investments, the complexity and 
character of derivatives investments may heighten such risks.\381\
---------------------------------------------------------------------------

    \380\ See, e.g., Investment Company Act sections 1(b)(7), 
1(b)(8), 18(a), and 18(f); see also section II.B.1.
    \381\ See, e.g., 2008 IDC Report, supra note 72. See also Mutual 
Funds and Derivative Instruments, Division of Investment Management.
---------------------------------------------------------------------------

    The proposed rule's portfolio limitations and asset coverage 
requirements are intended to help limit the extent of the fund's 
exposure to many of these risks. These requirements are designed both 
to impose a limit on the amount of leverage a fund may obtain from 
derivatives and to require the fund to manage its risks by having 
qualifying coverage assets to meet its obligations while providing 
funds with flexibility to engage in a wide variety of derivatives 
transactions and investment strategies. These restrictions on funds' 
use of derivatives are generally intended to provide limits on the 
magnitude of funds' derivatives exposures, and in the case of a fund 
operating under the risk-

[[Page 80935]]

based limit, to require that the fund's derivatives transactions, in 
the aggregate, have the effect of reducing the fund's exposure to 
market risk. These limits and associated risk management requirements 
would be complemented by the proposed rule's formalized derivatives 
risk management program requirement, which would require funds that 
engage in more than a limited amount of derivatives transactions, or 
that use complex derivatives transactions as defined in the proposed 
rule, to also have a formalized program that includes policies and 
procedures reasonably designed to assess and manage the particular 
risks presented by the fund's use of derivatives.
    We have observed that fund investments in derivatives can pose risk 
management challenges, and poor risk management may cause significant 
harm to funds and their investors.\382\ We understand that, today, the 
advisers to many funds whose investment strategies could entail 
derivatives risk routinely conduct risk management to evaluate a fund's 
derivatives usage.\383\ A fund's use of derivatives presents challenges 
for its investment adviser and board of directors in managing 
derivatives transactions so that they are employed in a manner 
consistent with the fund's investment objectives, policies, and 
restrictions, its risk profile, and relevant regulatory requirements, 
including those under the federal securities laws.\384\ Funds and their 
advisers may face liability under the antifraud provisions of the 
federal securities laws if their use of derivatives is inconsistent 
with these constraints. Accordingly, we understand that advisers to 
many funds whose investment strategies entail the use of derivatives 
already assess and manage such risk.
---------------------------------------------------------------------------

    \382\ See supra section II.D.1.d.
    \383\ See, e.g., Mutual Fund Derivative Holdings: Fueling the 
Need for Improved Risk Management, JPMorgan Thought Magazine (Summer 
2008) (``2008 JPMorgan Article''), available at http://www.jpmorgan.com/cm/BlobServer?blobcol=urldata&blobtable=MungoBlobs&blobkey=id&blobwhere=1158494213964&blobheader=application%2Fpdf&blobnocache=true&blobheadername1=Content; 2008 IDC Report, supra note 72.
    \384\ See supra note 27 and accompanying text.
---------------------------------------------------------------------------

    Fund advisers that today engage in active risk management of their 
derivatives may use a variety of tools. Depending on the fund and its 
derivatives use, these tools might include a formalized derivatives 
risk management program led by a dedicated risk manager or risk 
committee, the use of other checks and balances put in place by a 
fund's portfolio management team, or other tools.\385\ We understand 
that many fund boards oversee the fund adviser's risk management 
process as part of their general oversight of the fund.\386\ As a 
result, we believe that the proposed program would likely have the 
effect of enhancing practices that are in place at many funds today by 
specifying requirements for funds that rely on the rule to evaluate the 
risks associated with the funds' use of derivatives and to inform the 
funds' boards of directors about these risks as part of a regular 
dialogue with officers of the fund or its adviser.
---------------------------------------------------------------------------

    \385\ See, e.g., 2008 IDC Report, supra note 72; Fund Board 
Oversight of Risk Management, Independent Directors Council (Sept. 
2011) (``2011 IDC Report''), available at http://www.ici.org/pdf/pub_11_oversight_risk.pdf.
    \386\ See, e.g., 2011 IDC Report, supra note 385, at 9.
---------------------------------------------------------------------------

    The proposed measures will help enhance derivatives risk management 
by requiring that any fund that engages in more than a limited amount 
of derivatives transactions pursuant to the proposed rule, or that uses 
complex derivatives transactions, adopt and implement a formalized 
derivatives risk management program (a ``program'').\387\ The program's 
requirements would be in addition to the requirements related to 
derivatives risk management that would apply to every fund that enters 
into derivatives transactions, including, for example, the requirement 
to manage derivatives risk through determining the risk-based coverage 
amounts on a daily basis, and the requirement to monitor compliance 
with the proposed portfolio limit under which the fund's derivatives 
exposure may not exceed 50% of net assets and the fund may not enter 
into complex derivatives transactions. The formalized risk management 
program condition would require a fund to have policies and procedures 
reasonably designed to:
---------------------------------------------------------------------------

    \387\ Proposed rule 18f-4(a)(3). As discussed in greater detail 
below, the derivatives risk management program requirement that we 
are proposing today would only apply to ``derivatives 
transactions,'' and not to other senior securities transactions, 
such as financial commitment transactions as defined under the rule.
---------------------------------------------------------------------------

     Assess the risks associated with the fund's derivatives 
transactions, including an evaluation of potential leverage, market, 
counterparty, liquidity, and operational risks, as applicable, and any 
other risks considered relevant;
     Manage the risks of the fund's derivatives transactions, 
including by monitoring the fund's use of derivatives transactions and 
informing portfolio management of the fund or the fund's board of 
directors, as appropriate, regarding material risks arising from the 
fund's derivatives transactions;
     Reasonably segregate the functions associated with the 
program from the portfolio management of the fund; and
     Periodically (but at least annually) review and update the 
program.\388\
---------------------------------------------------------------------------

    \388\ See proposed rule 18f-4(a)(3).
---------------------------------------------------------------------------

    The program, which would be administered by a designated 
derivatives risk manager, would require funds, at a minimum, to adopt 
policies and procedures reasonably designed to implement certain 
specified elements, and would include administration and oversight 
requirements. The program is expected to be tailored by each fund and 
its adviser to the particular types of derivatives used by the fund and 
the manner in which those derivatives relate to the fund's investment 
portfolio and strategy. Funds that make only limited use of derivatives 
would not be subject to the proposed condition requiring the adoption 
of a formalized derivatives risk management program under the proposed 
rule.
    Proposed rule 18f-4 would include board oversight provisions 
related to the derivatives risk management program requirement. 
Specifically, a fund's board would be required to approve the fund's 
derivatives risk management program, any material changes to the 
program, and the fund's designation of the fund's derivatives risk 
manager (who cannot be a portfolio manager of the fund).\389\ The board 
also would be required to review written reports prepared by the 
designated derivatives risk manager, at least quarterly, that review 
the adequacy of the fund's derivatives risk management program and the 
effectiveness of its implementation.\390\ A fund might, as it 
determines appropriate, expand its derivatives risk management 
procedures beyond the required program elements and should consider 
doing so whenever it would be necessary to ensure effective derivatives 
risk management.
---------------------------------------------------------------------------

    \389\ Proposed rule 18f-4(a)(3)(ii).
    \390\ Proposed rule 18f-4(a)(3)(ii)(B).
---------------------------------------------------------------------------

    The proposed derivatives risk management program would serve as an 
important complement to the other conditions of proposed rule 18f-4. We 
expect that the rule's portfolio limitations and asset coverage 
requirements would provide ``guard rails'' designed to impose a limit 
on leverage and to require funds to have qualifying coverage assets to 
meet their obligations, which should help to limit funds' exposure to 
some of the risks associated with the use of derivatives. Nonetheless, 
for funds that engage in more than a limited amount of

[[Page 80936]]

derivatives use, or that use complex derivatives, we believe that the 
outside limits set by the proposed portfolio limitations and the 
protections provided by the asset coverage requirements should be 
coupled with a formalized risk management program tailored to the ways 
which funds use derivatives and the specific risks to which funds are 
exposed.
    While we recognize that many funds already engage in significant 
risk management of their derivatives transactions, we have observed 
that the quality and extent of such practices vary among funds in that 
some funds have carefully structured risk management programs with 
clearly allocated functions and reporting responsibilities while others 
are left largely to the discretion of the portfolio manager. In light 
of the dramatic growth in the volume and complexity of the derivatives 
markets over the past two decades, and the increased use of derivatives 
by certain funds, we believe that in connection with providing 
exemptive relief from section 18, it is appropriate to require certain 
funds to have a formalized risk management program focused on the 
particular risks of these transactions. We believe that requiring a 
risk management program that meets the requirements in the proposed 
rule should serve to establish a standardized level of risk management 
for funds that engage in more than a limited amount of derivatives use 
or that use complex derivatives, and thus should provide valuable 
additional protections for the shareholders of such funds.
1. Funds Subject to the Proposed Risk Management Program Condition
    We are proposing that funds that exceed a 50% threshold of notional 
derivatives exposure would be subject to the specific risk management 
program condition discussed here. Under section 18, open- and closed-
end funds are permitted to engage in certain senior securities 
transactions, as discussed above, subject to a 300% asset coverage 
requirement or a 200% coverage requirement for closed-end fund issuance 
of preferred equity. A mutual fund therefore can borrow from a bank 
(and a closed-end fund can issue other senior securities) under section 
18 provided that the amount of such borrowings (or other senior 
securities) does not exceed one-third of the fund's total assets, or 
50% of the fund's net assets.\391\ This threshold represents a 
determination by Congress of an appropriate amount of senior security 
transactions that funds may achieve through bank borrowings (and 
certain other transactions in the case of closed-end funds).\392\
---------------------------------------------------------------------------

    \391\ Under section 18(h), ``asset coverage'' of a class of 
senior security representing an indebtedness of an issuer means the 
ratio which the value of the total assets of such issuer, less all 
liabilities and indebtedness not represented by senior securities, 
bears to the aggregate amount of senior securities representing 
indebtedness of such issuer.'' Take, for example, an open-end fund 
with $100 in assets and with no liabilities or senior securities 
outstanding. The fund could, while maintaining the required coverage 
of 300% of the value of its assets subject to section 18 of the Act, 
borrow an additional $50 from a bank; the $50 in borrowings would 
represent one-third of the fund's $150 in total assets, measured 
after the borrowing (or 50% of the fund's $100 net assets).
    \392\ As discussed in section III.B.1.c above, we also have 
considered whether the 50% limitation that Congress established for 
obligations and leverage through the use of bank borrowings should 
also be applied to limit the use of derivatives transactions and 
have noted that derivatives differ in certain respects from 
borrowings permitted under section 18. See supra note 207 and 
accompanying text.
---------------------------------------------------------------------------

    As discussed previously, for a number of reasons we have determined 
to propose to permit a fund to engage in derivatives transactions 
provided it complies with all of the conditions in proposed rule 18f-4. 
Under the proposal, if a fund exceeds a threshold of 50% notional 
amount of derivatives transactions, that fund must adopt and implement 
a formalized risk management program.\393\ We believe that a threshold 
analogous to the statutorily defined threshold for senior securities 
under section 18 represents a level of derivatives use, which if 
exceeded, should be managed through such a derivatives risk management 
program.\394\ Because we expect that a risk management program should 
help mitigate the risks associated with a fund incurring obligations 
from the use of derivatives above the statutory defined level that 
would be permitted for borrowings, we believe that this requirement is 
consistent with the exemption we are providing today for these 
transactions.
---------------------------------------------------------------------------

    \393\ We note that under the proposed rule, the threshold for 
implementing a derivatives risk management program would be 
triggered by the notional exposure of the fund's derivatives 
transactions only, and would not include the exposure to a fund's 
financial commitment or other senior securities transactions. This 
is in contrast to other aspects of the proposed rule's calculations 
of exposure, which would include in the calculation all senior 
securities transactions, not just derivatives. Rule 18f-4(a)(4). We 
are taking this approach because, as discussed throughout this 
Release, the risks of derivatives transactions often differ in 
magnitude and kind from the risks of other senior securities 
transactions.
    \394\ See supra section II.D.1.d. See also supra note 207 and 
accompanying text.
---------------------------------------------------------------------------

    While we are proposing that a formalized risk management program 
would be a requirement only for those funds that exceed the 50% 
threshold or that use complex derivatives transactions, all funds that 
enter into derivatives transactions in reliance on the proposed rule 
would also be required to manage risks relating to their derivatives 
transactions through compliance with various other requirements of the 
proposed rule and other rules under the Act. For example, under our 
proposal, a fund that engages in even a single derivatives transaction 
would be required to manage the risks of those derivatives transactions 
by segregating qualifying coverage assets determined at least once each 
business day.\395\ This would require the fund each business day to 
determine the risk-based coverage amount for each of its derivatives 
transactions which we believe would enable the funds to better manage 
their risks relating to the use of derivatives. This risk-based 
coverage amount would be determined in accordance with policies and 
procedures approved by the fund's board and would represent a 
reasonable estimate of the amount payable by the fund if it were to 
exit the derivatives transaction under stressed conditions. Thus, the 
fund would be required to monitor and manage the potential risk of loss 
associated with each of its derivatives transactions on a daily basis 
as part of the fund's determination of its risk-based coverage amounts, 
and all funds would therefore be required under the proposed rule to 
make an assessment of potential losses associated with their 
derivatives transactions under stressed conditions. This risk 
management requirement applies to every fund that uses derivatives, 
regardless of whether it is also subject to the formalized derivatives 
risk management program condition.
---------------------------------------------------------------------------

    \395\ This risk management requirement is discussed in detail in 
section III.C of this Release.
---------------------------------------------------------------------------

    In addition, a fund that is not required to establish a formalized 
risk management program must comply, and monitor its compliance, with 
the portfolio limitation under which the fund may not permit its 
derivatives exposure to exceed 50% of the fund's net assets immediately 
after entering into any derivatives transactions and may not enter into 
any complex derivatives transactions.\396\ A fund that uses any 
derivatives would be required to monitor the types and notional amounts 
of the fund's derivatives transactions and the fund's aggregate 
exposure to prevent the fund's derivatives exposure from exceeding 50% 
of net assets and to prevent the fund from entering into complex

[[Page 80937]]

derivatives transactions.\397\ Thus, funds that are not subject to the 
proposed formalized risk management program condition would 
nevertheless need to manage risks relating to their use of derivatives 
through their compliance with the risk assessment, monitoring, and 
other regulatory requirements discussed above.
---------------------------------------------------------------------------

    \396\ Proposed rule 18f-4(4).
    \397\ In addition, rule 38a-1 would also require funds to have 
policies and procedures reasonably designed to prevent the fund from 
exceeding any other applicable portfolio limitation under the 
proposed rule. See Compliance Programs of Investment Companies and 
Investment Advisers, Release Nos. IA-2204 and IC-26299 (December 17, 
2003). If a fund were to breach the portfolio limitation established 
by the board, this would likely be a material compliance matter that 
would be required to be disclosed in writing to the fund's board in 
the CCO's annual report to the board. We expect that this may serve 
to further enhance funds' risk management practices. In addition, a 
fund's exceeding its portfolio limit also could be a serious 
compliance issue that should be brought to the board's attention 
promptly. See infra note 449.
---------------------------------------------------------------------------

    The risks and potential impact of derivatives transactions on a 
fund's portfolio generally increase as the fund's level of derivatives 
usage increases.\398\ When derivatives are used to a significant 
extent, we expect the risks relating to their use, and the challenge of 
managing risks relating to expected or intended interactions among 
derivatives and other investments and managing relationships with 
counterparties, may increase. Complex derivatives also may involve more 
significant risks and potential impacts. Conversely, for funds that 
make only limited use of derivatives and do not use complex 
derivatives, we expect that the risks and potential impact of these 
funds' derivatives transactions may not be as significant in comparison 
to the risks of the funds' overall investment portfolios and may be 
appropriately addressed by the rule's other requirements, including the 
requirement to determine risk-based coverage amounts.\399\ Therefore, 
we believe that a formalized risk management program that includes the 
specific program elements included in the proposed rule is most 
appropriate for funds that meet a threshold level of derivatives usage 
(or that use complex derivatives transactions).
---------------------------------------------------------------------------

    \398\ We acknowledge that derivatives can be used for both 
hedging and speculative purposes, but even if primarily used for 
hedging purposes, we believe that significant use of derivatives 
instruments poses additional risks that may need to be assessed, 
monitored, and managed. See, e.g., David Weinberger, et al., Using 
Derivatives: What senior managers must know, Har. Bus. Rev. (Jan.-
Feb. 1995), available at https://hbr.org/1995/01/using-derivatives-what-senior-managers-must-know; Sergey Chernenko & Michael 
Faulkender, The Two Sides of Derivatives Usage: Hedging and 
Speculating with interest rate swaps, J. of Fin. and Quantitative 
Analysis, (Dec. 2011), available at http://journals.cambridge.org/download.php?file=%2FJFQ%2FJFQ46_06%2FS0022109011000391a.pdf&code=0d15622321dedaa274f024857fd4885c.
    \399\ Funds that are not required to adopt and implement a 
derivatives risk management program should generally still consider 
the risks of derivatives, because even small amounts of derivatives 
may pose significant risks if engaged in by an entity that is an 
inexperienced user of such instruments or when adverse market events 
occur. See, e.g., Rene M. Stulz, Should we fear derivatives?, J. of 
Econ. perspectives (Summer 2004), available at http://fisher.osu.edu/supplements/10/10402/Should-We-Fear-Derivatives.pdf.
---------------------------------------------------------------------------

    Accordingly, proposed rule 18f-4 would not require that a fund 
adopt a formalized derivatives risk management program if the fund's 
board determines that the fund will comply, and monitor its compliance, 
with a portfolio limitation under which the fund limits its aggregate 
exposure to derivatives transactions to no more than 50% of its NAV and 
does not use complex derivatives transactions as defined in the 
rule.\400\ We believe that a fund that limits its exposure to 
derivatives in such a way (in conjunction with the other requirements 
of the rule) should be able to limit the derivatives' associated risk 
so that their usage is consistent with the concerns of the Act.\401\ 
Requiring a formalized program for managing derivatives when a fund 
engages in non-complex derivatives transactions below the statutorily 
defined limit established by Congress with respect to senior securities 
transactions could potentially require funds (and therefore their 
shareholders) to incur costs that might be disproportionate to the 
resulting benefits, and thus we are not proposing to require that all 
funds that use derivatives to any extent implement one. Nonetheless, as 
discussed in greater detail below, we request comment on whether the 
risks of derivatives use are significant enough (or significantly 
different from securities investments) that we should require funds 
that engage in any derivative use at all to comply with the proposed 
formalized risk management program condition.
---------------------------------------------------------------------------

    \400\ Proposed rule 18f-4(a)(4).
    \401\ Although we believe that any fund that engages in 
derivatives would likely evaluate the risks of such transactions as 
part of the adviser's management of the fund's portfolio, we are not 
proposing that funds that keep their use of derivatives below the 
50% threshold be subject to the proposed program requirements under 
rule 18f-4 unless the fund uses complex derivatives transactions, as 
discussed below.
---------------------------------------------------------------------------

    To identify the number of funds that would need to adopt a program 
under this condition we evaluated the DERA White Paper data and 
evaluated which funds would be likely to be subject to this proposed 
condition. Based on this analysis, approximately 10% of the sampled 
open-end funds (representing about 10% of such funds' assets under 
management (``AUM'')) and approximately 9% of the sampled closed-end 
funds (representing about 13% of their AUM) would be required to adopt 
a program.\402\ We further note that this condition also would 
effectively sort funds that would need to adopt a program based on fund 
strategy. For example, approximately 52% of sampled alternative 
strategy funds (representing around 70% of AUM) would need to implement 
a program. On the other hand, the analysis shows that only about 6% of 
sampled funds (representing about 8% of their AUM) that employ more 
traditional strategies use derivatives in excess of a 50% level.\403\
---------------------------------------------------------------------------

    \402\ We note that no BDC's identified in the DERA White Paper 
used derivatives at any level, and thus we do not expect that any 
BDCs would be required to implement a program under the proposed 
condition.
    \403\ We note the exception of certain leveraged index ETFs that 
serve as trading tools and that commonly have notional exposure of 
200 or 300% of assets.
---------------------------------------------------------------------------

    This 50% exposure condition would include exposures from 
derivatives transactions entered into by a fund in reliance on the 
proposed rule, but would not include exposure from financial commitment 
transactions or other senior securities transactions entered into by 
the fund pursuant to section 18 or 61 of the Act. We are proposing to 
focus this exposure threshold on exposures from derivatives 
transactions for several reasons. Derivatives transactions generally 
can pose different kinds of risks than many other kinds of senior 
securities transactions, in that the amount of a fund's market exposure 
and payment obligations under many derivatives transactions often will 
be more uncertain than for other types of senior securities 
transactions. In contrast, the fund's payment obligation may be largely 
known and fixed at the time the fund enters into many financial 
commitment transactions, such as reverse repurchase agreements or firm 
commitment agreements. In addition, the proposed rule would require a 
fund that engages in financial commitment transactions in reliance on 
the rule to maintain qualifying coverage assets equal in value to the 
fund's conditional and unconditional obligations under its financial 
commitment transactions.\404\ Requiring a fund to maintain qualifying 
coverage assets sufficient to cover its full obligations under a 
financial commitment transaction may effectively address many of the 
risks that otherwise would be managed through a risk

[[Page 80938]]

management program. The mark-to-market segregation approach would not 
be permitted under the proposed rule for financial commitment 
transactions. Finally, commenters on the Concept Release and on the 
FSOC Request for Comment have suggested that funds obtain leverage 
primarily from the use of derivatives and not financial commitment 
transactions, further indicating that derivatives use poses a different 
set of challenges than other types of senior securities 
transactions.\405\
---------------------------------------------------------------------------

    \404\ Proposed rule 18f-4(b).
    \405\ See, e.g., Comment Letter of T. Rowe Price Associates, 
Inc. on the FSOC Request for Comment (Mar. 25, 2015) (FSOC 2014-
0001) (``T. Rowe Price FSOC Comment Letter''), available at http://www.regulations.gov/#!documentDetail;D=FSOC-2014-0001-0038, at 3; 
Comment Letter of State Street Corporation on the FSOC Request for 
Comment (Mar. 25, 2015) (FSOC 2014-0001) (``State Street FSOC 
Comment Letter''), available at http://www.regulations.gov/#!documentDetail;D=FSOC-2014-0001-0042 at 11; Oppenheimer Concept 
Release Comment Letter, at 1-2; Comment Letter of Independent 
Directors Council on Concept Release (Nov. 7, 2011) (File No. S7-33-
11) (``IDC Concept Release Comment Letter''), available at http://www.sec.gov/comments/s7-33-11/s73311-24.pdf, at 2-4.
---------------------------------------------------------------------------

    We also are proposing to require a fund that engages in any complex 
derivatives transaction as defined under the proposed rule to implement 
a program. We believe that complex derivatives transactions pose 
special risk management challenges in light of their complicated 
structure and the difficulties they can pose in evaluating their impact 
on a fund's portfolio. As discussed in more detail above in section 
III.B.1, a complex derivatives transaction may expose a fund to greater 
risk of loss and can have market risks that are difficult to estimate 
due to the effect of multiple contingencies, path dependency or other 
non-linear factors associated with complex derivatives. We believe that 
a fund that engages in complex derivatives transactions under the 
proposed rule should be required to implement a derivatives risk 
management program to manage these risks as they are more complex and 
difficult to assess and manage than typical derivatives. Because of 
their potentially highly asymmetric and unpredictable outcomes, complex 
derivatives transactions may pose risks that are not as correlated to 
the size of a fund's exposure, and thus we believe that if a fund 
engages in any of these transactions, those risks should be assessed 
and managed through a formalized derivatives risk management program 
overseen by a risk manager and the funds' board. Accordingly, we are 
proposing that a fund that engages in any amount of complex derivatives 
transactions adopt a derivatives risk management program.
    We request comment on our proposed approach for identifying funds 
that must comply with the program requirement for funds that engage in 
a limited amount of derivatives transactions.
     Should the formalized derivatives risk management program 
apply not just to derivatives transactions, but to all senior 
securities transactions? Should it apply to just derivatives and 
financial commitment transactions? Do commenters agree that derivatives 
transactions generally can pose different kinds of risks than many 
other kinds of senior securities transactions, and that requiring a 
fund to maintain qualifying coverage assets sufficient to cover its 
full obligations under a financial commitment transaction may 
effectively address many of the risks that otherwise would be managed 
through a risk management program?
     As we are proposing, should we exclude from the formalized 
program requirement funds that engage in a limited amount of 
derivatives transactions? Are the risks associated with derivatives use 
significant enough (or significantly different from securities 
investments) that a fund should be required to adopt a program if it 
engages in any derivatives transactions? Should we instead require any 
fund that engages in derivatives transactions to any extent be subject 
to the program requirement?
     Should we require a formalized risk management program for 
funds that engage in even lower levels of derivatives use than under 
the proposed condition if they rely on the proposed rule? Should this 
condition not be based on the statutory threshold but instead on a 
different threshold? For example, are the risks of derivatives use 
significant enough that we should require a fund to have a program at a 
lower threshold, for example at 0%, 10%, 25%, or 33% of net assets? On 
the other hand, are the risks of derivatives use manageable enough that 
we should increase the threshold to avoid requiring funds to incur 
costs associated with a derivatives risk management program unless they 
make more extensive use of derivatives? For example, should the 
threshold for exposure instead be 66% or 75% of net assets? If we were 
to use a higher threshold, would that permit funds to obtain levels of 
derivative exposure that could pose more substantial risks to the fund 
before the fund would be required to establish a formalized derivatives 
risk management program?
     The 50% exposure condition only includes exposure from a 
fund's derivatives transactions but not its financial commitment 
transactions or other senior securities transactions. Do commenters 
agree that it is appropriate to exclude exposures from other senior 
securities transactions in determining whether to require a formalized 
derivatives risk management program? Should we treat particular types 
of derivatives transactions or financial commitment transactions 
differently for purposes of the 50% exposure condition? Should we, for 
example, require a fund to include the exposure associated with 
financial commitment transactions other than reverse repurchase 
agreements, which may be more similar to bank borrowings and thus may 
not involve some of the risks and uncertainties associated with other 
senior securities transactions?
     Should we vary the condition based on fund characteristics 
or the types of derivatives transactions? For example, should we 
provide tiered thresholds based on a fund's assets under management, 
requiring funds of a larger size to be subject to a lower threshold? 
Would such a tiered threshold provide material protections for 
investors at a reasonable cost? Would it create disparate competitive 
effects on different sized funds? Is the size of the fund an 
appropriate metric to scale requirements designed to manage the risk of 
derivatives use? Should we provide for higher thresholds if a fund 
engages only in certain kinds of derivatives transactions? If so, then 
what types of derivatives transactions would be expected to present 
less risk?
     Should we use some test other than an exposure threshold 
for excluding funds that make a limited use of derivatives from the 
program requirement? For example, should we use a risk-based test? If 
so, should we specify what kind of test (e.g., VaR, expected shortfall, 
or some other metric) and what threshold should we use? Should we 
require a specified threshold at all, or should we instead allow a 
board to determine a risk-based threshold?
     As we are proposing, should we require that all funds that 
engage in any complex derivatives transactions implement a program? Why 
or why not? Should we instead permit funds to obtain a limited amount 
of exposure through complex derivatives transactions (e.g., 1% or 5% of 
net assets) before being required to implement a derivatives risk 
management?
    As discussed above, a risk management program should be tailored to 
the scale of the fund's usage of derivatives, as well as the particular

[[Page 80939]]

risks of the derivatives used by the fund. Therefore, funds that engage 
in significant amounts of derivatives transactions, or that use complex 
derivatives transactions, are likely to have more detailed and complex 
programs, while funds that make more minimal use or limit their use to 
more standard derivatives may have more streamlined programs tailored 
to their particular usage. As proposed, all of the elements of the 
proposed risk management program, however, would apply equally to all 
funds that exceed the 50% threshold.\406\ We expect that providing a 
single set of requirements for all funds that engage in more than a 
limited amount of derivatives transactions or that use complex 
derivatives transactions should provide a consistent baseline for these 
funds' risk management programs. Nonetheless, we acknowledge that this 
approach may cause certain funds to bear higher costs in complying with 
all of the requirements of the program than if we were to further scale 
or otherwise tailor the program depending on the amount or type of fund 
derivatives use.
---------------------------------------------------------------------------

    \406\ Although, as discussed previously, we note that all funds, 
even those not subject to the formalized risk management condition, 
would be required to manage the risks associated with their 
derivative transactions through compliance with our regulatory 
requirements, and we request comment on whether we should apply the 
program's requirements to all funds that engage in derivatives 
transactions at any level.
---------------------------------------------------------------------------

     We request comment on whether we should further tailor or 
scale the program depending on the fund's use of derivatives. For 
example, should we have multiple tiered thresholds, with differing 
program requirements tailored to each level of use? If so, which 
thresholds should we use and which program elements should be included 
at each level? Should we otherwise tier or scale the program such as, 
for example, by requiring certain additional program elements for funds 
that engage in specific types of derivatives? If so, how should we 
tailor such a requirement? For example, should we require funds that 
only engage in certain simple types of derivatives not to have a 
derivatives risk manager?
     If we were to eliminate the proposed 50% threshold and 
require funds that engage in any amount of derivatives transactions to 
comply with the risk management program condition, should we provide a 
more streamlined or simpler program that does not include all of the 
elements of the full program we are proposing today? If so, which 
elements should we not include in such a more limited program? If we 
were to provide for a more limited program for such funds, should we 
continue to require all of the proposed program elements for funds that 
use derivatives above the proposed 50% threshold?
2. Required Elements of the Program
    Under the proposal, a derivatives risk management program must 
include, at a minimum, four specified elements, discussed in detail 
below.
a. Assessment of Risks
    The first proposed element of the program would be to require funds 
subject to the condition to have policies and procedures reasonably 
designed to assess the risks associated with the fund's derivatives 
transactions, including an evaluation of potential leverage, market, 
counterparty, liquidity, and operational risks, as applicable, and any 
other risks considered relevant.\407\ This element would require funds 
to engage in a process of identifying and evaluating the potential 
risks posed by their derivatives transactions. This element provides 
flexibility for funds to customize their derivatives risk management 
programs so that the scope, and related costs and burdens, of such 
programs are appropriate to manage the anticipated derivatives risks 
faced by a particular fund. Thus, in complying with this element, a 
fund generally should identify the types of derivatives it currently 
uses, as well as any potential derivatives transactions it reasonably 
expects to use in the future and then evaluate the risks of engaging in 
those transactions as contemplated.
---------------------------------------------------------------------------

    \407\ While these risks are not unique to a fund's use of 
derivatives and may be associated with the fund's investments in 
other instruments as well, the proposed condition would require that 
the program assess and manage the risks associated with the 
derivatives transactions engaged in by the fund, but would not 
generally apply to other fund transactions. Proposed rule 18f-
4(a)(3).
---------------------------------------------------------------------------

    This program element would require policies and procedures for 
evaluating certain identified potential risks that are common to most 
derivatives transactions, as appropriate.\408\ The first is the 
potential leverage risks associated with a fund's derivatives 
transactions. Leverage risk, which includes the risk associated with 
potential magnified effects on a fund resulting from changes in the 
market value of assets underlying its derivatives transactions where 
the value of the underlying assets exceeds the amount paid by the fund 
under the derivatives transactions, would need to be assessed under the 
fund's risk management program.\409\ Leverage can be calculated in 
different ways, and the appropriateness of a leverage metric used by 
the fund, if any, to assess leverage risk may depend on various 
factors, such as a fund's strategy, the fund's particular investments 
and investment exposures, and the historical and expected correlations 
among the fund's investments.\410\
---------------------------------------------------------------------------

    \408\ Proposed rule 18f-4(a)(3)(i)(A). See also Comprehensive 
Risk Management of OTC Derivatives; A Tricky Endeavour, Numerix 
(July 16, 2013) (``Comprehensive Risk Management of OTC 
Derivatives''), available at http://www.numerix.com/comprehensive-risk-management-otc-derivatives-tricky-endeavor; Statement on best 
practices for managing risk in derivatives transactions, RMA 
(``Statement on best practices for managing risk in derivatives 
transactions''), available at http://www.rmahq.org/securities-lending/best-practices; 2008 IDC Report, supra note 72; Derivatives 
Danger: Internal auditors can play a role in reigning in the complex 
risks associated with financial instruments, Lawrence Metzger, FSA 
Times (``FSA Times Derivatives Dangers''), available at http://www.theiia.org/fsa/2011-features/derivatives-danger.
    \409\ See, e.g., 2008 IDC Report, supra note 72, at 12.
    \410\ See, e.g., An Overview of Leverage, supra note 167 
(distinguishing between financial, construction and instrument 
leverage and measurement of leverage using gross market exposure vs. 
net market exposure). See also Off-Balance-Sheet Leverage IMF 
Working Paper, supra note 79 (discussing means of measure leverage 
in various derivatives and other off-balance-sheet transactions). 
See also Ang, Gorovyy & Inwegen, supra note 72 (discussing 
differences among gross leverage, net leverage and long-only 
leverage calculations as applied to long-only, dedicated long-short, 
general leveraged and dedicated short funds).
---------------------------------------------------------------------------

    While the proposed exposure limitations included in each of the 
portfolio limitations are designed to provide a limit on the amount of 
leverage a fund may obtain by placing an outside limit on the overall 
amount of market exposures that a fund can achieve through derivatives 
transactions, the exposure limitations are not designed to be used as a 
precise measure of the leverage used by funds. A fund, in assessing the 
leverage risk associated with its derivatives, could consider using 
metrics for measuring the extent of its leverage, and which metrics to 
use, in light of these and other relevant factors.\411\ Assessing 
leverage risks might include, for example, a review of the fund's 
derivatives transactions to evaluate the leverage resulting from the 
fund's derivatives transactions, whether such leverage is consistent 
with any

[[Page 80940]]

guidelines established by the fund, and whether the leverage used by 
the fund is consistent with its disclosure to investors.\412\
---------------------------------------------------------------------------

    \411\ We note that commenters have suggested a variety of 
methods of calculating leverage for various purposes. For example, 
one commenter on our recent proposal to modernize reporting for 
investment companies suggested a possible methodology for 
calculating leverage that might be reported to the Commission. See, 
Comment Letter of Blackrock on Data Gathering Release (Aug. 11, 
2015) (File No. S7-09-15), available at http://www.sec.gov/comments/s7-09-15/s70915-39.pdf, at 20. We request comment below in section 
II.G on whether we should require the reporting of leverage 
(including potentially using this approach) to us on N-PORT.
    \412\ See supra note 167 and section III.B.1.d regarding ways 
that commenters have noted that they engage in an evaluation of 
leverage used by funds.
---------------------------------------------------------------------------

    The second risk that the fund would be required to have policies 
and procedures reasonably designed to evaluate is the market risk 
associated with its derivatives transactions. Market risk includes the 
risk related to the potential that markets may move in an adverse 
direction in relation to the fund's derivatives positions and so 
adversely impact fund returns and the fund's obligations and 
exposure.\413\ Evaluating market risk could include examining any 
models or metrics used to measure and monitor market movements, 
reviewing historical market movements to help develop an understanding 
of the potential impact of future market movements, and assessing the 
method and sources for receiving information about current events that 
may have market impacts. Scenario or stress testing can also serve as 
an important tool in assessing market risk. To effectively monitor 
market risk, the adequacy of any assumptions and parameters underlying 
a fund's techniques for estimating potential market risk should 
generally be reviewed periodically against actual experience and 
updated market information, especially during periods of heightened 
market volatility.\414\
---------------------------------------------------------------------------

    \413\ Market risk should be considered together with leverage 
risk because leveraged exposures can magnify such impacts. See, 
e.g., Derivatives and Risk Management Made Simple, NAPF (Dec. 2013), 
available at https://www.jpmorgan.com/cm/BlobServer/is_napfms2013.pdf?blobkey=id&blobwhere=1320663533358&blobheader=application/pdf&blobheadername1=Cache-Control&blobheadervalue1=private&blobcol=urldata&blobtable=MungoBlobs
.
    \414\ See, e.g., Top ten best practices for managing model risk, 
FinCAD, available at http://www.fincad.com/resources/resource-library/whitepaper/top-10-best-practices-managing-model-risk. In 
addition, as discussed in more detail below, one of the elements of 
the proposed program would require the fund to adopt and implement 
written policies and procedures to periodically review and update 
the program and any tools that are used as part of the program. See 
infra section III.D.2.d.
---------------------------------------------------------------------------

    The third risk the fund would be required to have policies and 
procedures reasonably designed to evaluate is counterparty risk. This 
might include, for example, an evaluation of the risk that the 
counterparty on a derivatives transaction may not be willing or able to 
perform its obligations under the derivatives contract, and the related 
risks of having a concentration of transactions with any one such 
counterparty. Assessing counterparty risk could involve reviewing the 
creditworthiness or financial position of significant derivatives 
counterparties, understanding the level of counterparty concentration 
in the fund, and evaluating contractual protections, such as collateral 
or margin requirements, netting agreements and termination rights.\415\
---------------------------------------------------------------------------

    \415\ See, e.g., Nils Beier, et al., Getting to Grips with 
Counterparty Risk, McKinsey Working Papers on Risk, Number 20 (June 
2010).
---------------------------------------------------------------------------

    The fourth risk the fund would be required to have policies and 
procedures reasonably designed to evaluate is liquidity risk. Under 
this program element, a fund should assess the potential liquidity of 
the fund's derivatives positions, an evaluation which might include 
both normal and stressed scenarios.\416\ Assessing liquidity risk could 
involve understanding the secondary market liquidity of the fund's 
derivatives holdings; whether the fund has the right to terminate a 
particular derivative or the ability to enter into offsetting 
transactions; the relationship between a particular derivative and 
other portfolio positions of the fund, including whether the derivative 
is intended to hedge risks relating to other positions; and the 
potential effect of market stress events on the liquidity of the fund's 
derivatives transactions.
---------------------------------------------------------------------------

    \416\ We have recently proposed a comprehensive set of reforms 
designed to enhance funds' liquidity management processes, which 
includes evaluating the liquidity of fund derivative holdings, as 
well as a definition of liquidity risk. See Liquidity Release, supra 
note 5. If we were to adopt the liquidity risk management program, 
we expect that such program would serve as a complement to the 
proposed derivatives risk management program with respect to 
assessing the liquidity of fund derivatives and that these programs 
might coordinate and overlap regarding assessment of liquidity risk 
for derivatives. We note that overlapping activities associated with 
the program would not need to be duplicated for each program, but 
that a fund might assess and monitor liquidity risk in a holistic 
way, consistent with the individual requirements of each program.
---------------------------------------------------------------------------

    In addition to the liquidity of the derivatives positions 
themselves, assessing liquidity risk generally should include an 
evaluation of the potential liquidity demands that may be imposed on 
the fund in connection with its use of derivatives. As discussed in 
more detail above in section III.C, each fund would be required under 
the proposed rule to manage the risks associated with its derivatives 
transactions by maintaining qualifying coverage assets to cover the 
funds' mark-to-market coverage amount and risk-based coverage amount 
with respect to the fund's derivatives transactions. In addition, 
counterparties or applicable regulations generally require funds to 
post variation margin when derivatives positions move against the fund, 
and the coverage amounts required under the proposed rule can be 
expected to increase during periods of increased market stress or 
volatility. A risk management program, as part of the assessment of 
liquidity risk, generally should consider how the fund would address 
potential liquidity demands during reasonably foreseeable stressed 
market periods.\417\
---------------------------------------------------------------------------

    \417\ See, e.g., Peter Neu & Pascal Vogt, Liquidity Risk 
Management, The Boston Consulting Group (Oct. 2010), available at 
http://www.bostonconsulting.com.au/documents/file93481.pdf; Board of 
the International Organization of Securities Commissions, Principles 
of Liquidity Risk Management for Collective Investment Schemes, 
OICU-IOSCO (Mar. 2013), available at http://www.iosco.org/library/pubdocs/pdf/IOSCOPD405.pdf.
---------------------------------------------------------------------------

    Finally, the fund would be required to have policies and procedures 
reasonably designed to assess the operational risks associated with the 
fund's derivatives transactions. Operational risk encompasses a wide 
variety of possible events, including risks related to potential 
documentation issues, settlement issues, systems failures, inadequate 
controls, and human error.\418\ Policies and procedures for evaluating 
such risks could include, for example, assessments of the robustness of 
relevant systems and procedures and reviews of training processes.
---------------------------------------------------------------------------

    \418\ See, e.g, 2008 IDC Report, supra note 72; Statement on 
best practices for managing risk in derivatives transactions, supra 
note 408.
---------------------------------------------------------------------------

    These five identified potential categories of risk discussed above 
are common to many derivatives transactions. However, this proposed 
element would not limit this assessment to an examination of only those 
identified risks. This element should also generally include evaluation 
of other applicable risks associated with derivatives transactions. For 
example, some derivatives transactions could pose certain idiosyncratic 
risks, such as the legal risk associated with the potential that a 
bespoke OTC contract \419\ or netting agreement might not be held to be 
legally valid or binding or compliant with other legal requirements, or 
that have provisions that may be one-sided or difficult to enforce in 
the event of a counterparty's default.\420\ Such risks should also be

[[Page 80941]]

included in the fund's risk assessment, if applicable.
---------------------------------------------------------------------------

    \419\ Because derivatives contracts that are traded over the 
counter are not standardized, they bear a certain amount of legal 
risk in that poor draftsmanship, changes in laws, or other reasons 
may cause the contract to not be legally enforceable against the 
counterparty. See, e.g., Comprehensive Risk Management of OTC 
Derivatives, supra note 408.
    \420\ For example, many derivatives contracts and prime 
brokerage agreements that hedge funds and other counterparties had 
entered into with Lehman Brothers included cross-netting that 
allowed for payments owed to and from different Lehman affiliates to 
be offset against each other, and cross-liens that granted security 
interests to all Lehman affiliates (rather than only the specific 
Lehman entity entering into a particular transaction). In 2011, the 
U.S. Bankruptcy Court for the Southern District of New York held 
that cross-affiliate netting provisions in an ISDA swap agreement 
were unenforceable against a debtor in bankruptcy. In re Lehman 
Brothers Inc., Bankr. Case No. 08-01420 (JPM) (SIPA), 458 B.R. 134, 
1135-137 (Bankr. S.D.N.Y. Oct. 4, 2011).
---------------------------------------------------------------------------

    We request comment on all aspects of this proposed element of the 
program.
     Should we require policies and procedures to include an 
assessment of particular risks based on an evaluation of certain 
identified risk categories as proposed? If not, why?
     Are the categories of risks that we have identified in the 
proposed rule appropriate? Should we remove any of the identified risk 
categories? Should we provide further guidance regarding the assessment 
of any of these risks?
     Should we add any other categories of required risks that 
would be required for each fund to have policies and procedures 
reasonably designed to evaluate as part of its program? If so what 
additional categories and why?
     Should we require policies and procedures for any 
additional evaluation of derivatives positions that are used by a fund 
to provide a hedge for, or otherwise reduce risks with respect to, 
other investments by the fund, to evaluate the effectiveness of the 
hedging or risk reduction?
b. Management of Risks
    The second proposed element of the program would be a requirement 
that the fund have policies and procedures reasonably designed to 
manage the risks of its derivatives transactions, including by 
monitoring whether those risks continue to be consistent with any 
investment guidelines established by the fund or the fund's investment 
adviser, the fund's portfolio limitation established under the proposed 
rule, and relevant disclosure to investors, and informing portfolio 
management of the fund or the fund's board of directors, as 
appropriate, regarding material risks arising from the fund's 
derivatives transactions.\421\ Implementing this element might include 
building or enhancing portfolio tracking systems, exception reporting, 
or other mechanisms designed to monitor the risks associated with the 
fund's derivatives transactions and provide current information 
regarding those risks to relevant personnel.\422\ We believe that 
various kinds of stress testing may also be useful tools to monitor and 
manage risks.
---------------------------------------------------------------------------

    \421\ Proposed rule 18f-4(a)(3)(i)(B).
    \422\ Such systems may provide notifications of red flags, such 
as frequent or unusual overrides of policies. Funds may wish to 
consider whether such monitoring mechanisms are sophisticated enough 
to identify outlier activity caused by unapproved employee activity 
(such as a rogue trader). See, e.g., Geoff Kates, No Surprises-
Combatting Rogue Trading, LEPUS, available at http://www.isda.org/c_and_a/ppt/Rogue_Traders_presentation.ppt; Banking Tech, Stopping 
the rogues: Reactions to the UBS rogue trader (Oct. 6, 2011), 
available at http://www.bankingtech.com/48103/Stopping-the-rogues-Reactions-to-the-UBS-rogue-trader/.
---------------------------------------------------------------------------

    Under this element, a fund would be required to have policies and 
procedures reasonably designed to manage the risks of derivatives 
transactions, but this element would not require a fund to impose 
particular risk limits.\423\ Instead, it would require a fund to have 
policies and procedures reasonably designed to manage the risks of 
derivatives transactions so that they are consistent with any 
investment guidelines established by the fund or the fund's investment 
adviser and the fund's portfolio limitations, disclosure, and 
investment strategy.\424\
---------------------------------------------------------------------------

    \423\ See, e.g., Mutual Fund Directors Forum, Risk Principles 
for Fund Directors: Practical Guidance for Fund Directors on 
Effective Risk Management Oversight (Apr. 2010) (``MFDF Guidance''), 
available at http://www.mfdf.org/images/Newsroom/Risk_Principles_6.pdf.
    \424\ Investment guidelines may be established by the fund or 
the adviser and approved by the board and typically provide a set of 
limits on the fund's investment activities. These guidelines may be 
of varying degrees of specificity and typically are distinct from 
the fund's disclosure to investors. The rule does not require funds 
to establish such guidelines, but we understand that most funds do 
have such guidelines in place. This element would require that funds 
manage the risks of their derivatives transactions so that they are 
consistent with any such established guidelines, as well as being 
consistent with relevant portfolio limitations and disclosure.
---------------------------------------------------------------------------

    Funds may use a variety of approaches in developing policies and 
procedures to manage the risks associated with the fund's derivatives 
transactions.\425\ As a preliminary step, a fund would likely review 
its relevant disclosure and investment guidelines to establish the 
appropriate risks that the fund could undertake through derivatives 
transactions (for example through specified allowable types of 
derivatives transactions or overall limits). This review could involve 
establishing an appropriate limit for allowable fund risk, and its 
relationship to the risks associated with the derivatives transactions 
in which the fund engages.\426\ Funds today use a variety of models or 
methodologies to measure the risks associated with these transactions 
(for example, VaR, stress testing, or horizon analysis) to help manage 
those risks.
---------------------------------------------------------------------------

    \425\ See, e.g., Comprehensive Risk Management of OTC 
Derivatives, supra note 408; Statement on best practices for 
managing risk in derivatives transactions, supra note 408; 2008 IDC 
Report, supra note 72.
    \426\ This could also include creating maximum effective 
leverage limits for the fund, if such limits are determined to be 
useful tools for managing the risks of derivatives transactions.
---------------------------------------------------------------------------

    In managing and monitoring the relevant risks, a fund might 
consider establishing written guidelines describing the scope and 
objectives of the fund's use of derivatives. A fund could also consider 
establishing an ``approved list'' of specific derivative instruments or 
strategies that may be used, as well as a list of persons authorized to 
engage in the transactions on behalf of the fund.\427\ Funds may also 
wish to consider establishing corresponding investment size controls or 
limits for approved transactions across the fund, along with 
appropriate risk measurement monitoring mechanisms designed to prevent 
the fund from violating any portfolio limitations or investment 
guidelines, along with implementing tools to monitor such restrictions. 
Establishing clear risk management processes for approving exceptions 
to any established limits, with oversight and approval of any 
exceptions from senior management, generally is also a key aspect of 
effective risk management, and something funds may wish to consider 
implementing. Effective risk management generally also may include 
evaluation of counterparties, for example, through review of their 
financial position, overall trading relationship with the fund, and 
total credit exposure.\428\ Funds may wish to consider establishing an 
approved list of counterparties, or trade-by-trade decision making in 
some cases.\429\ In addition, counterparty risk mitigation also could 
include requirements related to the type and amount of collateral 
posted.
---------------------------------------------------------------------------

    \427\ Funds may wish to provide new instruments (or instruments 
newly used by a fund) additional scrutiny. See, e.g., MFDF Guidance, 
supra note 423, at 8.
    \428\ See, e.g., Christina Ginfrida, Mitigating Counterparty 
Risk in Derivatives Trades, Treasury & Risk (June, 2013), available 
at http://www.treasuryandrisk.com/2013/06/19/mitigating-counterparty-risk-in-derivatives-trades.
    \429\ An important consideration may be whether a counterparty 
is a central counterparty or a counterparty dealing in over the 
counter instruments.
---------------------------------------------------------------------------

    Managing derivatives transaction risk could also involve reviewing 
existing, and potentially establishing new, contingency plans and tools 
in case of adverse market or system events. This could include 
establishing committed

[[Page 80942]]

reserve lines of credit, evaluating potential legal remedies in the 
case of counterparty default, and having robust systems (including 
back-ups as appropriate) across front, mid, and back office operations. 
Funds may also consider establishing processes to manage the particular 
accounting, custody, legal, and other operational risks posed by 
derivatives transactions.
    The element also would require policies and procedures for 
informing the portfolio manager or board of risks associated with the 
fund's derivatives transactions.\430\ We believe that such 
communication would generally be a key part of any risk management and 
monitoring program, because information about relevant risks should not 
remain solely with the derivatives risk manager, but should be shared 
up the chain as needed so that appropriate action to address risks can 
be taken if warranted. We understand that funds today use various tools 
(for example, risk dashboards) to identify evolving risks that may 
serve as a key signal indicating when information should be provided to 
relevant parties. We believe that this communication requirement should 
help ensure that information about derivatives transactions risks is 
not siloed, but instead is shared with parties who can take actions as 
needed to mitigate risks. This requirement is also intended to 
encourage the derivatives risk manager to engage in communication with 
relevant parties on a current and ongoing basis as needed, and not 
limit communication solely to quarterly reports.
---------------------------------------------------------------------------

    \430\ Proposed rule 18f-4(a)(3)(i)(B)(ii).
---------------------------------------------------------------------------

    The potential risk management and monitoring mechanisms discussed 
above are just examples of the techniques funds might consider 
including in their policies and procedures to manage the risks of their 
derivatives transactions under this proposed element. To effectively 
manage its own particular risks, a fund generally should carefully 
review its current and planned use of derivatives well as any relevant 
limitations (including internal limitations established by the fund's 
adviser), and develop risk management tools and processes effectively 
tailored to its own circumstances.
    We request comment on the proposed element of the program requiring 
funds to have policies and procedures reasonably designed to manage the 
risks of the derivatives transactions.
     Should we establish any additional risk management 
requirements within the program element itself, or should we keep it 
generally principles based as we are proposing? For example, should we 
specifically require the creation of approved transactions lists or 
derivative size controls? Should we require that funds use specific 
risk management tools such as stress testing? If so, what tools should 
we require?
     Should we require that a fund institute specific 
investment guidelines regarding its use of derivatives transactions? If 
so what would those guidelines be?
     Should we require the derivatives risk manager to provide 
material risk information to portfolio management or the board as 
appropriate, or would this be generally included in the quarterly 
reports provided by the officer to the board? If we did not include 
such an information requirement, would risk information potentially 
become stale and not be acted upon in a timely manner?
c. Segregation of Functions
    We are also proposing to require, as an element of the program, 
that a fund have policies and procedures reasonably designed to 
reasonably segregate the functions associated with the program from the 
portfolio management of the fund.\431\ We believe that independence of 
risk management from portfolio management should promote objective and 
independent risk assessment to complement and cross check portfolio 
management,\432\ and that maintaining separation of these functions 
should enhance the protections provided by the program. We understand 
that funds today often make efforts to reasonably segregate risk 
management from portfolio management and believe that this proposed 
requirement would therefore be consistent with existing practices. Many 
commentators have observed that independent oversight of derivatives 
activities by compliance and internal audit functions is valuable.\433\ 
Because fund management personnel may be compensated in part based on 
the returns of the fund they manage, the incentives of portfolio 
managers may not always be consistent with the restrictions imposed by 
a risk management program. Thus, we believe that keeping the functions 
separate should help mitigate the possibility that the program's 
effectiveness could be diminished if it were not independent of 
portfolio management. Separation of functions creates important checks 
and balances and can be instituted through a variety of methods such as 
independent reporting chains, oversight arrangements, or separate 
monitoring systems and personnel.\434\
---------------------------------------------------------------------------

    \431\ Proposed rule 18f-4(a)(3)(i)(C).
    \432\ See, e.g., Comptroller of the Currency Administrator of 
National Banks, Risk Management of Financial derivatives: 
Comptroller's handbook, (Jan. 1997), at 9 (discussing the importance 
of independent risk management functions in the banking context).
    \433\ See, e.g., COSO, Internal Control Issues in Derivatives 
Usage, available at http://coso.org/documents/Internal%20Control%20Issues%20in%20Derivatives%20Usage.pdf; see 
also, FSA Times Derivatives Dangers, supra note 408.
    \434\ Another important segregation tool may be ensuring that 
the compensation of the risk management oversight personnel is not 
tied to or dependent on the performance of the fund. See, e.g., 
Raffaelle Scalcione, The Derivatives Revolution: a trapped 
innovation and a blueprint for change (2011), at 334.
---------------------------------------------------------------------------

    However, this segregation of functions is not meant to indicate 
that the derivatives risk manager and portfolio management should be 
subject to a communications ``firewall.'' \435\ We recognize the 
important perspective and insight to the fund's use of derivatives that 
the portfolio manager can provide and would expect that the derivatives 
risk manager would work closely with portfolio management as he or she 
implements all aspects of the program. We believe that regular 
communication between the risk manager and portfolio management should 
be a part of any well-functioning program. Indeed, as discussed above, 
the derivatives risk management program would require that risk 
management personnel monitor the risks associated with the fund's 
derivatives transactions and inform portfolio management (or the fund's 
board) regarding those risks as appropriate.
---------------------------------------------------------------------------

    \435\ In particular, we recognize that this segregation 
requirement may pose challenges for certain entities that may have a 
limited number of employees. In such cases, the program should still 
have policies and procedures designed to reasonably segregate the 
functions of the program from fund portfolio management. As noted 
previously, however, the proposed rule would require reasonable 
segregation, not complete segregation of functions. We also note 
that the derivatives risk manager would not be permitted to be a 
portfolio manager of the fund, which we believe is likely to 
encourage reasonable segregation of functions as a result of such 
separation of roles.
---------------------------------------------------------------------------

    We request comment on the proposed element requiring funds to 
maintain controls reasonably segregating the program functions from 
portfolio management.
     Do commenters agree that segregation of risk management 
functions from portfolio management would enhance the protections 
provided by the proposed derivatives risk management program 
requirement?
     Would this element pose difficulties for particular 
entities, for example, funds managed by small advisers? Should we 
provide any additional clarification of what it means to have 
reasonable segregation of

[[Page 80943]]

functions in such cases? If so, what changes should we make?
     Are there other ways to incentivize objective and 
independent risk assessment of portfolio strategies that we should 
consider?
d. Periodic Review
    The fourth element of the proposed program is that a fund would 
need to have policies and procedures reasonably designed to 
periodically (but at least annually) review and update the program, 
including any models (including any VaR calculation models used during 
the covered period), measurement tools, or policies and procedures that 
are part of, or used in, the program to evaluate their effectiveness 
and reflect changes in risks over time.\436\ Under the proposed 
derivatives risk management program requirement, each fund would need 
to develop and adopt policies and procedures to review the fund's 
derivatives risk, tailored as appropriate to reflect the fund's 
particular facts and circumstances. As part of this program, funds are 
likely to use a variety of models, tools, and policies and procedures 
as part of its implementation. The derivatives markets are dynamic and 
evolving, and tools and processes should be reviewed and modified as 
appropriate.
---------------------------------------------------------------------------

    \436\ Proposed rule 18f-4(a)(3)(i)(D).
---------------------------------------------------------------------------

    We believe that the periodic review of a fund's derivatives risk 
management program is necessary to determine whether, in light of 
current circumstances, these risks are appropriately being addressed. 
The proposed program review requirement would require each fund to 
develop and adopt procedures to annually review and update the fund's 
derivatives risk management program. This review and update would need 
to include any models (including any VaR calculation models used during 
the covered period),\437\ measurement tools, or policies and procedures 
that are part of, or used in, the program to evaluate their 
effectiveness and reflect changes in risks relating to the use of 
derivatives. However, beyond this, proposed rule 18f-4 would not 
include prescribed review procedures or incorporate specific 
developments that a fund must consider as part of its review. A fund 
might generally consider whether its periodic review procedures should 
include procedures for evaluating regulatory, market-wide, and fund-
specific developments affecting its program.
---------------------------------------------------------------------------

    \437\ Because of the importance of VaR calculations in the 
proposed rule for funds that operate under the risk-based portfolio 
limitation, the proposed element would specifically require that any 
VaR models used by the fund during the covered period be included as 
part of this periodic review and update.
---------------------------------------------------------------------------

    We are also proposing that this periodic review take place at least 
annually. We believe that the program should be reviewed and updated on 
at least an annual basis because the risks of derivatives transactions 
and tools available change and evolve rapidly. An annual review is a 
minimum requirement, but a fund should consider whether more frequent 
reviews are appropriate depending on the circumstances. We expect that 
such a review and update should take place frequently enough to take 
into account the particular risks that may be presented by the fund's 
use of derivatives, including the potential for rapid or significant 
increases in risks in changing market conditions.
    We request comment on the proposed element requiring funds to 
periodically review and update the program.
     Do commenters agree that the rule should specifically 
require that a fund periodically review and update the program and any 
tools that are used as part of the program as proposed?
     As proposed, should we require this review to take place 
at least annually, or should we require a more frequent review, such as 
quarterly (to coincide with proposed reporting to the fund's board 
discussed below)? Should we instead not prescribe a minimum frequency 
for the periodic review and update?
     Are there certain review procedures that the Commission 
should require and/or on which the Commission should provide guidance? 
Should the Commission expand its guidance on regulatory, market-wide, 
and fund-specific developments that a fund's review procedures might 
cover?
3. Administration of the Program
    Proposed rule 18f-4 would expressly require a fund to designate an 
employee or officer of the fund or the fund's investment adviser (who 
may not be a portfolio manager of the fund) responsible for 
administering the policies and procedures of the derivatives risk 
management program, whose designation must be approved by the fund's 
board of directors, including a majority of the directors who are not 
interested persons of the fund.\438\ We believe that having a 
designated individual responsible for managing the program should 
enhance its accountability and effectiveness. The derivatives risk 
manager may also have other roles, including, for example, serving as 
the fund's chief compliance office or chief risk manager (if it has 
one).\439\ Under the proposed rule, the derivatives risk manager must 
be an employee of the fund or its investment adviser, but may not be a 
portfolio manager for the fund.\440\ We recognize that some small 
advisers may have a limited number of employees or officers who are not 
portfolio managers of the fund. In such a case, the fund's chief 
compliance officer might be designated as the program's risk manager 
(with assistance from third parties as appropriate) or the fund or 
adviser may determine that they need to hire new personnel to 
administer the program. In any event, the derivatives risk manager 
should generally be sufficiently knowledgeable about the risks and use 
of derivatives that he or she can effectively fulfill the 
responsibilities of their position.
---------------------------------------------------------------------------

    \438\ Proposed rule 18f-4(a)(3)(ii)(C). This would differ from 
the approach taken in our recent liquidity rulemaking proposal, 
which would not require the designation of a specific person to 
administer the program, but would instead allow the designation of 
the fund's adviser or multiple employees to administer the program. 
We note that the derivatives risk management program condition would 
apply only to a limited subset of funds that choose to use 
derivatives to obtain exposure exceeding 50% of the fund's net 
assets (or that choose to use complex derivatives), while all open-
end funds (other than money market funds) and ETFs would be required 
to have a liquidity program under proposed rule 22e-4. As noted 
above, we believe that the risks of derivatives transactions are 
complex and significant. Having a specific person designated as 
responsible for administering the program rather than a committee or 
group should help to more clearly delineate lines of responsibility 
and oversight over these risks for those funds that choose to engage 
in them.
    \439\ See, e.g., Investment Company Institute, Chief Risk 
Officers in the Mutual Fund Industry: Who are they and what is their 
role within the organization (2007), available at http://www.ici.org/pdf/21437.pdf.
    \440\ A fund could also formally designate an employee or 
officers of the fund's sub-adviser to be responsible for 
administering the derivatives risk management program.
---------------------------------------------------------------------------

    For the same reasons discussed above regarding the maintenance of 
controls that segregate functions of the program from portfolio 
management, we believe that independence of the derivatives risk 
manager is important for a well-functioning program.\441\ If a 
derivatives risk manager were a person making portfolio management 
decisions, the risk manager may be influenced to selectively apply or 
otherwise weaken or not fully comply with the program's requirements if 
the restrictions of the program potentially conflict with the preferred 
investment strategy of the portfolio manager.
---------------------------------------------------------------------------

    \441\ See, e.g., MFDF Guidance, supra note 423.
---------------------------------------------------------------------------

    Unlike the chief compliance officer under rule 38a-1, proposed rule 
18f-4

[[Page 80944]]

would not require that a derivatives risk manager only be removable by 
the board, nor would the board need to approve the derivatives risk 
manager's compensation. While we expect that a derivatives risk manager 
would play an important role, we do not believe that his or her removal 
or compensation would in all cases be so central to the fund's 
investment activities or compliance function to require that risk 
managers should generally be appointed or removed only by the 
board.\442\
---------------------------------------------------------------------------

    \442\ This approach is also consistent with the designation 
process we recently proposed in the liquidity rulemaking proposal. 
See Liquidity Release, supra note 5.
---------------------------------------------------------------------------

    We request comment on the proposed requirement that a program be 
administered by a derivatives risk manager.
     Under the proposed rule, the derivatives risk manager may 
not act as a portfolio manager of the fund. Do commenters agree that 
this is appropriate and would improve the effectiveness of the program? 
If not, why?
     Under the proposed rule, a specific person who is an 
employee or officer of the fund or its adviser would be designated as 
the risk manager. Is this appropriate? Should we instead allow the fund 
to designate the adviser as a whole or a group of people (such as a 
risk committee) as the program's risk manager?
     Is it appropriate to specify that the derivatives risk 
manager may not be a portfolio manager for the fund and must be an 
employee or officer of the fund or its adviser? Would any small fund 
complexes have difficulty meeting the proposed requirement?
     Rule 38a-1(c) prohibits officers, directors, and employees 
of the fund and its adviser from, among other things, coercing or 
unduly influencing a fund's CCO in the performance of their duties. 
Should we include such a prohibition on unduly influencing a fund's 
derivatives risk officer in the proposed risk management condition? 
Why, or why not? Should the Commission prohibit any officers, 
directors, or employees of a fund and its adviser from, directly or 
indirectly, taking any action to coerce, manipulate, mislead, or 
fraudulently influence the derivatives risk officer in the performance 
of his or her responsibilities?
     This requirement would effectively bar funds from 
outsourcing the administration of the derivatives risk manager to third 
parties. Is this appropriate, or should we instead allow third parties 
to administer the program as some funds and investment advisers do with 
respect to their chief compliance officer? Would allowing third parties 
to act as risk managers enhance the program by allowing specialized 
personnel to administer the program or detract from it by allowing for 
a risk manager who may not be as focused on the specific risks of the 
particular fund and its program?
     If we were not to require the independence between the 
derivatives risk manager and the fund's portfolio managers, how could 
we ensure that the program management is not unduly influenced by 
portfolio management personnel who may have conflicting incentives?
     Do commenters agree that it would be appropriate to 
require a fund to designate the fund's derivatives risk manager, 
subject to board approval?
     Should we require the derivatives risk manager to be 
removable only by the fund's board and the manager's compensation to be 
approved by the board as is the case with the chief compliance officer 
of a fund? If so why? Would such a requirement pose significant burdens 
on fund boards?
     Should we include any other administration requirements? 
For example, should we include a requirement for training staff 
responsible for day-to-day management of the program, or for portfolio 
managers, senior management, and any personnel whose functions may 
include engaging in, or managing the risk of, derivatives transactions? 
If we require such training, should that involve setting minimum 
qualifications for staff responsible for carrying out the requirements 
of the program? Should training and education be required with respect 
to any new derivatives instruments that a fund may trade?
4. Board Approval and Oversight
    Under the proposed rule, the fund's derivatives risk management 
program would be administered by the derivatives risk manager, with 
oversight provided by the board. Requiring the derivatives risk manager 
to be responsible for the day-to-day administration of the fund's 
derivatives risk management program, subject to board oversight, is 
consistent with the way we believe many funds currently manage 
derivatives risk.
    We believe that boards should understand the derivatives risk 
management program and the risks it is designed to manage.\443\ 
Accordingly, proposed rule 18f-4 would require each fund to obtain 
initial approval of its written derivatives risk management program 
from the fund's board of directors, including a majority of independent 
directors.\444\ Directors, and particularly independent directors, play 
a critical role in overseeing fund operations, although they may 
delegate day-to-day management to a fund's adviser.\445\ Given the 
board's historical oversight role, we believe it is appropriate to 
require a fund's board to approve the fund's derivatives risk 
management program. This requirement is designed to facilitate scrutiny 
by the board of directors of the derivatives risk management program--
an area where there may potentially be conflicts of interest between 
the investment adviser and the fund with respect to the use of 
derivatives by the fund.
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    \443\ See, e.g., 2011 IDC Report, supra note 385, at 9; MFDF 
Guidance, supra note 423. See also, Gene Gohlke, If I Were a 
Director of a Fund Investing in Derivatives-Key Areas of Risk on 
Which I Would Focus (Nov. 2007), available at http://www.sec.gov/news/speech/2007/spch110807gg.htm.
    \444\ In this Release, we refer to directors who are not 
``interested persons'' of the fund as ``independent directors.'' 
Section 2(a)(19) of the Investment Company Act identifies persons 
who are ``interested persons'' of a fund.
    \445\ See, e.g., Liquidity Release, supra note 5, at 175.
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    In considering whether to approve the program or any material 
changes to it, boards generally should consider the types of 
derivatives transactions in which the fund engages or plans to engage, 
their particular risks, and whether the program sufficiently addresses 
the fund's compliance with its investment guidelines, any applicable 
portfolio limitation, and relevant disclosure. Boards generally should 
consider the adequacy of the program from time to time in light of past 
experience (both by the fund in particular and with market derivatives 
use in general) and recent compliance experiences. Boards may also wish 
to consider best practices used by other fund complexes, or consult 
with other experts familiar with derivatives risk management by similar 
funds or market participants. Directors may satisfy their obligations 
with respect to this initial approval by reviewing summaries of the 
derivatives risk management program prepared by the fund's derivatives 
risk manager, legal counsel, or other persons familiar with the 
derivatives risk management program. The summaries might familiarize 
directors with the salient features of the program and provide them 
with an understanding of how the derivatives risk management program 
addresses the fund's use of derivatives. In considering whether to 
approve a fund's derivatives risk management program, the board may

[[Page 80945]]

wish to consider the nature of the fund's derivatives risk exposures. A 
board also may wish to consider the adequacy of the fund's derivatives 
risk management program in light of recent experiences regarding the 
fund's use of derivatives.\446\
---------------------------------------------------------------------------

    \446\ See also Liquidity Release, supra note 5 (which provides 
similar board oversight of liquidity risk management).
---------------------------------------------------------------------------

    Proposed rule 18f-4 also would require each fund to obtain approval 
of any material changes to the fund's derivatives risk management 
program from the fund's board of directors, including a majority of 
independent directors. As with the initial approval of a fund's 
derivatives risk management program, the requirement to obtain approval 
of any material changes to the fund's derivatives risk management 
program from the board is designed to facilitate independent scrutiny 
of material changes to the derivatives risk management program by the 
board of directors.
    The fund's board would be required under the proposed rule to 
review a written report from the fund's derivatives risk manager, 
provided no less frequently than quarterly, that reviews the adequacy 
of the fund's derivatives risk management program and the effectiveness 
of its implementation.\447\ We believe regular reporting to the board 
should assist boards in being adequately informed about the 
effectiveness and implementation of the program, enhancing their 
oversight ability.\448\ To the extent that a serious compliance issue 
arises under the program, it should be brought to the board's attention 
promptly.\449\ Regular reporting will also help to reduce the risk that 
issues are not addressed promptly and increase the likelihood that the 
derivatives risk manager is actively involved in addressing issues as 
they arise. We believe that this reporting should take place on at 
least a quarterly basis, rather than an annual one, in light of the 
significant impact that derivatives transactions can have on a fund 
over a short period of time.
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    \447\ Proposed rule 18f-4(a)(3)(ii)(B).
    \448\ The derivatives risk manager generally should consider 
whether significant issues should be reported to the adviser or 
board more quickly than in the quarterly report, for example 
pursuant to the requirement laid out in proposed rule 18f-
4(a)(3)(i)(B)(ii).
    \449\ See Compliance Programs of Investment Companies and 
Investment Advisers Release No. 2204, at n.84 (Dec. 17, 2003) [68 FR 
74714 (Dec. 24, 2003)] (``2003 Adopting Release'')(noting, in the 
case of a rule 38a-1 compliance program, that ``[s]erious compliance 
issues must, of course, always be brought to the board's attention 
promptly'').
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    We request comment on the proposed board approval and oversight 
requirements.
     Should the board be required to approve the program and 
any material changes as proposed? If not, why? In the absence of such 
board approval, would a board be able to effectively oversee the 
adequacy of a program?
     Should we require reporting to the board about the 
effectiveness of the program as proposed? Should we require a frequency 
other than quarterly? If so, how frequent and why? Should we not 
require a frequency but instead require periodic reporting as 
appropriate?
     Instead of requiring boards to review the report, should 
we instead take an approach similar to rule 38a-1 and require reports 
to be submitted to the board?

E. Requirements for Financial Commitment Transactions

    The proposed rule also would address and limit funds' use of 
financial commitment transactions. The proposed rule would define a 
``financial commitment transaction'' as any reverse repurchase 
agreement, short sale borrowing, or any firm or standby commitment 
agreement or similar agreement.\450\ The requirements applicable to 
financial commitment transactions in the proposed rule thus would 
address funds' use of the trading practices described in Release 10666, 
as well as short sales of securities.
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    \450\ Proposed rule 18f-4(c)(4). The rule includes, as a similar 
agreement, an agreement under which a fund has obligated itself, 
conditionally or unconditionally, to make a loan to a company or to 
invest equity in a company, including by making a capital commitment 
to a private fund that can be drawn at the discretion of the fund's 
general partner.
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    The proposed rule would require a fund that engages in financial 
commitment transactions in reliance on the rule to maintain qualifying 
coverage assets equal in value to the amount of cash or other assets 
that the fund is conditionally or unconditionally obligated to pay or 
deliver under each of its financial commitment transactions.\451\ The 
proposed rule thus is designed to require the fund to maintain 
qualifying coverage assets equal in value to the fund's full 
obligations under its financial commitment transactions. Because in 
many cases the timing of the fund's payment obligations under a 
financial commitment transaction may be specified under the terms of 
the transaction or the fund may otherwise have a reasonable expectation 
regarding the timing of the fund's payment obligations with respect to 
its financial commitment transactions, the proposed rule would allow 
the fund to maintain as qualifying coverage assets certain other assets 
in addition to cash and cash equivalents, as generally required for 
derivatives transactions.\452\ Qualifying coverage assets for each 
financial commitment transaction would need to be identified on the 
books and records of the fund at least once each business day.
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    \451\ Proposed rule 18f-4(b)(1), (c)(5).
    \452\ Proposed rule 18f-4(c)(8)(iii) (defining ``qualifying 
coverage assets'' for purposes of financial commitment 
transactions).
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    By requiring the fund to maintain qualifying coverage assets to 
cover the fund's full potential obligation under its financial 
commitment transactions, the proposed rule generally would take the 
same approach to these transactions that we applied in Release 10666, 
with some modifications. As we discussed above in section III.A, 
requiring a fund to segregate assets equal in value to the fund's full 
obligations under financial commitment transactions may be an effective 
way both to impose a limit on the amount of leverage a fund could 
obtain through those transactions, and to require the fund to have 
adequate assets to meet its obligations. The asset segregation 
requirement in the proposed rule is designed to limit the amount of 
leverage the fund could obtain through financial commitment 
transactions because the fund could not incur obligations under those 
transactions in excess of the fund's qualifying coverage assets. This 
would limit a fund's ability to incur obligations under financial 
commitment transactions to an amount not greater than the fund's net 
assets. This approach also is designed to help the fund to have 
adequate assets to meet its obligations under financial commitment 
transactions by requiring the fund to have qualifying coverage assets 
equal in value to those obligations.
    Under the proposed rule, the fund's board of directors (including a 
majority of the directors who are not interested persons of the fund) 
would be required to approve policies and procedures reasonably 
designed to provide for the fund's maintenance of qualifying coverage 
assets. We believe that requiring the fund's board to approve the 
policies and procedures, including a majority of the fund's independent 
directors, appropriately would focus the board's attention on the 
fund's management of its obligations under financial commitment 
transactions and the fund's use of the exemption provided by the 
proposed rule. We

[[Page 80946]]

believe that requiring the fund's board to approve these policies and 
procedures, in conjunction with the board's oversight of the fund's 
investment adviser more generally, would be an appropriate role for the 
board.\453\
---------------------------------------------------------------------------

    \453\ Other exemptive rules under the Act similarly require the 
fund's board to take certain actions in order for the fund to rely 
on the exemption provided by the rule. See, e.g., rules 2a-7, 10f-3, 
17a-7, and 18f-3.
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1. Coverage Amount for Financial Commitment Transactions
    Under the proposed rule, a fund would be required to maintain 
qualifying coverage assets for each financial commitment transaction 
with a value equal to at least the amount of the financial commitment 
obligation associated with the transaction.\454\ The proposed rule 
would define the term ``financial commitment obligation'' to mean the 
amount of cash or other assets that the fund is conditionally or 
unconditionally obligated to pay or deliver under a financial 
commitment transaction.\455\ Thus, for example, if a fund commits, 
conditionally or unconditionally, to purchase a security for a stated 
price at a later time under a firm or standby commitment agreement or 
similar agreement, the fund would be required to maintain qualifying 
coverage assets equal in value to the stated purchase price.\456\
---------------------------------------------------------------------------

    \454\ Proposed rule 18f-4(b)(1).
    \455\ Proposed rule 18f-4(c)(5).
    \456\ Similarly, if a fund commits, conditionally or 
unconditionally, to pay cash or other assets as an additional loan 
or contribution to an existing portfolio company under an agreement, 
the fund would be required to maintain qualifying coverage assets 
equal in value to the stated commitment amount.
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    In addition, where the fund is conditionally or unconditionally 
obligated to deliver a particular asset, the financial commitment 
obligation under the proposed rule would equal the value of the asset, 
determined at least once each business day.\457\ Thus, for example, if 
a fund commits to return a security at a later time under a short sale 
borrowing, the fund would be required to maintain qualifying coverage 
assets equal to the value of the security, determined at least once 
each business day. If the fund owns the security it would be required 
to deliver under the short sale borrowing, the fund would satisfy the 
proposed rule's asset segregation requirement by segregating that 
particular security for the same reasons we discuss above in section 
III.C.2.b.\458\
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    \457\ Proposed rule 18f-4(c)(5).
    \458\ Proposed rule 18f-4(b)(1), (c)(5), (c)(8)(ii). As 
described in more detail below, if the fund has pledged assets with 
respect to the short sale borrowing and such assets could be 
expected to satisfy the fund's obligation under the transaction, the 
fund could also satisfy the proposed rule's asset segregation 
requirement by segregating such pledged assets. See proposed rule 
18f-4(c)(8)(iii).
---------------------------------------------------------------------------

    The proposed rule would require the fund to maintain qualifying 
coverage assets to cover the full amount of the fund's obligations 
under its financial commitment transactions, rather than a mark-to-
market and risk-based coverage amount as proposed for derivatives 
transactions, because a fund may in many cases be required to fulfill 
its full obligation under a financial commitment transaction as 
compared to a derivatives transaction. For example, if a fund enters 
into a firm commitment agreement under which it is obligated to 
purchase a security in the future, the fund is required under the 
agreement, and must be prepared, to have sufficient assets to complete 
the transaction. Similarly, if a fund borrows a security from a broker 
as part of a short sale borrowing, the fund is obligated to return the 
security to the broker at the termination of the transaction and must 
be prepared to meet this obligation, either by owning the security or 
having assets available to purchase it in the market. By contrast, 
under many types of derivatives transactions, a fund would generally 
not expect to make payments or deliver assets equal to the full 
notional amount.
    We recognize that certain financial commitment transactions, such 
as standby commitment agreements, are contingent in nature and may not 
always require a fund to fulfill its full potential obligation under 
the transaction. We also recognize that certain derivatives 
transactions, such as written options, could result in a fund having to 
fulfill its full potential obligation under the contract. On balance, 
however, we believe it would be appropriate to require a fund to 
maintain qualifying coverage assets to cover its financial commitment 
obligations, as proposed, to require the fund to have assets to meet 
its financial commitment obligations. We also note that, as discussed 
in more detail below, the proposed rule would permit a fund to use 
assets other than cash and cash equivalents as qualifying coverage 
assets for financial commitment transactions. In this way the proposed 
rule is designed both to require a fund to have assets to meet its 
financial commitment obligations and to address concerns that might be 
raised if the fund were required to maintain cash and cash equivalents 
for the fund's longer-term financial commitment obligations. We also 
believe that this approach would be consistent with funds' current 
practices in that we understand that funds that rely on Release 10666 
when entering into financial commitment transactions generally 
segregate assets to cover the funds' full potential obligations under 
these transactions.
    In addition, by requiring the fund to maintain qualifying coverage 
assets equal in value to the fund's aggregate financial commitment 
obligations, the proposed rule also would impose a limit on the amount 
of leverage a fund could obtain through financial commitment 
transactions. This is because a fund relying on the rule would not be 
permitted to incur obligations under financial commitment transactions 
in excess of the fund's qualifying coverage assets. As noted in section 
III.C.2.c, the total amount of a fund's qualifying coverage assets 
could not exceed the fund's net assets.\459\ As a result, the fund's 
financial commitment obligations could not exceed the fund's net assets 
under the proposed rule.
---------------------------------------------------------------------------

    \459\ Proposed rule 18f-4(c)(8).
---------------------------------------------------------------------------

    We have proposed to limit the total amount of fund assets available 
for use as qualifying coverage assets because, absent this provision, 
the proposed rule would not impose an effective limit on the amount of 
leverage a fund could obtain through financial commitment transactions. 
This is because, in addition to creating a liability for the fund, some 
financial commitment transactions also generate proceeds that increase 
the total assets of the fund. If the total amount of a fund's 
qualifying coverage assets was not reduced to reflect the fund's 
liability from these transactions, the requirement to maintain 
qualifying coverage assets would not provide an effective limit on the 
fund's ability to enter into those transactions because a financial 
commitment transaction can generate fund assets that could otherwise be 
used as qualifying coverage assets.
    Take, for example, a fund that has $100 in assets and no 
liabilities or senior securities outstanding. The fund then borrows a 
security from a broker and sells it short, generating $10 on the sale. 
The fund would then have $110 in total assets and a corresponding 
liability of $10. If the fund were not required to reduce the total 
amount of its qualifying coverage assets by the amount of the liability 
from this transaction, the fund would have $110 in total assets that 
potentially could be used as qualifying coverage assets if they 
otherwise met the rule's requirements for qualifying coverage assets; 
the fund's selling a security short could be viewed as increasing the 
fund's ability to engage in

[[Page 80947]]

transactions requiring asset segregation under the proposed rule 
because the transaction itself generated assets. The proposed rule 
would require the fund to reduce the amount of otherwise available 
qualifying coverage assets by the amount of the liability from the 
short sale in this example (i.e., $10) so that the requirement to 
maintain qualifying coverage assets would impose an effective limit on 
the amount of leverage a fund could obtain through financial commitment 
transactions.\460\
---------------------------------------------------------------------------

    \460\ In addition, and as discussed in more detail in section 
III.C.2.c, the limit on the total amount of a fund's qualifying 
coverage assets also is designed to prohibit a fund from entering 
into financial commitment transactions or issuing other senior 
securities and then using the proceeds of such leveraging 
transactions as assets that would then support an additional layer 
of leverage through financial commitment transactions or derivatives 
transactions under the proposed rule.
---------------------------------------------------------------------------

    Finally, as noted above, a fund's qualifying coverage assets for 
its financial commitment transactions, like the qualifying coverage 
assets for the fund's derivatives transactions, would be required to be 
identified on the fund's books and records and determined at least once 
each business day.\461\ This requirement is designed so that the fund's 
assessments of the extent of its financial commitment obligations and 
the eligibility of its segregated assets as qualifying coverage assets 
(discussed below) remain reasonably current because the value of 
certain qualifying coverage assets and the amount of certain financial 
commitment obligations may fluctuate on a daily basis. Based on staff 
experience, we believe that this frequency of determination would be 
consistent with funds' current practices because funds that engage in 
financial commitment transactions today do so in reliance on Release 
10666.'' \462\
---------------------------------------------------------------------------

    \461\ Proposed rule 18f-4(b)(1).
    \462\ See Release 10666, supra note 20, at discussion of 
``Segregated Account.''
---------------------------------------------------------------------------

    We request comment on all aspect of the proposed rule's requirement 
that a fund maintain assets in respect of the financial commitment 
obligation for its financial commitment transactions and the 
requirement that the fund's qualifying coverage assets be identified on 
the fund's books and records and determined at least once each business 
day.
     The proposed rule's approach to financial commitment 
transactions, as discussed above, is based on the approach we took in 
Release 10666 for financial commitment transactions and is designed to 
impose a limit on the amount of leverage a fund could obtain through 
those transactions, and to require the fund to have adequate assets to 
meet its obligations. Do commenters agree with the proposed rule's 
approach to financial commitment transactions? Do commenters believe 
that it would be effective in addressing concerns about leverage and 
adequacy of assets in connection with a fund's use of financial 
commitment transactions?
     Is the definition of financial commitment transaction 
obligation sufficiently clear to allow a fund to determine the amount 
of assets necessary to comply with the rule? Does the definition 
adequately capture all of a fund's potential obligations under a 
financial commitment transaction?
     Should we continue to require funds to segregate their 
full potential obligation under financial commitment transactions, 
consistent with Release 10666? Or, should we instead treat financial 
commitment transactions similar to derivatives transactions and require 
funds to segregate the mark-to-market coverage amount and a risk-based 
coverage amount for each financial commitment transaction? If we were 
to take this approach, are there types of financial commitment 
transactions for which it may be difficult to determine a mark-to-
market coverage amount because, for example, there are not market 
prices available for the transactions?
     Under the proposed rule, all financial commitment 
transactions would be subject to the same asset segregation 
requirement, regardless of whether the fund's obligation under the 
transaction is conditional or whether the amount of the financial 
commitment obligation could fluctuate over time. Should we treat 
conditional financial commitment transactions, such as standby 
commitment agreements, differently than financial commitment 
transactions where the obligations are not conditional? If so, how 
should the asset segregation requirement differ? Should these 
conditional financial commitment transactions be treated like 
derivatives transactions? Should we treat short sales, which have a 
financial commitment obligation that can vary over time, differently 
than other financial commitment transactions that have a fixed 
financial commitment obligation amount? If so, how should the asset 
segregation requirement differ? Should short sales be treated like 
derivatives transactions and require a risk-based coverage amount or 
some other amount designed to address future losses?
     The asset segregation requirement in the proposed rule 
would effectively impose a limit on the fund's ability to enter into 
financial commitment transactions by limiting the total amount of a 
fund's qualifying coverage assets and providing that qualifying 
coverage assets shall not exceed the fund's net assets. Does the 
proposed rule appropriately limit the extent to which funds should be 
permitted to enter into financial commitment transactions? Should the 
proposed rule include a separate portfolio limitation, similar to the 
150% portfolio limitation on derivatives transactions in the exposure-
based portfolio limit, rather than limiting the extent to which a fund 
could incur obligations under financial commitment transactions 
indirectly through the asset segregation requirement? If so, should 
that limit be 100% of the fund's net assets (consistent with the 
proposed rule's limit on the total amount of qualifying coverage 
assets)? Should it be lower, such as 50% of the fund's net assets, or 
higher, such as the 150% limitation applicable to derivatives 
transactions under the exposure-based portfolio limit? Are there other 
limits, higher or lower, that would be appropriate?
     The proposed rule would require a fund to identify and 
determine its qualifying coverage assets for its financial commitment 
obligations at least once each business day. Should the proposed rule 
instead require the fund to identify and determine these qualifying 
coverage assets more or less frequently?
2. Qualifying Coverage Assets for Financial Commitment Transactions
    Under the proposed rule, ``qualifying coverage assets'' in respect 
of a financial commitment transaction would be fund assets that are: 
(1) Cash and cash equivalents; (2) with respect to any financial 
commitment transaction under which the fund may satisfy its obligations 
under the transaction by delivering a particular asset, that particular 
asset; or (3) assets that are convertible to cash or that will generate 
cash, equal in amount to the financial commitment obligation, prior to 
the date on which the fund can be expected to be required to pay such 
obligation or that have been pledged with respect to the financial 
commitment obligation and can be expected to satisfy such obligation, 
determined in accordance with policies and procedures approved by the 
fund's board of directors.\463\ The total amount of a fund's qualifying 
coverage assets could not exceed the fund's net assets.\464\
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    \463\ Proposed rule 18f-4(c)(8).
    \464\ Proposed rule 18f-4(c)(8). In addition, qualifying 
coverage assets used to cover a financial commitment transaction 
could not also be used to cover a derivatives transaction. Proposed 
rule 18f-4(c)(8).

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[[Page 80948]]

    For financial commitment transactions, the proposed rule would 
permit a fund to maintain assets in addition to cash and cash 
equivalents, as proposed for derivatives transactions, as qualifying 
coverage assets for the fund's financial commitment transactions.\465\ 
This is because we understand that funds use financial commitment 
transactions for a variety of financial and investment purposes, 
including obtaining financing for investments acquired (or to be 
acquired) by the fund and establishing contractual relationships under 
which the fund agrees to make or acquire loans, debt securities or 
additional interests in portfolio companies in the future. In many 
cases, the timing of the fund's payment obligations may be specified 
under the terms of the financial commitment or the fund may otherwise 
have a reasonable expectation regarding the timing of the fund's 
payment obligations with respect to its financial commitment 
transactions. In addition, certain financial commitment transactions 
require a fund to pledge assets having an aggregate value that is 
greater than the financial commitment obligation and, given that the 
amount and value of these assets will have been evaluated both by the 
fund and its counterparty, we believe that such assets would generally 
be expected to satisfy the fund's obligation under such financial 
commitment transaction unless there subsequently occurs a material 
reduction in the value of such assets.
---------------------------------------------------------------------------

    \465\ Proposed rule 18f-4(c)(8).
---------------------------------------------------------------------------

    The proposed rule therefore would permit a fund to maintain assets 
that are convertible to cash or that will generate cash, equal in 
amount to the financial commitment obligation, prior to the date on 
which the fund can be expected to be required to pay its financial 
commitment obligation or that have been pledged with respect to a 
financial commitment obligation and can be expected to satisfy such 
obligation, determined in accordance with policies and procedures 
approved by the fund's board of directors.\466\ For example, if a fund 
enters into a firm commitment agreement whereby the fund agrees to 
purchase a security from a counterparty at a future date and at a 
stated price, the fund would know at the outset of the transaction the 
date on which the obligation is due and the full amount of the 
obligation. Rather than being required to maintain cash and cash 
equivalents equal in value to the amount of this obligation--which the 
fund may not be required to pay for some time--the proposed rule would 
permit the fund to maintain assets that are convertible to cash or that 
will generate cash prior to the date on which the fund can be expected 
to be required to pay such obligation, determined in accordance with 
board-approved policies and procedures.
---------------------------------------------------------------------------

    \466\ Proposed rule 18f-4(c)(8)(iii). As noted above, where the 
fund is conditionally or unconditionally obligated to deliver a 
particular asset, the fund also could satisfy the proposed rule's 
asset segregation requirements by segregating that particular asset. 
Proposed rule 18f-4(c)(8)(ii).
---------------------------------------------------------------------------

    In this example, if the purchase price of the firm commitment is 
$100 and the transaction will be completed on a fixed date, the fund, 
if consistent with its policies and procedures relating to qualifying 
coverage assets, could segregate a fixed-income security with a value 
of $100 or more that would pay $100 or more upon maturity and would 
mature in time for the fund to use the principal payment to complete 
the firm commitment transaction. As another example, the fund could, if 
consistent with its policies and procedures relating to qualifying 
coverage assets, segregate a fixed-income security with a value of $100 
or more that would generate $100 or more in interest payments that the 
fund could use to complete the firm commitment agreement.
    Qualifying coverage assets under the proposed rule include assets 
that are convertible to cash or able to generate cash, equal in amount 
to the financial commitment obligation, prior to the date on which the 
fund can be expected to be required to pay such obligation.\467\ Where 
the fund can be expected to pay the obligation on a short-term basis, 
the assets maintained by the fund as qualifying coverage assets also 
would have to be convertible to cash or able to generate cash on a 
short-term basis. For example, if the fund has entered into a standby 
commitment agreement and the fund could be expected to be required to 
pay the purchase price under the agreement on a short-term basis, the 
fund would need to segregate assets that could be convertible to cash 
or able to generate cash in a short period of time to enable the fund 
to meet its expected obligation. We would expect these assets to be 
highly liquid assets given the short-term nature of the fund's 
obligation under the transaction and the proposed rule's requirement 
that qualifying coverage assets be convertible to cash or generate 
cash, equal in amount to the financial commitment obligation, prior to 
the date on which the fund can be expected to be required to pay such 
obligation.
---------------------------------------------------------------------------

    \467\ Proposed rule 18f-4(c)(8).
---------------------------------------------------------------------------

    The proposed rule would require that an asset's convertibility to 
cash or the ability to generate cash, and the date on which the fund 
can be expected to be required to pay the financial commitment 
obligation, be determined in accordance with policies and procedures 
approved by the fund's board of directors.\468\ By requiring funds to 
establish appropriate policies and procedures, rather than prescribing 
specific segregation methodologies, the proposed rule is designed to 
allow funds to assess and determine when they can be required to pay 
financial commitment obligations and their assets' convertibility to 
cash or ability to generate cash based on the funds' specific financial 
commitment transactions and investment strategies. As with respect to 
the determination of risk-based coverage amounts for derivatives 
transactions, we believe that funds are best situated to evaluate their 
obligations under their financial commitment transactions and the 
eligibility of their assets to be used as qualifying coverage assets 
based on an assessment of their own particular facts and circumstances.
---------------------------------------------------------------------------

    \468\ Proposed rule 18f-4(c)(8).
---------------------------------------------------------------------------

    We note that, if we adopt proposed rule 22e-4, funds subject to 
that rule already would be considering their assets' convertibility to 
cash in order to comply with rule 22e-4, as explained in more detail in 
the Liquidity Release.\469\ In classifying and reviewing the liquidity 
of portfolio positions, proposed rule 22e-4 would require the fund to 
consider the number of days within which the fund's position in a 
portfolio asset (or portions of a position in a particular asset) would 
be convertible to cash at a price that does not materially affect the 
value of that asset immediately prior to sale.\470\ Proposed rule 22e-4 
would require the fund to consider certain specified factors in 
classifying the liquidity of its portfolio positions.\471\ Funds

[[Page 80949]]

undertaking this analysis for purposes of rule 22e-4 thus already would 
have considered their assets' convertibility to cash and could use this 
analysis (and related policies and procedures) for purposes of rule 
18f-4.
---------------------------------------------------------------------------

    \469\ Proposed rule 22e-4(b)(2)(i).
    \470\ Liquidity Release, supra note 5.
    \471\ Liquidity Release, supra note 5. Specifically, proposed 
rule 22e-4 would require the fund to consider the following factors, 
to the extent applicable: (1) Existence of an active market for the 
asset, including whether the asset is listed on an exchange, as well 
as the number, diversity, and quality of market participants; (2) 
frequency of trades or quotes for the asset and average daily 
trading volume of the asset (regardless of whether the asset is a 
security traded on an exchange); (3) volatility of trading prices 
for the asset; (4) bid-ask spreads for the asset; (5) whether the 
asset has a relatively standardized and simple structure; (6) for 
fixed income securities, maturity and date of issue; (7) 
restrictions on trading of the asset and limitations on transfer of 
the asset; (8) the size of the fund's position in the asset relative 
to the asset's average daily trading volume and, as applicable, the 
number of units of the asset outstanding; and (9) relationship of 
the asset to another portfolio asset. See Id., at section III.A.
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    Although not every fund that would be subject to proposed rule 18f-
4 would be subject to proposed rule 22e-4, to the extent that fund 
advisers and third-party service providers develop methodologies or 
other tools for assessing positions' convertibility to cash in a manner 
consistent with proposed rule 22e-4, we anticipate that such tools 
could be used by all funds subject to proposed rule 18f-4 in assessing 
convertibility to cash for purposes of rule 18f-4. Thus, closed-end 
funds and BDCs, which are not within the scope of proposed rule 22e-4 
but which may enter into financial commitment transactions, could 
nevertheless employ tools that were developed in response to proposed 
rule 22e-4 in determining whether an asset is a qualifying coverage 
asset.\472\ In sum, although proposed rule 18f-4 would not require the 
fund's policies and procedures to include the factors specified in 
proposed rule 22e-4, funds may find it efficient to consider those 
factors and methodologies and tools designed to address them.
---------------------------------------------------------------------------

    \472\ Money market funds also are not proposed to be subject to 
the requirements of proposed rule 22e-4 because they are subject to 
extensive requirements concerning the liquidity of their portfolio 
assets under rule 2a-7. See Liquidity Release, supra note 138. Under 
rule 2a-7, money market funds are required to limit their 
investments to short-term, high-quality debt securities that 
fluctuate very little in value under normal market conditions. Money 
market funds thus do not engage in derivatives transactions, but may 
enter into certain financial commitment transactions to the extent 
permitted under rule 2a-7. Although money market funds could choose 
to evaluate their assets' convertibility to cash using the factors 
in proposed rule 22e-4, we generally would expect that they would 
not need to do so for purposes of proposed rule 18f-4 because we 
expect that a money market fund, in order to comply with the 
conditions of rule 2a-7 (including the rule's liquidity requirements 
and limitations on the maturity of portfolio assets), already would 
be evaluating when its assets will generate cash (or be convertible 
to cash) and when it could be expected to pay its financial 
commitment obligations.
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    The proposed rule would also allow a fund to use, as qualifying 
coverage assets, assets that have been pledged with respect to a 
financial commitment obligation and can be expected to satisfy such 
obligation.\473\ For example, assets that are pledged by a fund to its 
broker in connection with a short sale borrowing that can be expected 
to satisfy the fund's obligations under such transaction could, if 
consistent with the fund's policies and procedures relating to 
qualifying coverage assets, be segregated on the fund's books and 
records as qualifying coverage assets for such short sale transaction. 
Assets that a fund has transferred to its counterparty in connection 
with a reverse repurchase agreement could be regarded as having been 
pledged by the fund for purposes of paragraph (c)(8)(iii) of the 
proposed rule. If such assets can be expected to satisfy the fund's 
obligations under such transaction, the fund could, if consistent with 
its policies and procedures relating to qualifying coverage assets, 
segregate such assets on its books and records as qualifying coverage 
assets for such transaction.
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    \473\ Proposed rule 18f-4(c)(8)(iii).
---------------------------------------------------------------------------

    We request comment on all aspects of the proposed rule's 
requirements for qualifying coverage assets for financial commitment 
transactions.
     Do commenters agree that it is appropriate to permit a 
fund to maintain assets in addition to cash and cash equivalents as 
qualifying coverage assets for the fund's financial commitment 
transactions? Should we, instead, require funds to use cash and cash 
equivalents, as proposed for derivatives transactions, or otherwise 
specify the types or liquidity profiles of assets that may be used? 
Should we specify that certain types of assets should not be included 
as qualifying coverage assets?
     Do commenters agree that, in many cases, the timing of the 
fund's payment obligations may be specified under the terms of the 
financial commitment or the fund may otherwise have a reasonable 
expectation regarding the timing of the fund's payment obligations with 
respect to its financial commitment transactions? If so, do commenters 
agree that the proposed rule appropriately recognizes this aspect of 
many types of financial commitment transactions by permitting a fund to 
segregate assets that are convertible to cash or that will generate 
cash prior to the date on which the fund can be expected to be required 
to pay its financial commitment obligations, determined in accordance 
with board-approved policies and procedures?
     Under the proposed rule, qualifying coverage assets in 
respect of a financial commitment transaction would include fund assets 
that have been pledged by the fund with respect to the financial 
commitment obligation and can be expected to satisfy such obligation. 
Do commenters agree that such assets should be considered qualifying 
coverage assets? Does the proposed rule appropriately describe such 
assets? Are there additional requirements that we should impose on the 
use of such assets as qualifying coverage assets?
     The proposed rule would require that an asset's 
convertibility to cash or the ability to generate cash, and the date on 
which the fund can be expected to be required pay the financial 
commitment obligation, be determined in accordance with policies and 
procedures approved by the fund's board of directors. Do commenters 
agree that it is appropriate to allow funds to assess and determine 
when they can be expected to be required to pay financial commitment 
obligations and their assets' convertibility to cash or ability to 
generate cash based on the funds' specific financial commitment 
transactions and investment strategies?
     The proposed rule would not specify the particular factors 
that must be included in a fund's policies and procedures for purposes 
of determining an asset's convertibility to cash or the ability to 
generate cash, and the date on which the fund can be expected to be 
required to pay the financial commitment obligation. Are there 
particular factors we should specify in any final rule? We noted above 
that, in developing these policies and procedures, a fund could 
consider the factors specified in proposed rule 22e-4. Should we 
specifically require that a fund's policies and procedures include the 
factors specified in rule 22e-4 if we adopt that rule? If so, should 
only those funds subject to the requirements of proposed rule 22e-4 be 
required to include those factors? Should we specify additional 
factors? If so, what factors should be specified?
     The proposed rule would allow a fund to segregate as 
qualifying coverage assets any assets that are convertible to cash or 
that will generate cash equal in amount equal to the financial 
commitment obligation prior to the date on which the fund can be 
expected to be required to pay such obligation. Should we instead allow 
a fund to segregate specific types of assets subject to a haircut? If 
so, how should we determine the appropriate haircut? For example, 
should we incorporate the haircuts described in the SEC's proposed rule 
on Capital, Margin, and Segregation Requirements for Security-Based 
Swap Dealers and Major Security-Based Swap Participants and Capital 
Requirements for Broker-Dealers? \474\ Or should we incorporate the 
haircut schedule included in the rules adopted by the banking 
regulators for covered

[[Page 80950]]

swap entities? \475\ Is there a different haircut schedule that would 
be more appropriate for the proposed rule?
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    \474\ See Margin and Capital Proposing Release, supra note 363.
    \475\ See Prudential Regulator Margin and Capital Adopting 
Release, supra note 160.
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F. Recordkeeping

    Proposed rule 18f-4 also would include certain recordkeeping 
requirements relating to the fund's selection of a portfolio 
limitation; its compliance with the other requirements of the proposed 
rule; and if the fund is required to implement a formalized derivatives 
risk management program, records of the program's policies and 
procedures, and any materials provided to the board of directors 
related to its operation.\476\ All the records would be required to be 
kept for 5 years (the first 2 years in an easily accessible 
place).\477\
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    \476\ Proposed rule 18f-4(a)(6).
    \477\ The proposed recordkeeping time period is consistent with 
the retention periods in rule 38a-1 and proposed rule 22e-4. As we 
explained in the Liquidity Release with respect to proposed rule 
22e-4, we believe consistency in these retention periods is 
appropriate because funds currently have program-related 
recordkeeping procedures in place incorporating a five-year 
retention period, which we believe would lessen the compliance 
burden to funds slightly, compared to choosing a different retention 
period, such as the six-year recordkeeping retention period under 
rule 31a-2 under the Act. Taking this into account, we believe a 
five-year retention period is a sufficient period of time for our 
examination staff to evaluate whether a fund is in compliance (and 
has been in compliance) with the proposed rule and anticipate that 
such information would become less relevant if extended beyond a 
five-year retention period. Furthermore, we believe that the 
proposed five-year retention period appropriately balances 
recordkeeping-related burdens on funds. See Liquidity Release, supra 
note 5, concerning the five-year retention periods included in 
proposed rule 22e-4.
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    First, the proposed rule would require a fund to maintain a record 
of each determination made by the fund's board that the fund will 
comply with one of the portfolio limitations under the proposed rule, 
which would include the fund's initial determination as well as a 
record of any determination made by the fund's board to change the 
portfolio limitation.\478\ Such a record should allow our examiners to 
better evaluate compliance with the proposed exemptive rule.
---------------------------------------------------------------------------

    \478\ See proposed rule 18f-4(a)(6)(i). The fund would be 
required to maintain this record for a period of not less than five 
years (the first two years in an easily accessible place) following 
each determination.
---------------------------------------------------------------------------

    Second, the proposed rule would require the fund to maintain 
certain records so that the fund's ongoing compliance with the 
conditions of the proposed rule can be evaluated by our examiners or 
the fund's board or compliance personnel. Specifically, the fund would 
be required to maintain a written copy of the policies and procedures 
approved by the board regarding the fund's maintenance of qualifying 
coverage assets, as required under the proposed rule.\479\ The fund 
also would be required to maintain a written record demonstrating that 
immediately after the fund entered into any senior securities 
transaction, the fund complied with the portfolio limitation applicable 
to the fund immediately after entering into the senior securities 
transaction, reflecting the fund's aggregate exposure, the value of the 
fund's net assets and, if applicable, the fund's full portfolio VaR and 
its securities VaR.\480\
---------------------------------------------------------------------------

    \479\ See proposed rule 18f-4(a)(6)(ii) (derivatives 
transactions); proposed rule 18f-4(b)(3) (financial commitment 
transactions). The fund would be required to maintain these policies 
and procedures that are in effect, or at any time within the past 
five years were in effect, in an easily accessible place.
    \480\ See proposed rule 18f-4(a)(6)(iv). The fund would be 
required to maintain this record for a period of not less than five 
years (the first two years in an easily accessible place) following 
each senior securities transaction.
---------------------------------------------------------------------------

    The fund also would be required to maintain written records 
reflecting the fund's mark-to-market and risk-based coverage amounts 
and the fund's financial commitment obligations, and identifying the 
qualifying coverage assets maintained by the fund to cover these 
amounts.\481\ For derivatives transactions, the fund would be required 
to maintain written records identifying the qualifying coverage assets 
maintained by the fund to cover the aggregate amount of its mark-to-
market and risk-based coverage amounts--rather than identifying the 
qualifying coverage assets maintained in respect of each specific 
derivatives transaction--because the proposed rule generally would 
require the fund to maintain cash and cash equivalents for its 
derivatives transactions.\482\ For financial commitment transactions, 
the fund would be required to maintain written records identifying the 
specific qualifying coverage assets maintained by the fund to cover 
each financial commitment transaction in order to allow our examination 
staff to evaluate whether, as required under the proposed rule, the 
qualifying coverage assets maintained for specific financial commitment 
transactions are assets that are convertible to cash or that will 
generate cash, equal in amount to the financial commitment obligation, 
prior to the date on which the fund can be expected to be required to 
pay such obligation or that have been pledged with respect to the 
financial commitment obligation and can be expected to satisfy such 
obligation, determined in accordance with the fund's policies and 
procedures.\483\
---------------------------------------------------------------------------

    \481\ See proposed rule 18f-4(a)(6)(v); proposed rule 18f-
4(b)(3)(ii). The fund would be required to determine these amounts 
and identify qualifying coverage assets at least once each business 
day, and would be required to maintain these records for a period of 
not less than five years (the first two years in an easily 
accessible place).
    \482\ See proposed rule 18f-4(a)(6)(v).
    \483\ See proposed rule 18f-4(b)(3)(ii).
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    Finally, the proposed rule would require a fund to maintain records 
relating to the derivatives risk management program, if the fund is 
required to adopt and implement a derivatives risk management 
program.\484\ The proposed rule would require funds to maintain a 
written copy of the policies and procedures approved by the board.\485\ 
It would also require funds to maintain records of any materials 
provided to the board in connection with its approval of the program, 
as well as any written reports provided to the board relating to the 
program \486\ and records documenting periodic updates and reviews 
required as part of the risk management program.\487\ Such records 
should serve to provide data about the operation of a fund's program to 
better allow our examiners and compliance personnel to evaluate 
compliance with the conditions of the proposed rule.
---------------------------------------------------------------------------

    \484\ See proposed rule 18f-4(a)(6)(iii).
    \485\ See proposed rule 18f-4(a)(6)(iii)(A). The fund would be 
required to maintain a written copy of the policies and procedures 
that are in effect, or at any time within the past five years were 
in effect, in an easily accessible place.
    \486\ See proposed rule 18f-4(a)(6)(iii)(B). The fund would be 
required to maintain these records for at least five years after the 
end of the fiscal year in which the documents were provided to the 
fund's board, the first two years in an easily accessible place.
    \487\ Specifically, the fund would be required to maintain 
records documenting the periodic reviews and updates conducted in 
accordance with paragraph (a)(3)(i)(D) of the proposed rule 
(including any updates to any VaR calculation models used by the 
fund and the basis for any material changes thereto), for a period 
of not less than five years (the first two years in an easily 
accessible place) following each review or update. See Proposed rule 
18f-4(a)(6)(iii)(C). We note that, because of the importance of VaR 
models under the rule, this provision would require funds to 
maintain records explaining the basis for any material changes to 
the VaR calculation models used during the covered period.
---------------------------------------------------------------------------

    We request comment on the proposed rule's recordkeeping 
requirements.
     Should we require such recordkeeping provisions? Are there 
any other records relating to a fund's senior securities transactions 
that a fund should be required to maintain?
     The proposed rule's recordkeeping requirements generally 
are designed to allow our examiners or the fund's board or compliance 
personnel to evaluate the fund's ongoing compliance with the proposed 
rule's conditions. Do commenters believe that the proposed rule's 
recordkeeping requirements

[[Page 80951]]

would appropriately balance recordkeeping-related burdens on funds? Are 
there feasible alternatives to the proposed recordkeeping requirements 
that would minimize recordkeeping burdens, including the costs of 
maintaining the required records?
     We specifically request comment on any alternatives to the 
proposed recordkeeping requirements that would minimize recordkeeping 
burdens on funds, on the utility and necessity of the proposed 
recordkeeping requirements in relation to the associated costs and in 
view of the public benefits derived, and on the effects that additional 
recordkeeping requirements would have on funds' internal compliance 
policies and procedures. Are the record retention time periods that we 
have selected appropriate? Should we require records to be maintained 
for a longer or shorter period? If so for how long?

G. Amendments to Proposed Forms N-PORT and N-CEN

    On May 20, 2015, in an effort to modernize and enhance the 
reporting and disclosure of information by investment companies, we 
issued a series of proposals, including proposals for two new reporting 
forms. First, our proposal would require registered management 
investment companies and ETFs organized as unit investment trusts, 
other than registered money market funds or small business investment 
companies, to electronically file with the Commission monthly portfolio 
investment information on proposed Form N-PORT.\488\ As we discussed in 
the Investment Company Reporting Modernization Release, we believe that 
the information that would be filed on proposed Form N-PORT would 
enhance the Commission's ability to effectively oversee and monitor the 
activities of investment companies in order to better carry out its 
regulatory functions. We also stated that we believe that the 
information on proposed Form N-PORT would allow investors and other 
potential users to better understand investment strategies and risks, 
and help investors make more informed investment decisions.\489\
---------------------------------------------------------------------------

    \488\ Submissions on Form N-PORT would be required to be 
submitted no later than 30 days after the close of each month. Only 
information reported for the third month of each fund's fiscal 
quarter on Form N-PORT would be publicly available, and such 
information would not be made public until 60 days after the end of 
the third month of the fund's fiscal quarter. See Investment Company 
Reporting Modernization Release, supra note 138.
    \489\ See id.
---------------------------------------------------------------------------

    Among other things, proposed Form N-PORT would require funds to 
disclose certain risk metrics--specifically, the delta for derivatives 
instruments with optionality,\490\ as well as the portfolio's interest 
rate risk (DV01) \491\ and credit spread risk (SDV01/CR01/CS01).\492\ 
As we stated in the Investment Company Reporting Modernization Release, 
disclosure of delta--a measure of the sensitivity of an option's value 
to changes in the price of the referenced asset--would provide the 
Commission, investors, and other potential users with an important 
measurement of the impact, on a fund or group of funds that hold 
options on an asset, of a change in such asset's price. Moreover, 
disclosure of delta would assist the Commission and others with 
measuring exposure to leverage through options, which would allow the 
Commission, investors, and other potential users to better understand 
the risks that the fund faces as asset prices change, because the use 
of this type of leverage can magnify losses or gains in assets.
---------------------------------------------------------------------------

    \490\ See Item C.11.c.iii.1 of proposed Form N-PORT.
    \491\ See Item B.3.a of proposed Form N-PORT.
    \492\ See Item B.3.b of proposed Form N-PORT.
---------------------------------------------------------------------------

    Second, all registered investment companies, including money market 
funds but excluding face amount certificate companies, would be 
required to file annual reports on proposed Form N-CEN.\493\ Proposed 
Form N-CEN would require these registered investment companies to 
provide census-type information that would assist our efforts to 
modernize the reporting and disclosure of information by registered 
investment companies and enhance the staff's ability to carry out its 
regulatory functions, including risk monitoring and analysis of the 
industry.\494\ Among other things, proposed Form N-CEN would require 
funds to report whether they relied upon certain enumerated rules under 
the Act during the reporting period.\495\ We proposed to collect this 
information to better monitor reliance on exemptive rules and assist us 
with our accounting, auditing and oversight functions, including, for 
some rules, compliance with the Paperwork Reduction Act.\496\
---------------------------------------------------------------------------

    \493\ See Investment Company Reporting Modernization Release, 
supra note 138.
    \494\ Id.
    \495\ Item 31 of proposed Form N-CEN.
    \496\ See Investment Company Reporting Modernization Release, 
supra note 138, at Part II.E.4.c.iv.
---------------------------------------------------------------------------

1. Reporting of Risk Metrics by Funds That Are Required To Implement a 
Derivatives Risk Management Program
    In the Investment Company Reporting Modernization Release, we 
requested comment on our proposal to require funds to report on Form N-
PORT certain portfolio- and position-level risk metrics. We also 
requested comment on additional risk metrics such as gamma, which 
enables more precise position-level estimation of sensitivity to 
underlying price movements, and vega, which provides position-level 
sensitivity to volatility. The proposal requested comment on whether 
gamma and vega would enhance the utility of the derivatives information 
reported in Form N-PORT and the costs and burdens to funds and benefits 
to investors and other potential users of requiring funds to report 
such risk metrics.
    We received several comment letters relating to our proposal to 
require funds to report certain portfolio- and position-level risk 
metrics. Some commenters reflected positively on our proposal, noting 
that risk metrics could allow the Commission to better understand the 
risks associated with investments in derivatives.\497\ However, another 
commenter questioned the utility of reporting risk metrics, such as 
delta, given the time-lag associated with reporting on Form N-
PORT.\498\ Others expressed concern with making specific risk metrics 
public, as, given the inherent subjectivity of computing risk metrics, 
disclosure could be of limited utility and potentially confusing for 
investors.\499\
---------------------------------------------------------------------------

    \497\ See, e.g., Comment Letter of CFA Institute on Investment 
Company Reporting Modernization (Aug. 10, 2015) (File No. S7-08-15), 
available at http://www.sec.gov/comments/s7-08-15/s70815-228.pdf, at 
6-7; Comment Letter of Interactive Data Pricing and Reference Data 
LLC on Investment Company Reporting Modernization (Aug. 10, 2015) 
(File No. S7-08-15), available at http://www.sec.gov/comments/s7-08-15/s70815-329.pdf, at 1, 9-11; Comment Letter of State Street 
Corporation on Investment Company Reporting Modernization (Aug. 11, 
2015) (File No. S7-08-15), available at http://www.sec.gov/comments/s7-09-15/s70915-27.pdf, at 3-4 (specifically recommending, among 
other risk metrics, that Form N-PORT require disclosure of vega); 
Comment Letter of Pioneer Investments (Aug. 11, 2015) (File No. S7-
08-15), available at http://www.sec.gov/comments/s7-08-15/s70815-302.pdf, at 13 (supporting the Commission's desire to standardize 
disclosure and increase transparency regarding a fund's derivative 
usage, and recommending that derivative reporting be subject to a de 
minimis threshold).
    \498\ See, e.g., Comment Letter of Dreyfus Corporation on 
Investment Company Reporting Modernization (Aug. 11, 2015) (File No. 
S7-08-15), available at http://www.sec.gov/comments/s7-08-15/s70815-333.pdf, at 3, 10.
    \499\ See, e.g., Comment Letter of Investment Company Institute 
on Investment Company Reporting Modernization (Aug. 12, 2015) (File 
No. S7-08-15), available at http://www.sec.gov/comments/s7-08-15/s70815-315.pdf, at 7, 21-22, 41-42, 46-47; Comment Letter of 
Vanguard on Investment Company Reporting Modernization (Aug. 11, 
2015) (File No. S7-08-15), available at http://www.sec.gov/comments/s7-09-15/s70915-28.pdf, at 3 (recommending that the Commission omit 
risk metrics from Form N-PORT, and, instead, use the raw data 
reported in Form N-PORT to perform its own calculation of risk 
metrics in order to ensure comparable results between funds); 
BlackRock Modernization Comment Letter, at 3.

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[[Page 80952]]

    We recognize that collecting and reporting alternative risk 
metrics, such as vega and gamma, could be more burdensome than 
reporting delta only. However, we believe that requiring funds to 
report information about the fund's exposures with metrics such as vega 
and gamma would assist the Commission in better assessing the risk in a 
fund's portfolio. In consideration of the additional burdens of 
reporting selected risk metrics to the Commission and the benefits of 
more complete disclosure of a fund's risks, we are proposing to limit 
the reporting of vega and gamma to only those funds that are required 
to implement a formalized derivatives risk management program as 
required by proposed rule 18f-4(a)(3).\500\ Our reasons for limiting 
the reporting of vega and gamma are two-fold: First, we understand that 
there are added burdens to reporting risk metrics and we are therefore 
proposing to limit the reporting of these risk metrics to only those 
funds who are engaged in more than a limited amount of derivatives 
transactions or that use certain complex derivatives transactions, as 
opposed to funds that engage in a more limited use of derivatives. 
Second, based on staff experience regarding portfolio management 
practices and outreach to service providers that calculate risk metrics 
we believe many of the funds that would be required to implement a 
derivatives risk management and that invest in derivatives as part of 
their investment strategy currently calculate risk metrics for their 
own internal risk management programs, or have risk metrics calculated 
for them by a service provider, albeit, for internal reporting 
purposes.
---------------------------------------------------------------------------

    \500\ See supra section III.D.; see also proposed rule 18f-
4(a)(3).
---------------------------------------------------------------------------

2. Amendments to Proposed Form N-PORT
    Part C of proposed Form N-PORT would require a fund and its 
consolidated subsidiaries to disclose its schedule of investments and 
certain information about the fund's portfolio of investments. We 
propose to add Item C.11.c.viii to Part C of proposed Form N-PORT, 
which would require funds that are required to implement a formalized 
risk management program under proposed rule 18f-4(a)(3) to provide the 
gamma and vega for options and warrants, including options on a 
derivative, such as swaptions.\501\
---------------------------------------------------------------------------

    \501\ Item C.11.c.viii of proposed Form N-PORT.
---------------------------------------------------------------------------

    As discussed above, gamma measures the sensitivity of delta \502\ 
in response to price changes in the underlying instrument. Thus, gamma, 
in concert with delta, facilitates sensitivity analysis, which would 
provide the Commission and others with a more precise estimate of the 
effect of underlying price changes on a fund's investments, 
particularly for large price movements in the underlying reference 
asset.
---------------------------------------------------------------------------

    \502\ Item C.11.c.vii of proposed Form N-PORT.
---------------------------------------------------------------------------

    Vega, which measures the amount that an option contract's price 
changes in relation to a one percent change in the volatility of an 
underlying asset, would assist the Commission and others with measuring 
an investment's volatility. This would permit the Commission and others 
to, among other things, estimate changes in a portfolio based on 
changes in market volatility, as opposed to changes in asset prices. 
Vega would accordingly give the Commission and others the tools 
necessary to construct more comprehensive risk analyses as appropriate.
    We anticipate that the enhanced reporting proposed in these 
amendments would help our staff better monitor price and volatility 
trends and various funds' risk profiles. Risk metrics data reported on 
Form N-PORT that is made publicly available also would inform investors 
and assist users in assessing funds' relative price and volatility 
risks and the overall price and volatility risks of the fund industry--
particularly for those funds that use investments in derivatives as an 
important part of their trading strategy. For example, third-party data 
analyzers could use the reported information to produce useful metrics 
for investors about the relative price and volatility risks of 
different funds with similar strategies. Moreover, gamma, vega, and 
delta would help the Commission, investors, and others determine the 
source of a fund's risk and return. We recognize that determining 
certain of the inputs that go into computing gamma and vega inherently 
involve some level of judgment and that some commenters expressed 
concern that this type of information could be confusing to 
investors.\503\ Nevertheless, for the reasons discussed above, we 
believe that the reporting of gamma and vega would provide valuable 
information to us and market participants about current fund 
expectations regarding their use of certain derivatives and better 
understand the risks that the fund faces as asset prices and volatility 
change.
---------------------------------------------------------------------------

    \503\ See supra note 499 and accompanying text.
---------------------------------------------------------------------------

3. Amendments to Proposed Form N-CEN
    As discussed above, proposed rule 18f-4 would require funds that 
engage in derivatives transactions to comply with one of two 
alternative portfolio limitations: The exposure-based portfolio limit 
under proposed rule 18f-4(a)(1)(i) or the risk-based portfolio limit 
under proposed rule 18f-4(a)(1)(ii).\504\ We are proposing to amend 
Item 31 of Part C of proposed Form N-CEN to require a fund to identify 
the portfolio limitation on which the fund relied during the reporting 
period.\505\ This information would allow the Commission to identify 
funds that rely on the exemptions under proposed rule 18f-4.
---------------------------------------------------------------------------

    \504\ See supra Section III.B.
    \505\ Items 31(k) and 31(l) of Proposed Form N-CEN. If a fund 
relied on the exposure based portfolio limit during part of the 
reporting period, and the risk-based portfolio limit during part of 
the same reporting period, it would be required to so indicate.
---------------------------------------------------------------------------

4. Request for Comment
    We seek comment on each of the Commission's proposed amendments to 
proposed Form N-PORT and proposed Form N-CEN.\506\
---------------------------------------------------------------------------

    \506\ Comments regarding the proposed amendments to Forms N-PORT 
and N-CEN should be submitted to the comment file for this Release.
---------------------------------------------------------------------------

     How, if at all, should we modify the scope of the proposed 
requirements to report gamma or vega? For example, as we discussed 
above, in the Investment Company Modernization Release, we requested 
comment on whether we should require all funds to report gamma and 
vega. Our current proposal would limit the reporting of gamma and vega 
to funds that are required to implement a derivatives risk management 
program. Is this appropriate, or should we require all funds that 
invest in derivatives with optionality to report these metrics? 
Alternatively, should we require reporting of these risk metrics for 
funds with a higher or lower exposure than 50%? Additionally, should we 
require funds that are required to have a risk management program by 
virtue of the complexity of the derivatives they invest in, as 
proposed, to report such metrics, even if their exposure falls below 
50%?
     We are also proposing to limit the reporting of gamma and 
vega to options and warrants, including options on a derivative, such 
as swaptions. Are there other investment products for which we should 
require disclosure of gamma and vega? If so, which products and why?

[[Page 80953]]

For example, should we require funds to report gamma and vega for 
convertible bonds? To what extent would the inputs and assumptions 
underlying the methodology by which funds calculate gamma and vega 
affect the values reported? Are there potential liability or other 
concerns associated with the reporting of such measures according to 
such inputs and assumptions? For example, how would the comparability 
of information reported between funds be affected if funds used 
different inputs and assumptions in their methodologies?
     Are there additional or alternative metrics that we should 
consider requiring to be reported? Would the disclosure of risk metrics 
such as theta--the change in value of an option with changes in time to 
expiration--enhance the utility of the derivatives information reported 
in Form N-PORT? What would be the costs and burdens to funds and 
benefits to investors and other potential users of requiring funds to 
report such additional or alternative metrics? How would the 
comparability of information reported by different funds be affected if 
funds used different inputs and assumptions in their methodologies, 
such as different assumptions regarding the values of the funds' 
portfolios?
     We believe that funds that would be required to implement 
a derivatives risk management program already track certain derivative 
risk metrics, such as gamma and vega. Is our assumption correct? To the 
extent this is correct, what would be the incremental cost and burden 
of reporting such information to the Commission? As discussed above, in 
the Investment Company Reporting Modernization Release, we proposed 
that portfolio-level risk metrics and the delta for relevant 
investments be disclosed on each report on Form N-PORT that is made 
public (i.e., quarterly). Likewise, we are proposing that gamma and 
vega be made publicly available. Should gamma and vega be made public? 
Are the factors that the Commission should consider when determining 
whether to make such measures public the same as for the other risk 
metrics proposed in the Investment Company Modernization Release, or 
are there additional factors relevant to gamma and vega that we should 
consider?
     As discussed above, proposed rule 18f-4 would require 
funds that engage in derivatives transactions to comply with one of two 
alternative portfolio limitations: The exposure-based portfolio limit 
or the risk-based portfolio limit. While we are proposing to require 
that funds maintain certain records relating to their compliance with 
the applicable portfolio limitation, we are not proposing that they 
report to the public or the Commission the funds' aggregate exposure 
or, for funds that operate under the risk-based portfolio limit, the 
results of the funds' VaR tests. Would there be a benefit to publicly 
reporting this information? Should we require funds to report on 
proposed Form N-CEN or Form N-PORT either or both of the funds' 
aggregate exposures or their securities' VaRs and full portfolio VaRs 
(if applicable)? Additionally, as proposed, the derivative risk 
management program would apply to funds with an aggregate exposure to 
derivatives transactions that exceeds 50% of net assets. Should funds 
be required to report on proposed Form N-CEN or Form N-PORT their 
aggregate exposure to derivatives transactions?
     Form N-PORT also requires funds to report their notional 
amounts for certain derivatives transactions. Should we define 
``notional amount'' for purposes of Form N-PORT with the same 
definition as proposed by rule 18f-4?
     Our proposal would require funds to identify in reports on 
Form N-CEN whether they relied upon the proposed rule by identifying 
the portfolio limitation(s) on which the fund relied during the 
reporting period. Do commenters agree that this is appropriate? Should 
we instead require a fund to only identify if it relied upon rule 18f-4 
during the reporting period, rather than requiring the fund to identify 
the specific portfolio limitation(s) on which the fund relied? Are 
there other mediums, such as the Statement of Additional Information, 
that would be more appropriate to report such information?
     Should we provide a compliance period for the proposed 
amendments to Forms N-PORT and N-CEN? If so, what factors should we 
consider, if any, when setting the compliance dates for the proposed 
amendments to Forms N-PORT and N-CEN? How long of a compliance period 
would be appropriate for the proposed amendments? If we provide a 
compliance period for the proposed amendments, should we provide a 
tiered compliance date for entities based on their size?

H. Request for Comments

    We request and encourage any interested person to submit comments 
regarding the proposed rule and the proposed amendments to Form N-PORT 
and Form N-CEN, specific issues discussed in this Release, and other 
matters that may have an effect on the proposed rule and the proposed 
changes to Form N-PORT and Form N-CEN. With regard to any comments, we 
note that such comments are of particular assistance to our rulemaking 
initiative if accompanied by supporting data and analysis of the issues 
addressed in those comments.

I. Proposed Rule 18f-4 and Existing Guidance

    If we adopt proposed rule 18f-4, we would rescind Release 10666 and 
our staff's no-action letters addressing derivatives and financial 
commitment transactions. Funds would only be permitted to enter into 
derivatives transactions and financial commitment transactions to the 
extent permitted by, and consistent with the requirements of, rule 18f-
4 or section 18 or 61. At this time, however, we are not rescinding 
Release 10666 or any no-action letters issued by our staff, and funds 
may continue to rely on Release 10666, our staff no-action letters, and 
other guidance from our staff.
    A fund would be able to rely on the rule after its effective date 
as soon as the fund could comply with the rule's conditions. We would, 
in addition, expect to provide a transition period during which we 
would permit funds to continue to rely on Release 10666, our staff no-
action letters, and other guidance from our staff, including with 
respect to derivatives transactions and financial commitment 
transactions entered into by a fund after the rule's effective date but 
before the end of any transition period.
    We request comment on any transition period:
     Do commenters agree that a transition period would be 
appropriate?
     What would be an appropriate amount of time for us to 
provide before rescinding Release 10666 and our staff's no-action 
letters?
     In recently proposed rule 22e-4, we proposed tiered 
compliance dates for funds that would be required to establish 
liquidity risk management programs under that rule, generally proposing 
to provide a compliance period of 18 months for larger entities and an 
extra 12 (or 30 total months) for smaller entities.\507\ Would these 
time periods provide sufficient time for funds to transition to 
proposed rule 18f-4?

[[Page 80954]]

Would they provide more time than may be necessary or appropriate?
---------------------------------------------------------------------------

    \507\ See Liquidity Release, supra note 5 (generally 
categorizing funds that together with other investment companies in 
the same ``group of related investment companies'' have net assets 
of $1 billion or more as of the end of the most recent fiscal year 
as larger entities and funds that together with other investment 
companies in the same ``group of related investment companies'' have 
net assets of less than $1 billion as of the end of the most recent 
fiscal year as smaller entities).
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     Would it be appropriate, for purposes of a transition 
period (rather than setting a compliance date), to provide different 
periods of time for larger and smaller entities? Would it be 
appropriate to instead require all funds that engage or seek to engage 
in derivatives or financial commitment transactions to do so in 
reliance on proposed rule 18f-4 after a period of time that would be 
the same for all affected funds, for example 18 months after any 
adoption of proposed rule 18f-4?
     Should we provide a longer transition period for 
particular types of funds? If so, which kinds of funds and how much 
time should we provide? Should we, for example, provide a longer 
transition period for leveraged ETFs on the basis that they operate 
pursuant to the terms and conditions of exemptive orders granted by the 
Commission? In section III.B.1.c, we requested comment as to whether it 
would be more appropriate to consider these funds' use of derivatives 
transactions in the exemptive application context, based on the funds' 
particular facts and circumstances, rather than in rule 18f-4. If 
commenters believe this would be appropriate, would a longer transition 
period for these funds also be appropriate in order to provide time for 
these funds to prepare, and for the Commission to consider, any 
exemptive applications?

IV. Economic Analysis

A. Introduction and Primary Goals of Proposed Regulation

    The Commission is sensitive to the economic effects that could 
result from proposed rule 18f-4 and the proposed amendments to proposed 
Forms N-PORT and N-CEN. The economic effects of proposed rule 18f-4 
include the benefits and costs of the proposed rule, as well as effects 
on efficiency, competition, and capital formation. The economic effects 
of the proposed rule are discussed below in the context of the primary 
goals of the proposed regulation. We discuss the benefits, costs, and 
economic effects associated with our proposed amendments to proposed 
Forms N-PORT and N-CEN in sections IV.D.6 and IV.D.7, below.
    In summary, and as discussed in greater detail throughout this 
Release, the proposed rule would require a fund that enters into 
derivatives transactions in reliance on the rule to:
     Comply with one of two alternative portfolio limitations 
designed to impose a limit on the amount of leverage the fund may 
obtain through derivatives transactions and other senior securities 
transactions; \508\
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    \508\ As discussed above, the proposed rule would limit 
indebtedness leverage created through derivatives transactions that 
involve the issuance of senior securities (i.e., because these 
transactions involve a payment obligation). The proposed rule would 
not limit economic leverage created through derivatives (e.g., 
purchased options) that would generally not be considered to involve 
the issuance of senior securities (i.e., because these transactions 
do not involve a payment obligation).
---------------------------------------------------------------------------

     Manage the risks associated with its derivatives 
transactions by maintaining qualifying coverage assets in an amount 
designed to enable the fund to meet its obligations under its 
derivatives transactions; and
     Establish a formalized derivatives risk management program 
(unless otherwise exempt based on the extent of its derivatives usage).
    The proposed rule would also require a fund that enters into 
financial commitment transactions in reliance on the rule to maintain 
qualifying coverage assets equal in value to the fund's full 
obligations under those transactions.
    As discussed above in section II.D.1.a, we have determined to 
propose a new approach to funds' use of derivatives in order to address 
the investor protection purposes and concerns underlying section 18 of 
the Act and to provide an updated and more comprehensive approach to 
the regulation of funds' use of derivatives transactions. The investor 
protection purposes and concerns include the concern that leveraging an 
investment company's portfolio through the issuance of senior 
securities magnifies the potential for gain or loss and therefore 
results in an increase in the speculative character of the investment 
company's outstanding securities. In Release 10666, we permitted funds 
to engage in the transactions described in that release using the 
segregated account approach, notwithstanding the limitations in section 
18, because we believed that the segregated account approach would 
address the investor protection purposes and concerns underlying 
section 18 by imposing a practical limit on the amount of leverage a 
fund may undertake and assuring the availability of adequate assets to 
meet the fund's obligations arising from such transactions.
    As we discussed above, the current regulatory framework, including 
application of the segregated account approach enunciated in Release 
10666 to derivatives transactions, has developed over the years since 
we issued Release 10666 as funds and our staff sought to apply our 
statements in Release 10666 to various types of derivatives and other 
transactions on an instrument-by-instrument basis. One significant 
result of this process has been funds' expanded use of the mark-to-
market segregation approach with respect to various types of 
derivatives, together with the segregation of a variety of liquid 
assets. Funds' use of the mark-to-market segregation approach with 
respect to various types of derivatives, plus the segregation of any 
liquid asset, enables funds to obtain leverage in amounts that may not 
be consistent with the concerns underlying section 18 of the Act. As we 
noted above, segregating only a fund's daily mark-to-market liability--
and using any liquid asset--enables the fund, using derivatives, to 
obtain exposures substantially in excess of the fund's net assets. In 
addition, a fund's segregation of any asset that the fund deems 
sufficiently liquid to cover a derivative's daily mark-to-market 
liability may not effectively result in the fund having sufficient 
liquid assets to meet its future obligations under the derivative.
    The proposed rule is designed to address the investor protection 
purposes and concerns underlying section 18 and to provide an updated 
and more comprehensive approach to the regulation of funds' use of 
derivatives transactions in light of the dramatic growth in the volume 
and complexity of the derivatives markets over the past two decades and 
the increased use of derivatives by certain funds. Under the proposed 
rule, funds would be permitted to enter into derivatives transactions 
and financial commitment transactions in reliance on the rule, subject 
to its conditions.
    The proposed rule provides both for an outside limit on the 
magnitude of funds' derivatives exposures designed primarily to address 
concerns about excessive leverage and undue speculation and a 
requirement to manage risks associated with its derivatives 
transactions by maintaining qualifying coverage assets that is designed 
primarily to address concerns about a fund's ability to meet its 
obligations in connection with its derivatives and financial commitment 
transactions. The proposed rule also seeks to provide a balanced and 
flexible approach by permitting funds to obtain additional derivatives 
exposure (under the risk-based portfolio limit) where the fund's 
derivatives, in the aggregate, have a risk-mitigating effect on the 
fund's overall portfolio.
    As noted above, the proposed rule includes asset segregation 
requirements for both derivatives transactions and financial commitment 
transactions. With regard to derivatives, a fund would

[[Page 80955]]

be required to assess both the current and future payment obligations 
(and therefore, potential losses) arising from its derivatives 
transactions. With regard to financial commitment transactions, a fund 
would be required to maintain qualifying coverage assets equal in value 
to the fund's full obligations under those transactions.
    Finally, except for funds that engage in only a limited amount of 
derivatives transactions and that do not use certain complex 
derivatives transactions, the fund would be required to establish a 
derivatives risk management program, including the appointment of a 
derivatives risk manager. The derivatives risk management program 
requirement is designed to complement the portfolio limitations and 
asset coverage requirements by requiring a fund subject to the 
requirement to assess and manage the particular risks presented by the 
fund's use of derivatives.

B. Economic Baseline

    The proposed rule would affect funds and their investors, 
investment advisers, and market participants engaged in the issuance, 
trading, and servicing of derivatives, financial commitment 
transactions, and securities. Market participants include fund 
counterparties and other third-party service providers such as fund 
custodians and administrators.\509\ The effects on all of these parties 
are discussed below in the discussion of the costs and benefits of the 
proposed rule.
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    \509\ Throughout the economic analysis we discuss the potential 
effects of the proposed rule and estimate the costs to funds to 
perform the enumerated types of activities that we anticipate would 
be required to comply with the proposed rule's specific 
requirement(s). We note that these costs may be incurred, in whole, 
or in part, by a fund, its investment adviser, or one of its service 
providers (e.g., fund custodian, or fund administrator). Except 
where addressed specifically below, we do not, however, have 
information available to us to reasonably estimate how the costs for 
such activities may be allocated among these parties.
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    The economic baseline of the proposed rule is the current industry 
practice established in light of Commission and staff positions that 
funds rely upon when determining whether they are permitted under the 
Act to engage in derivatives transactions and financial commitment 
transactions. As discussed above in section II.B.3, funds that engage 
in these types of transactions typically segregate ``liquid'' assets 
using one of two general practices: Notional amount segregation or 
mark-to-market segregation. The current approach has developed over the 
years since we issued Release 10666 as funds and our staff sought to 
apply our statements in Release 10666 to various types of derivatives 
and other transactions. We understand that, in determining how they 
will comply with section 18, funds consider various no-action letters 
issued by our staff. These staff letters, issued primarily in the 1970s 
through 1990s, addressed particular questions presented to the staff 
concerning the application of the approach enunciated in Release 10666 
to various types of derivatives on an instrument-by-instrument basis. 
We understand that funds also consider, in addition to these letters, 
other guidance they may have received from our staff and the practices 
that other funds disclose in their registration statements. The current 
approach's development on an instrument-by-instrument basis, together 
with the dramatic growth in the volume and complexity of the 
derivatives markets over the past two decades, has resulted in 
situations for which there is no specific guidance from us or our staff 
with respect to various types of derivatives.
    Our staff economists have analyzed recent industry-wide trends and 
certain funds' portfolio holdings in order to provide information about 
funds' use of derivatives and to inform our consideration of the 
proposed rule and assess its economic effects.\510\ Below we discuss 
the size and recent growth of the U.S. fund industry generally, as well 
as the growth of specific fund types within the industry. As discussed 
below, the fund industry has grown significantly since 2010 and certain 
funds that make greater use of derivatives have received a 
disproportionately large share of fund inflows. This information 
highlights the importance of a new approach to regulating derivatives 
transactions under section 18 and, together with the information we 
discuss below concerning the extent to which certain funds use 
derivatives, has helped to shape the scope and substance of the 
proposed rule, as well as identify the benefits, costs, and effects on 
efficiency, competition, and capital formation.
---------------------------------------------------------------------------

    \510\ This analysis is included in the DERA White Paper, supra 
note 73. See text surrounding supra note 87.
---------------------------------------------------------------------------

    According to Morningstar, at the end of June 2015, there were 9,707 
registered open-end funds, 560 closed-end funds, and 1,706 ETFs (11,973 
total funds) with a total reported AUM of $17.9 trillion.\511\ Of that 
total, open-end funds held $15.9 trillion, closed-end funds held $250 
billion, and ETFs held $1.8 trillion. In terms of fund categories, 
3,361 US equity funds held the largest percentage (38%) of industry 
AUM, followed by 2,073 taxable bond funds (19%), 1,914 allocation funds 
(17%), and 1,877 international equity funds (15%). As of June 2015, 
there were 537 money market funds with an estimated $3.0 trillion in 
AUM.\512\ In addition, based on Commission records (Form 10-Ks and 10-
Q's), at the end of June 2015, there were 88 active business 
development companies (``BDCs'') with an estimated $52.3 billion in 
AUM.
---------------------------------------------------------------------------

    \511\ DERA White Paper, supra note 73, Table 1. These figures do 
not include money market funds or BDCs. Under rule 2a-7 of the Act, 
money market funds are required to limit their investments to short-
term, high-quality debt securities that fluctuate very little in 
value under normal market conditions. Money market funds thus do not 
engage in derivatives transactions, but may enter into certain 
financial commitment transactions to the extent permitted by rule 
2a-7. See supra note 472. Similarly, BDCs, based on the DERA sample, 
do not appear to enter into derivatives transactions to a material 
extent (no sampled BDC reported any derivatives transactions in its 
then-most recent annual report). BDCs do, however, appear to enter 
into financial commitment transactions as defined in the proposed 
rule based on the DERA sample. We provide aggregate figures for 
money market funds and BDCs separately. See infra note 578.
    \512\ Data taken from reports filed on Form N-MFP for June 2015.
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    Although not large in terms of industry AUM (less than 3% as of 
June 2015 \513\), the growth in AUM of alternative strategy funds, 
which tend to be greater users of derivatives, is notable. In 2010, 
there were a total of 591 alternative strategy funds with a total AUM 
of $320 billion.\514\ By the end of 2014 those numbers had risen to 
1,125 funds with a total AUM of $469 billion. The annual growth rate in 
the AUM of alternative strategy funds from the end of 2010 through the 
end of 2014 was 10%.\515\ Excluding commodity funds (which had a 
negative growth rate during this period), alternative strategy funds 
had an annual growth rate of 22%. During this four-year period, 
alternative strategy funds received the largest net inflows (14% 
annually) relative to their total asset base. Excluding commodity 
funds, alternative strategy funds had an annual net inflow of 28%.\516\ 
Over the four-year period

[[Page 80956]]

since 2010, alternative strategy funds also received a disproportionate 
share of net fund flows. These funds received 10% of all industry net 
inflows while comprising only 3% of industry AUM as of 2010. Excluding 
commodity funds, alternative strategy funds received 11% of all 
industry net inflows while comprising only 1.6% of industry AUM as of 
2010.
---------------------------------------------------------------------------

    \513\ DERA White Paper, supra note 73, Table 1. We refer to 
alternative strategy funds in the same manner as the staff 
classified ``Alt Strategies'' funds in the DERA White Paper as 
including the Morningstar categories of ``alternative,'' 
``nontraditional bond'' and ``commodity'' funds.
    \514\ DERA White Paper, supra note 73, Table 2.
    \515\ During the 2010-2014 time period, the annual growth rate 
of US equity funds was 14%, the sector equity funds growth rate was 
18%, the international equity fund growth rate was 9%, the 
allocation fund growth rate was 16%, the taxable bond fund growth 
rate was 10%, and the municipal bond fund growth rate was 6%.
    \516\ During the 2010-2014 time period, annual net flows as a 
percent of fund AUM were 0% for US equity funds, 10% for sector 
equity funds, 6% for international equity funds, 7% for allocation 
funds, 7% for taxable bond funds, 1% for municipal bond funds, and -
2% for commodity funds.
---------------------------------------------------------------------------

    DERA staff manually collected data regarding derivatives, financial 
commitment transactions, and other senior security transactions from 
the then-latest fund annual reports of a 10% random sample of all 
registered management investment companies as well as business 
development companies as of June, 2015.\517\ As discussed above, we 
recognize that the review by DERA staff evaluated funds' investments as 
reported in the funds' then-most recent annual reports. DERA staff, 
however, is not aware of any information that would provide any 
different data analysis of the current use of senior securities 
transactions by registered funds and business development companies. 
DERA staff prepared an analysis of each sampled fund's aggregate 
exposure by aggregating, for each fund: (1) The notional amounts of the 
fund's derivatives transactions, as defined in the proposed rule; (2) 
the financial commitment obligations associated with the fund's 
financial commitment transactions, as defined in the proposed rule; and 
(3) the indebtedness associated with any other senior securities 
transactions.\518\
---------------------------------------------------------------------------

    \517\ DERA staff included in its sample open-end funds 
(including ETFs), closed-end funds, and BDCs, but excluded money 
market funds (because these funds do not invest in derivatives 
transactions). For the alternative strategy funds, DERA staff 
required in its sample a minimum of three funds selected from each 
Morningstar subcategory. Morningstar subcategories include, among 
others, managed futures, multicurrency, bear market, 
multialternative, market neutral, long/short equity, trading inverse 
and trading leveraged.
    \518\ The aggregate notional amount for derivatives in the DERA 
random sample is approximately $350 billion. The Bank for 
International Settlements reports that the aggregate notional amount 
for derivatives worldwide at the end of 2014 was approximately $688 
trillion ($58 trillion exchange traded and $630 trillion over-the-
counter). See http://www.bis.org/statistics/about_derivatives_stats.htm?m=6|32. BIS data on exchange-
traded derivatives is collected from over 50 organized exchanges and 
includes information on interest rate and foreign exchange 
derivatives only. BIS data on OTC derivatives is from large dealers 
in 13 countries and includes forwards, swaps, and options on foreign 
exchange, interest rates, and equities.
---------------------------------------------------------------------------

    In the resulting sample of 1,188 funds, 68% (53% in AUM) had zero 
exposure to derivatives and approximately 89% (90% in AUM) had less 
than 50% exposure as a percentage of NAV.\519\ Approximately 96% (95% 
in AUM) of the funds had aggregate exposures below 150%.\520\ As a 
result, we expect that a majority of funds would not be required to 
modify their portfolios in order to comply with the proposed rule 
because a substantial majority of funds do not appear (based on the 
DERA sample) to engage in derivatives transactions or financial 
commitment transactions and thus may not need to rely on the exemption 
the proposed rule would provide, or do not appear to engage in those 
transactions at a level that would exceed the proposed rule's exposure 
limitations.\521\ Funds that do engage in derivatives transactions and 
financial commitment transactions would, however, need to rely on the 
proposed rule to continue to engage in these transactions.
---------------------------------------------------------------------------

    \519\ DERA White Paper, supra note 73, Figures 11.1, 12.1.
    \520\ DERA White Paper, supra note 73, Figures 9.1, 10.1.
    \521\ See supra note 212 and accompanying text. We recognize 
that some of the funds in DERA's sample that had no exposure to 
derivatives or financial commitment transactions in their then-most 
recent annual reports also may engage in these transactions to some 
extent. As discussed above, DERA staff is not aware of any 
information that would provide any different data analysis of the 
current use of senior securities transactions by registered funds 
and business development companies.
---------------------------------------------------------------------------

    DERA examined the detailed holdings for every fund in its sample 
and found that alternative strategy funds hold the most derivatives and 
have the highest exposure (expressed as aggregate notional amounts 
relative to fund net asset value). Among alternative strategy funds, 
73% had at least some exposure to derivatives and 52% had greater than 
50% exposure to derivatives.\522\ For traditional mutual funds, 29% had 
at least some exposure to derivatives and 6% had greater than 50% 
exposure to derivatives. Not only did alternative strategy funds have 
greater derivatives exposures, but their holdings also were larger (as 
measured in terms of notional amount relative to fund net asset value). 
For alternative strategy funds with derivatives, mean and median 
notional values of derivatives were 167% and 99% of net assets, 
respectively.\523\ As a point of comparison, for traditional mutual 
funds, the comparable numbers were 36% and 10%, respectively. 
Approximately 27% of alternative strategy funds had 150% or greater 
aggregate exposure, compared to less than 2% for traditional mutual 
funds.\524\
---------------------------------------------------------------------------

    \522\ DERA White Paper, supra note 73, Figure 11.4.
    \523\ DERA White Paper, supra note 73, Table 6, Panel D.
    \524\ DERA White Paper, supra note 73, Figures 9.4, 9.5.
---------------------------------------------------------------------------

    As noted above, as of June 2015, there were 560 closed-end funds 
with total AUM of $250 billion. In DERA's random sample of the funds, 
47% of closed-end funds had some exposure to derivatives.\525\ Nine 
percent of closed-end funds had at least a 50% exposure to derivatives. 
No closed-end fund had aggregate exposure over 150% of net assets.\526\
---------------------------------------------------------------------------

    \525\ DERA White Paper, supra note 73, Figure 11.7.
    \526\ DERA White Paper, supra note 73, Figure 9.7.
---------------------------------------------------------------------------

    Also as noted above, as of June 2015, there were 1,706 ETFs and 88 
BDCs with total AUM of $1.8 trillion and $52.3 billion, respectively. 
In DERA's random sample of the funds, 29% of ETFs and zero BDCs had 
some exposure to derivatives.\527\ Eighteen percent of ETFs had 
exposure to derivatives of 50% or more (86% among alternative strategy 
ETFs). Eight percent of ETFs had aggregate exposure over 150% of net 
assets.\528\
---------------------------------------------------------------------------

    \527\ DERA White Paper, supra note 73, Figures 11.10, 11.11.
    \528\ DERA White Paper, supra note 73, Figure 9.10.
---------------------------------------------------------------------------

    Our staff also analyzed, through a review of recent N-SAR filings, 
the extent to which funds are permitted (as stated in fund disclosure 
documents) to use certain derivatives as part of their investment 
objective or strategy.\529\ In each case, more alternative funds \530\ 
were authorized to invest in derivatives than other funds.\531\ For 
example, the number of alternative funds permitted to invest in options 
on equities, options on stock indices, stock index futures, and options 
on index futures was 20% greater than the number of traditional mutual 
funds.\532\ Although not all of

[[Page 80957]]

these instruments would be deemed a ``derivatives transaction'' under 
the proposed rule (e.g., a purchased option), information about the 
extent to which funds are permitted to invest in these instruments may 
provide an indication of the extent to which funds engage in strategies 
that would involve the use of derivatives transactions subject to the 
proposed rule.
---------------------------------------------------------------------------

    \529\ DERA White Paper, supra note 73. This portion of the DERA 
analysis used a sample consisting of all funds filing form N-SAR for 
2014 (12,360 in total). Form N-SAR, filed with the Commission and 
made publicly available, is filed semi-annually by all registered 
investment companies and provides census-type data about the 
registrant (recently, the Commission proposed new rules that would 
rescind Form N-SAR and replace it with a more modernized and updated 
census form, proposed Form N-CEN). See Investment Company Reporting 
Modernization Release, supra note 138. Form N-SAR requires funds to 
answer questions with respect to whether they are allowed to invest 
in the following derivatives: Options on equities, options on debt 
securities, options on stock indices, interest rate futures, stock 
index futures, options on futures, options on index futures, and 
other commodity futures.
    \530\ Morningstar U.S. category ``Alternative funds.''
    \531\ DERA White Paper, supra note 73, Table 3, Panel A.
    \532\ DERA White Paper, supra note 73, Table 3, Panel A. The 
comparable differences for options on debt securities, interest 
rates futures, options on futures, and other commodity options are 
8%, 12%, 16%, and 21%, respectively.
---------------------------------------------------------------------------

    Under the current regulatory framework, funds that invest in 
derivatives and other senior securities generally segregate certain 
assets with respect to those transactions. While our staff has observed 
that some funds have interpreted the guidance differently in certain 
cases, we assume for purposes of establishing the baseline that funds 
generally segregate sufficient assets to cover at least any mark-to-
market liabilities on the funds' derivatives transactions, with some 
funds segregating more assets for certain types of derivatives and 
transactions (sufficient to cover the full notional amount of the 
transaction or an amount in between the transaction's full notional 
amount and any mark-to-market liability).
    There is currently no requirement for funds that invest in 
derivatives to have a risk management program with respect to their 
derivatives transactions, although we understand that the advisers to 
many funds whose investment strategies could entail derivatives already 
assess and manage the risks associated with derivatives transactions. 
Funds' current risk management practices may not meet the proposed 
rule's specific risk-management program requirements, however, and 
therefore we believe that the baseline for the derivatives risk 
management program requirement would be that all funds that would be 
subject to the requirement would need to establish such a program or 
conform their current practices to satisfy the requirements in the 
proposed rule.

C. Economic Impacts, Including Effects on Efficiency, Competition, and 
Capital Formation

    Below, we discuss anticipated economic impacts, including effects 
on efficiency, competition, and capital formation that may result from 
our proposals. Where possible, we have attempted to quantify the costs, 
benefits, and effects of the proposed rule and amendments to Forms N-
PORT and N-CEN. In many cases, however, we are unable to quantify the 
economic effects because we lack the information necessary to provide a 
reasonable estimate.
    As discussed above, there is substantial diversity in the types and 
strategies of funds and how and to what extent funds use derivatives. 
Moreover, for those funds that do use derivatives, there is substantial 
variability in how they comply with current Commission positions and 
staff guidance on compliance with section 18 (including asset 
segregation). There is also substantial variability in how any given 
fund may react to the proposed rule, if adopted, and how the market may 
react in turn. A fund that uses a moderate amount of derivatives may 
increase or decrease its derivative usage, or shift within types of 
derivatives (e.g., from cash-settled to physically-settled). A fund may 
alter its investment strategy in order to comply with one of the 
proposed rule's portfolio exposure limitations by reducing use of 
derivatives and not substituting other instruments to achieve 
equivalent exposures. To the extent that a fund alters its investment 
strategy, this change may represent an opportunity cost to investors. 
Such opportunity costs depend on investors' individual preferences and 
are, as a result, difficult to quantify. Alternatively, a fund may 
shift the composition of its portfolio away from derivatives covered by 
the proposed rule, either by using derivatives not covered by the 
proposed rule, or by substituting the purchase of derivatives with a 
purchase of the underlying assets (or similar assets). Such a shift in 
portfolio composition would involve transactions costs. Those 
transactions costs would depend on both the amount of the portfolio to 
be traded, as well as the liquidity of the assets to be traded, both of 
which are likely to vary widely from fund to fund (and thus are 
difficult to quantify). Finally, a fund may seek to operate in a 
structure not subject to the limitations of section 18.\533\ We discuss 
these potential economic impacts in more detail below. Although much of 
the following discussion is qualitative in nature, we have sought to 
quantify certain costs, benefits, and effects of the proposed rule, 
where possible.\534\
---------------------------------------------------------------------------

    \533\ We quantify estimated costs related to a fund that chooses 
to deregister under the Investment Company Act and liquidate and/or 
offer the fund's strategy as a private fund or commodity pool. See 
infra note 554 and accompanying text.
    \534\ We discuss below in section IV.D, other potential benefits 
and quantified costs that we anticipate may result from certain core 
aspects of the proposed rule, including the exposure-based and risk-
based portfolio limitations, the asset segregation requirements, the 
derivatives risk management program, requirements for financial 
commitment transactions, and amendments to proposed Forms N-PORT and 
N-CEN.
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    We believe that the proposed rule is likely to strengthen investor 
protection. First, the proposed rule would limit the amount of leverage 
that a fund may obtain through derivatives transactions and other 
senior securities transactions. Under the proposed rule, a fund that 
seeks to comply with the exposure-based portfolio limit would be 
required to limit its aggregate exposure to 150% of the fund's net 
assets, and a fund that seeks to comply with the risk-based portfolio 
limit would be required to demonstrate, through a value-at-risk-based 
test,\535\ that its use of derivatives reduces the fund's exposure to 
market risk, and limit its aggregate exposure to 300% of the fund's net 
assets. The proposed aggregate exposure limitations are likely to 
reduce, but not eliminate, the risk that investors will experience 
losses associated with leveraged investment exposures that 
significantly exceed a fund's net assets. Second, the proposed rule 
would require that a fund manage risks associated with its derivatives 
transactions by maintaining an amount of certain assets, defined in the 
proposed rule as ``qualifying coverage assets,'' designed to enable the 
fund to meet its obligations under its derivatives transactions (and 
financial commitment transactions). We expect that, to the extent the 
proposed rule strengthens investor protection, the proposed rule should 
also both sustain and promote investors' willingness to participate in 
the market. This could lead to increased investment in funds, which in 
turn could lead to increased demand for securities which could, in 
turn, promote capital formation.
---------------------------------------------------------------------------

    \535\ The proposed rule would require that a fund seeking to 
comply with the risk-based portfolio limit satisfy the VaR test 
included in that portfolio limit, that is, limit its use of 
derivatives transactions so that, immediately after entering into 
any senior securities transaction, the fund's ``full portfolio VaR'' 
is less than the fund's ``securities VaR,'' as those terms are 
defined in the proposed rule. A fund would also be required to limit 
its aggregate exposure to 300% of the fund's net assets.
---------------------------------------------------------------------------

    As we have discussed above, leverage magnifies losses that may 
result from adverse market movements. As a result, a fund that obtains 
leverage through derivatives and other senior securities transactions 
may suffer those magnified losses and, because losses on a fund's 
derivatives transactions can create payment obligations for the fund, 
the losses can force a fund's adviser to sell the fund's investments to 
generate liquid assets in order for the fund to meet its obligations. 
This could force the fund to enter into forced sales in stressed market 
conditions, resulting in

[[Page 80958]]

large losses or even liquidation.\536\ The proposed rule, by 
effectively imposing a limit on the amount of leverage a fund may 
obtain through derivatives, should reduce the possibility of fund 
losses attributable to leverage. This can have investor protection 
benefits as well as reduce the risk of adverse effects on fund 
counterparties. More robust asset segregation requirements also may 
have the effect of increasing a fund's liquidity, decreasing default 
risk, and decreasing the risk that a fund may be forced to sell 
securities in a falling market to meet its obligations under its 
derivatives transactions (e.g., to meet margin calls). For these 
reasons, we believe that the proposed rule should encourage capital 
formation by promoting investors' willingness to invest in funds (or to 
remain invested in them even in a falling market) and market stability.
---------------------------------------------------------------------------

    \536\ See Thurner, Farmer & Geanakoplos, Leverage Causes Fat 
Tails and Clustered Volatility (May 2012) (discussing investments 
collateralized by margin and noting that ``[t]he nature of the 
collateralized loan contract thus sometimes turns buyers of the 
collateral into sellers, even when they might think it is the best 
time to buy. . . . When the funds are unleveraged, they will always 
buy into a falling market, i.e. when the price is dropping they are 
guaranteed to be buyers, thus damping price movements away from the 
fundamental value. When they are sufficiently leveraged, however, 
this situation is reversed they sell into a falling market, thus 
amplifying the deviation of price movements away from fundamental 
value.''). See also Off-Balance-Sheet Leverage IMF Working Paper, 
supra note 79 (``[A] more leveraged investor facing a given adverse 
price movement may be forced by collateral requirements (i.e. margin 
calls) to unwind the position sooner than if the position were not 
leveraged. The unwinding decision of an unleveraged investor depends 
merely on the investor's risk preferences and not on potentially 
more restrictive margin requirements.'').
---------------------------------------------------------------------------

    The proposed rule may reduce costs and promote efficiency with 
respect to certain uses of derivatives by replacing the current 
regulatory framework that depends upon interpretation of Commission and 
staff guidance with a more transparent and comprehensive regulatory 
framework that addresses more effectively the purposes underlying 
section 18. The proposed rule would eliminate disparities under the 
current regulatory framework, where funds segregate the full notional 
amount for certain derivatives and segregate only the mark-to-market 
liability for other types of derivatives. For example, current staff 
guidance generally calls for a fund to segregate liquid assets equal in 
value to the full notional amount of a physically settled futures 
contract. A fund that wishes to avoid encumbering a large portion of 
its liquid assets might be incentivized to instead enter into a cash 
settled OTC swap on the same futures contract and segregate only its 
mark-to-market liability (if any) under the swap, even if the swap 
entails higher transaction costs, is less liquid, and/or poses greater 
counterparty risk. The risk may be compounded further because the mark-
to-market segregation approach potentially enables the fund to obtain a 
level of leverage that is many times greater than its net assets. By 
contrast, under the proposed rule's portfolio limitations, a physically 
settled futures contract and a cash-settled swap on the futures 
contract, both of which have the same notional amount, would be subject 
to the same treatment. This approach should serve to reduce the 
likelihood that a fund would choose a less efficient instrument to 
obtain its investment exposures and also reduce the uncertainty that 
exists regarding treatment of new products that are not addressed 
specifically in existing Commission or staff guidance. By providing 
consistency in how funds treat different derivatives transactions, we 
believe that the proposed rule should reduce opportunities for 
regulatory arbitrage where a fund prefers ``cheap-to-cover'' 
derivatives--those for which a fund applies the mark-to-market 
segregation approach--and therefore promote a more efficient use of 
derivatives instruments by funds when implementing their portfolio 
strategies.
    As discussed above in section III.C.1, the proposed rule would 
require that a fund maintain qualifying coverage assets, for each 
derivatives transaction, in an amount equal to the sum of (1) the 
amount that would be payable by the fund if the fund were to exit the 
derivatives transaction at the time of the determination (the ``mark-
to-market coverage amount''), and (2) an amount that represents an 
estimate of the potential amount payable by the fund if the fund were 
to exit the derivatives transaction under stressed conditions (the 
``risk-based coverage amount''). The proposed rule is designed to be 
flexible enough to allow a fund to determine these amounts both for 
existing types of derivatives transactions and for new derivatives 
instruments that are created in the future. For example, the proposed 
rule provides that a derivatives transaction's risk-based coverage 
amount would be an amount that represents an estimate of the potential 
amount payable by the fund if the fund were to exit the derivatives 
transaction under stressed conditions, determined in accordance with 
policies and procedures that address certain considerations specified 
in the rule. The proposed rule thus does not prescribe the particular 
methodology that a fund must use to calculate its risk-based coverage 
amount when segregating assets on its derivatives transactions. 
Instead, the proposed rule permits a fund to make such determinations 
in accordance with policies and procedures approved by the fund's 
board, based on a fund's particular facts and circumstances. We believe 
that this flexible approach would permit, and may promote, appropriate 
innovation in the development and use of new derivative instruments 
that may be beneficial for funds and investors. We also believe that 
this may increase investor protection by requiring that funds assess 
the risk of their derivatives transactions and segregate assets to 
cover an amount in addition to the mark-to-market liability.
    Many of the impacts of the proposed rule will depend on how funds 
react to the conditions it imposes. As an initial matter, based on the 
DERA staff analysis, which shows that a substantial majority of funds 
in the DERA sample did not use derivatives or used derivatives to a 
limited extent, the portfolio limits under the proposed rule are not 
expected to affect the investment activities of a majority of 
funds.\537\ Funds that react to the rule, however, may do so in several 
different ways.
---------------------------------------------------------------------------

    \537\ DERA White Paper, supra note 73, Table 6.
---------------------------------------------------------------------------

    Some funds will not be compelled by the proposed rule to modify 
their derivatives exposure, but they might nonetheless respond to the 
proposed rule's treatment of derivatives by modifying their derivatives 
holdings. For example, because funds today apply the notional amount 
segregation approach to certain derivatives, such as physically settled 
Treasury futures or CDS, there exists, as discussed above, an incentive 
for funds to invest in derivatives for which funds apply the mark-to-
market segregation approach. Because the proposed rule would remove the 
disparate treatment for different derivatives with the same notional 
amounts, it is possible that the proposed rule may result in greater 
use of the types of derivatives that funds today may use less 
extensively because of the need to apply the notional amount 
segregation approach. By contrast, funds that today only segregate the 
mark-to-market liability for their derivatives would need to segregate 
a greater quantity of assets and, if the fund had not been segregating 
cash and cash equivalents, would generally be required to segregate 
assets that are more liquid. Such a fund could determine to reduce its 
derivatives exposure to avoid segregating a greater quantity of assets 
that are cash and cash equivalents. Similarly, funds that use

[[Page 80959]]

derivatives in an amount that minimally exceeds the threshold for 
implementing a risk management program may reduce derivatives use below 
that threshold in order to avoid that cost. To the extent that any 
funds were hesitant to use derivatives (or any particular type of 
derivative) given the lack of specific Commission or staff guidance 
addressing certain derivatives, these funds might become more willing 
to use those derivatives under the proposed rule. Thus, the proposed 
rule may lead to an increase or decrease in the use of particular 
derivatives or an increase or decrease in derivatives use by particular 
funds.
    Because we do not know to what extent the current regulatory 
framework for derivatives may have been influencing funds' use of 
derivatives--for example, the extent to which differences in the two 
approaches to asset segregation may have been distorting funds' choices 
of products in the current market--we do not know to what extent funds 
would change existing positions, or would enter into different 
positions going forward, under the proposed rule. Accordingly, we 
cannot quantify this potential effect. We discuss the potential effects 
of each directional option (decreasing derivatives use, shifting 
portfolio composition, or increasing derivatives use) below.
    A fund may incur costs to reduce derivatives use if it pays a 
penalty or other amount to a counterparty to unwind a position, or if 
the fund sells its position to a third party (or the fund enters into a 
directly offsetting position to make use of the netting provision in 
the proposed rule.) To the extent that a fund uses derivatives for 
directional exposure, reducing the use of derivatives could reduce 
returns to the fund's shareholders. This could potentially make the 
fund (1) less attractive to existing shareholders who desire greater 
market exposure; or (2) more attractive to new shareholders who prefer 
lower levels of exposure (or encourage current shareholders to increase 
their investment in the fund because of the lower derivatives 
exposure). To the extent that a fund uses derivatives for hedging, 
reducing derivatives use could change the risk profile of the fund's 
portfolio, depending on the derivative position that the fund 
determines to close as well as other related changes the fund 
determines to make to its portfolio.\538\
---------------------------------------------------------------------------

    \538\ We discuss below potential limitations on a fund's ability 
to use derivatives for hedging purposes.
---------------------------------------------------------------------------

    A fund that determines to shift the composition of derivatives 
used, for example toward physically-settled derivatives, would incur 
transaction costs in modifying the portfolio--the costs to exit prior 
positions and to enter into new ones. But the benefits to the fund of 
holding a more ``optimal'' (from its perspective) composition of 
derivatives--i.e., one that is not influenced by the differential 
regulatory treatment of certain derivatives--could offset in whole or 
in part, or even exceed, those costs.
    A fund that determines to increase its use of derivatives would 
incur transaction costs to enter into the new positions and, if those 
new positions were to cause the fund's exposure to exceed 50% of net 
asset value, the fund would be required to adopt and implement a 
formalized derivatives risk management program under the proposed rule 
and incur the associated costs. The impacts to the funds' investors 
would be different from those experienced by investors in funds that 
determine to reduce derivatives exposure. If the derivatives are used 
for directional exposure, the increase in leverage increases the 
potential for increased returns but also increases risk of loss, which 
some investors might prefer and others might not. If the derivatives 
are used for hedging, the increase in derivatives could increase or 
decrease the level of risk (and thus potential return) that the fund 
assumes, depending on the particular derivatives entered into.
    With respect to each of the possibilities listed above, and for 
several additional options discussed in greater detail below, we 
describe the existence of transaction costs for the fund to terminate 
or transfer existing obligations, and to enter into new ones. These 
costs include fees, and operational and administrative costs, as well 
as the spread paid to intermediaries and the market impact on prices, 
if any. The degree of mark-ups and market impact can turn on the 
transparency and liquidity of the market, as well as the size of other 
market participants (i.e., counterparties) and competitiveness in the 
market. There may also be tax costs. We lack the data to quantify these 
potential transaction costs. While some of the derivatives instruments 
are exchange-traded, many of these instruments are bilaterally 
negotiated. We believe costs would generally be lower for more liquid, 
exchange-traded derivatives when compared with more complicated, 
bespoke, or OTC-traded derivatives. We also believe costs would 
generally be lower for larger market participants that actively 
transact in derivatives versus smaller market participants.\539\
---------------------------------------------------------------------------

    \539\ See, e.g., O'Hara, Wang & Zhou, The Best Execution of 
Corporate Bonds, Working Paper (Oct. 26, 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2680480 (finding that 
insurance companies trading in corporate bonds receive better 
execution prices if they are more active in the market, and that 
trading with a dominant dealer or underwriter worsens those 
differentials).
---------------------------------------------------------------------------

    Some types of funds use derivatives more extensively. Alternative 
strategy funds, in particular, have experienced significant growth and 
have been shown to be heavier users of derivatives. Four managed 
futures funds in DERA's sample, for example, exhibited aggregate 
notional exposures ranging from approximately 500% to 950% of net 
assets, far greater than the exposure limits we are proposing today. 
Some ETFs (or other funds) expressly use derivatives to obtain a 
leveraged multiple of two or three times the daily performance (or 
inverse performance) of an index. Some of these funds had derivatives 
exposures exceeding 150% of net assets.\540\ A limited number of other 
types of funds in DERA's sample also had aggregate exposures exceeding 
150% of net assets. Funds that today operate with aggregate exposure 
far in excess of 150% of net assets (or, for certain leveraged ETFs or 
mutual funds, that seek to maintain a constant level of leveraged 
investments that require exposure in excess of 150%) could not continue 
operating as they do today under the proposed rule's 150% exposure 
limit. Furthermore, we do not expect that funds that use derivatives 
extensively in order to obtain market exposure generally would be able 
to satisfy the VaR test included in the risk-based limit.\541\ These 
types of funds thus appear most likely to be affected by the proposed 
rule.
---------------------------------------------------------------------------

    \540\ As discussed above, these funds are sometimes referred to 
as trading tools since they seek to provide a specific level of 
leveraged exposure to a market index over a fixed period of time.
    \541\ See supra note 314 (explaining that a fund that holds only 
cash and cash equivalents and derivatives would not be able to 
satisfy the VaR test).
---------------------------------------------------------------------------

    Some funds within this category of heavier derivatives users might 
be limited under the proposed rule from achieving high leverage through 
derivatives, and they might choose to modify their investment 
activities or portfolio composition in order to comply with the 
proposed rule. They could do so in three principal ways. First, a fund 
could react to the proposed rule's conditions (e.g., the restrictions 
on the amount of aggregate exposure a fund may obtain under the 150% 
and 300% exposure limits) by reducing its

[[Page 80960]]

derivatives use below the relevant limit, or by declining to enter into 
transactions going forward that would exceed these limits. A fund that 
is compelled to react to the proposed rule and that does so by reducing 
its derivatives exposure would experience effects, including 
transactions costs, similar to those discussed above for a fund that 
reduces its derivatives exposure voluntarily.
    Second, a fund that is limited by the proposed rule from achieving 
high leverage through derivatives might modify its investment 
activities by engaging in transactions that might involve leverage but 
not the issuance of a senior security that would be restricted by 
section 18 (e.g., a purchased option). Some funds may also use fund of 
funds investment structures to seek leverage through investments in 
other funds, although the underlying funds in these arrangements also 
would be subject to the limitations in section 18 and the requirements 
of the proposed rule if those underlying funds are registered 
funds.\542\ A fund may use these types of transactions to help it 
remain in compliance with the proposed rule, or avoid reliance on the 
proposed rule altogether. To the extent that a fund pursues leverage 
other than through a derivative that is subject to the proposed rule, 
the fund could incur transaction costs to close out positions covered 
by the proposed rule, and enter into new positions not covered by the 
proposed rule. These transaction costs are of the same nature as those 
discussed above for funds that reduce their derivatives exposure in 
response to the new rule. Further costs for this option are the 
opposite of the discussion above with respect to shifting from cash-
settled to physically-settled instruments: Whereas there, investors 
could benefit from a more optimally-designed portfolio not subjected to 
regulatory arbitrage, here, investors may find it detrimental if the 
transactions entered into by funds to avoid the proposed rule were less 
efficient, or less calibrated to the fund's disclosed investment 
approach or risk/reward profile, than would otherwise be the case.
---------------------------------------------------------------------------

    \542\ The Investment Company Act also imposes limitations on 
fund of funds investments. See, e.g., sections 12(d)(1)(A), (B) and 
(C) of the Investment Company Act. In addition, we understand that 
funds generally elect federal income tax treatment as a ``regulated 
investment company'' under Subchapter M of the Internal Revenue Code 
and that diversification requirements under Subchapter M may also 
limit certain fund of funds investments.
---------------------------------------------------------------------------

    Third, a fund that is limited by the proposed rule from achieving 
high leverage through derivatives might modify its investment 
activities and reduce its use of derivatives by purchasing the 
securities underlying a derivative instrument (e.g., purchasing the 
securities underlying an index future, rather than the index future 
itself). Derivatives can provide a lower-cost method of achieving 
desired exposures than purchasing the underlying reference asset 
directly. For example, a fund may use index futures as a cheaper means 
to gain exposure to certain markets or equitize cash, rather than 
purchasing the underlying equities included in the index.\543\ Funds 
responding to the proposed rule in this manner would incur the 
incremental costs of trading constituent stocks of the index. As 
another example, a fund might also gain exposure to (or hedge) credit 
risk more cheaply through a credit default swap on an individual name 
or on a CDS index rather than by purchasing or shorting bonds in the 
cash market.\544\ To the extent that certain funds may be required to 
reduce their use of derivatives, these funds may experience higher 
trading costs. The transaction costs for exiting existing derivatives 
instruments are described in greater detail above. The costs of 
purchasing the underlying instruments can vary widely based on factors 
relating to the number and liquidity of the underlying instruments, in 
addition to the trading costs that various types of funds may incur in 
order to transact in the underlying instruments.\545\ For example, 
transaction costs might make it more expensive to replace a total 
return swap on the S&P 500 by purchasing each of the underlying 
instruments, or even a sampling thereof, but a total return swap based 
on a narrower index might be more readily replaced.\546\
---------------------------------------------------------------------------

    \543\ See 2010 ABA Derivatives Report, supra note 70, at 8 
(``[W]hen a fund has a large cash position for a short amount of 
time, the fund can acquire long futures contracts to retain (or 
gain) exposure to the relevant equity market. When the futures 
contracts are liquid (as is typically the case for broad market 
indices), the fund can eliminate the position quickly and frequently 
at lower costs than had the fund actually purchased the reference 
equity securities.'') For example, See Biswas, et al., The 
Transaction Costs of Trading Corporate Credit, Working Paper (Mar. 
1, 2015) (``Transaction Costs of Trading Corporate Credit''), 
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2532805 (``For institutional-size trades up 
to $500K, bonds are up three times as expensive as the corresponding 
position using credit default swaps'').
    \544\ The 2010 ABA Derivatives Report, supra note 70, at 8, also 
observes that ``a fund could write a CDS, offering credit protection 
to its counterparty. In doing so the fund gains the economic 
equivalent of owning the security on which it wrote the CDS, while 
avoiding the transaction costs that would have been associated with 
the purchase of the security.''
    \545\ See supra note 539.
    \546\ In many cases, it is possible to obtain a proxy for an 
index return with only a subsample of the index constituents. While 
this option reduces the replication transaction cost, it introduces 
a tracking error and is unlikely to be as cost efficient as 
transacting in the total return swap. See generally, e.g., Joel M. 
Dickson et al., Understanding synthetic ETFs Vanguard (June 2013), 
available at https://pressroom.vanguard.com/content/nonindexed/6.14.2013_Understanding_Synthetic_ETFs.pdf, at 9.
---------------------------------------------------------------------------

    In addition to the direct effects on the fund of transacting in the 
derivatives rather than in the underlying assets, there are indirect 
effects. A fund that reduces its use of derivatives or replaces them 
with underlying assets may affect the fund's liquidity. We recognize 
that certain derivatives can be more liquid than their underlying 
reference assets. For example, it is cheaper to trade certain CDS 
contracts than to trade the underlying bonds.\547\ In addition, some 
derivatives instruments may continue to trade during a broader stock 
market halt or during the halt in the trading of a particular security. 
On the other hand, some derivatives may be less liquid than the 
underlying assets. For example, OTC swaps are tied to a specific 
counterparty and may be more customized; an OTC swap therefore may be 
less liquid than the underlying securities (which may be exchange 
traded and centrally cleared). Because the staff's data show that most 
funds in DERA's sample were below the 150% proposed exposure 
limitation, however, we expect that the proposed rule would not have a 
material effect on the way in which the majority of funds operate 
today, including how these funds manage their liquidity. Finally, if a 
number of funds were to respond to the proposed rule by shifting to 
purchasing the underlying assets, it is possible that demand for, and 
thus liquidity of, certain derivatives might be reduced while demand 
for, and liquidity of, the related underlying assets might be 
increased.
---------------------------------------------------------------------------

    \547\ See The Transaction Costs of Trading Corporate Credit, 
supra note 543.
---------------------------------------------------------------------------

    These three approaches all involve a fund changing its investment 
strategy in order to comply with the rule and are likely to have 
similar impacts on capital formation. A fund might seek to reduce its 
aggregate exposure by replacing a derivative with the underlying 
security. As a result, the overall demand for the underlying securities 
may increase and therefore promote capital formation, assuming that 
those underlying securities would not themselves have been held by the 
counterparty to the fund's derivative contract to hedge that 
exposure.\548\ On the other hand, if a

[[Page 80961]]

fund is unable to use derivatives to mitigate or eliminate certain 
risks posed by its portfolio securities, a fund may find it less 
desirable to hold such securities, adversely affecting capital 
formation by potentially reducing demand for debt and equity 
securities.\549\ A reduction in the use of derivatives may adversely 
affect the pricing efficiency of underlying reference securities,\550\ 
thereby adversely affecting capital formation. In addition, to the 
extent that a reduction in the use of derivatives adversely affects 
pricing efficiency or transparency, it may become more difficult for a 
fund (or its third-party pricing service) and its board of directors to 
determine fair values where necessary. As we discuss below, however, we 
believe that the proposed rule would affect only the small percentage 
of funds that use derivatives to a much greater extent than funds 
generally, and thus, any such aggregate effects are not likely to be 
significant.\551\
---------------------------------------------------------------------------

    \548\ For example, a fund that obtains synthetic long exposure 
to a corporate debt instrument by writing a credit default swap may 
decide, instead, to hold the debt instrument directly.
    \549\ For example, if a fund can no longer use a credit default 
swap to help mitigate credit risk, the fund might be less willing to 
hold a high-yield bond, which may affect the issuance of high-yield 
bonds.
    \550\ For example, option listings may incentivize market 
analysts to research the underlying securities. Options trading may 
also facilitate market pricing of the underlying securities. See 
Arrata William, Alejandro Bernales & Virginie Coudert, The Effects 
of Derivatives on Underlying Financial Markets: Equity Options, 
Commodity Derivatives and Credit Default Swaps, SUERF 50th 
Anniversary Volume 445 (2013).
    \551\ To the extent that aggregate derivatives usage by funds is 
small compared to the world-wide derivatives market (see supra note 
518), and to the extent that only some fraction of derivatives usage 
by funds would potentially be affected, the expected effect on the 
world-wide derivatives market would be negligible.
---------------------------------------------------------------------------

    Other funds that use derivatives extensively, including the types 
of funds discussed above (as those most likely to be impacted by the 
proposed rule), may be unable to scale down their aggregate exposures 
or otherwise de-lever their funds in a way that allows the fund to 
maintain its investment objectives or provide a product that has 
sufficient investor demand. Such a fund may choose to deregister under 
the Act and liquidate, and/or the fund's sponsor may choose to offer 
the fund's strategy as a private fund or (public or private) commodity 
pool.
    For example, a fund that must reduce its aggregate exposure may not 
be able to offer the returns (and risks) that some investors demand. 
ETFs (or other funds) that use derivatives to obtain a leveraged 
multiple of the performance (or inverse performance) of an index and 
that require exposures in excess of 150% of net assets could not 
operate in their current form under the proposed rule, and may not have 
sufficient demand at lower exposure levels. Some of these funds 
therefore may be liquidated or merged into other funds.
    As discussed above, however, alternative strategy funds and certain 
leveraged ETFs (the types of fund most likely to be particularly 
affected by the proposed rule) represent a very small percentage of 
fund assets under management--approximately 3% of all fund assets.\552\ 
Only a small subset of funds--primarily managed futures funds and 
leveraged ETFs--would appear to be unable to operate as they do today 
while complying with the proposed rule's aggregate exposure 
limits.\553\ Therefore, we believe that the number of funds that may be 
unable to scale down their aggregate exposures or otherwise de-lever 
their funds in a way that allows the funds to maintain their investment 
objectives or provide a product that has sufficient investor demand--
i.e., those that may have to pursue deregistration and liquidation--
would be limited in many instances to the small percentage of funds 
that use derivatives to a much greater extent than funds generally, and 
would not be significant to the industry as a whole.
---------------------------------------------------------------------------

    \552\ See DERA White Paper, supra note 73, Table 1.
    \553\ Based on our staff's review of fund filings with the 
Commission and Morningstar data, we estimate that there are 
approximately 60 managed futures funds. Based on information from 
ETF.com, we estimate that there are 43 2x leveraged ETFs and 36 2x 
inverse ETFs (79 total), and 36 3x leveraged ETFs and 28 3x inverse 
ETFs (64 total). We note that some funds that seek to deliver two 
times the performance of an index may be able to achieve this level 
of exposure in compliance with the proposed rule's 150% exposure 
limit by investing in securities included in the benchmark index and 
obtaining additional exposure through derivatives transactions. 
Although we understand that most of the funds that seek to achieve 
performance results, over a specified period of time, that are a 
multiple of or inverse multiple of the performance of an index or 
benchmark are ETFs, some mutual funds also pursue these strategies. 
These mutual funds would be affected to same extent by the proposed 
rule as leveraged ETFs.
---------------------------------------------------------------------------

    In the event that a fund is unable to operate under the proposed 
rule's aggregate exposure limit, the fund's sponsor and/or investment 
adviser may choose to: (1) Offer the fund as a private fund or (public 
or private) commodity pool; (2) liquidate the fund's assets and 
deregister the fund under the Act; or (3) merge the fund into another 
fund. We estimate that the average cost associated with such actions 
would range from $30,000 to $150,000, per fund, depending on the 
particular actions taken by the fund (or its sponsor or investment 
adviser).\554\ These costs are the direct costs to the fund. There are 
also indirect costs associated with a fund's decision to deregister and 
for the fund's sponsor to offer the fund's strategy as a private fund 
or public or private commodity pool. To the extent that a fund becomes 
unavailable to investors, or available only at a higher cost, investors 
and competition will be adversely affected. For example, non-accredited 
investors generally would not be able to purchase interests in 
equivalent unregistered funds. However, accredited investors who prefer 
unregistered funds, or who are agnostic about the form, could have the 
same or greater choice of funds, and competition among funds offering 
similar investment objectives or risk/return profiles as private funds 
may increase. Similarly, registered funds that choose to operate as 
public commodity pool investment partnerships, rather than SEC-
registered funds, would be accessible to a broad population of 
investors. In addition, investment advisers, counterparties, and other 
market participants whose business is concentrated on offering, 
managing, or servicing these type of funds may similarly be adversely 
affected.\555\ For example, it could mean substantially lower 
management fees for advisers whose advisory business primarily involves 
funds that would be unable to operate under the proposed rule's 
exposure limits. It also could mean higher management and/or 
performance fees if the new investment vehicle is a private fund. To 
the extent that these parties are adversely affected, competition also 
could be negatively affected. We are unable to quantify these indirect 
costs because we cannot determine the extent to which adequate 
substitutes would exist in the market.
---------------------------------------------------------------------------

    \554\ This estimate is based on staff outreach and experience 
and includes, for example: Time costs to consult with appropriate 
personnel of the investment adviser (e.g., portfolio managers and 
other senior management) and prepare the necessary documentation 
(e.g., documents related to fund liquidation, fund formation, fund 
registration (general counsel and chief compliance officer); time 
costs to obtain required fund board approvals; internal and external 
costs related to required shareholder approvals; and external costs 
for a fund's and/or fund board's outside legal counsel. We note that 
a fund may incur costs substantially higher or lower than our 
estimates, based on the size and complexity of the fund.
    \555\ See supra note 551.
---------------------------------------------------------------------------

    The proposed rule's aggregate exposure limits may, in certain 
situations, constrain a fund's ability to use derivatives as a hedge in 
connection with its investment strategies. Although the analysis 
conducted by DERA staff indicates that most funds do not today have 
aggregate exposure in excess of the proposed rule's 150% and 300% 
exposure limitations, it is possible that a fund that uses a 
substantial amount of

[[Page 80962]]

derivatives could be in a position where it could not engage in 
additional derivatives transactions, including as a portfolio hedge in 
certain circumstances. A fund that reaches the proposed aggregate 
exposure limits would not be permitted to enter into additional 
derivatives transactions unless the fund would be in compliance with 
the applicable exposure limitation immediately after entering into each 
transaction. As a consequence, it is possible that a fund may need to 
limit its derivatives transactions, or close out existing derivatives 
positions, in order to retain flexibility to enter into risk mitigating 
derivatives transactions at a later date. Alternatively, a fund may, in 
certain circumstances, refrain from derivatives transactions that it 
expects would be risk mitigating, which could potentially have the 
effect of increasing a fund's risks.
    For example, it is possible that a fund that complies with the 
risk-based portfolio limit's VaR test could be precluded from entering 
into additional derivatives to protect against a particular risk if the 
fund had reached the risk-based portfolio limit's 300% limit on 
aggregate exposure. Such a limitation would appear to apply only if the 
fund engages in extensive use of derivatives. For example, a bond fund 
could seek to protect its portfolio against 100% of its interest rate 
risk and currency risk through derivatives transactions and also seek 
to hedge a substantial amount of its credit risk while still having 
room under the 300% limit to seek to hedge other risks such as 
inflation risk.\556\ We acknowledge that any limitation, such as the 
300% exposure limit in the risk-based portfolio limit, may constrain a 
fund's ability to implement its strategy, and in particular 
circumstances, may require a fund to take actions other than adding 
additional derivatives to manage and reduce portfolio risks. In such a 
circumstance, a fund may experience greater returns, albeit with 
greater risk, if the fund is unable to enter into additional hedging 
transactions because it has reached the 300% limit. A fund may decide 
to maintain the riskier position, shift away from the underlying assets 
that it had previously sought to hedge (so as to maintain its previous 
level of risk), or hedge against the risk using instruments not within 
the scope of this rule. Because we are unable to reasonably anticipate 
the ways in which a fund is likely to respond to the 300% limitation, 
we are unable to quantify the expected impact of the portfolio 
limitation on a fund's returns.\557\
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    \556\ For example, the fund could enter into interest rate 
derivatives with a notional amount of 100% of the fund's net assets 
in order to seek to hedge interest rate risk; enter into currency 
derivatives with a notional amount of 100% of the fund's net assets 
in order to seek to hedge currency risk; and enter into credit 
derivatives with a notional value that is less than 100% of the 
fund's net assets to seek to hedge credit risk. The fund in this 
example would have aggregate exposure of something less than 300% 
and thus could obtain some additional derivatives exposure--up to 
the 300% aggregate limit--provided the fund complied with the VaR 
test under the risk-based portfolio limit and the proposed rule's 
other conditions.
    \557\ See text surrounding supra note 534.
---------------------------------------------------------------------------

    Proposed rule 18f-4 would also require a fund that engages in 
financial commitment transactions in reliance on the rule to maintain 
qualifying coverage assets equal in value to the fund's full 
obligations under those transactions. The proposed rule generally would 
take the same approach to financial commitment transactions that we 
applied in Release 10666, with some modifications discussed above in 
III.E. The proposed rule's requirements for financial commitment 
transactions, similar to the approach we applied in Release 10666, 
would limit the extent to which a fund could engage in financial 
commitment transactions, in that the fund could not incur obligations 
under those transactions in excess of the fund's qualifying coverage 
assets. This would limit a fund's ability to incur obligations under 
financial commitment transactions to 100% of the fund's net assets, as 
discussed above in III.E. We believe that the proposed rule is not 
likely to impose any significant additional limitation on the extent to 
which a fund can incur obligations under financial commitment 
transactions (as compared with the current economic baseline) because, 
as noted above, funds that enter into these transactions today do so in 
reliance on Release 10666, which generally would limit the fund's 
obligations under these transactions to the fund's net assets.\558\ 
This is consistent with DERA staff's analysis, which showed that no 
fund in the DERA sample had greater than 100% aggregate exposure 
resulting from financial commitment transactions (the current economic 
baseline for such transactions).\559\ Accordingly, we believe that the 
proposed rule's asset segregation requirements for financial commitment 
transactions would have no measurable effect on efficiency, 
competition, or capital formation.
---------------------------------------------------------------------------

    \558\ See supra note 93 and accompanying text.
    \559\ DERA White Paper, supra note 73, Table 6.
---------------------------------------------------------------------------

    We also note that the proposed asset segregation requirements, to 
the extent that a fund is required to increase its holdings of cash and 
cash equivalents (for derivatives transactions) or assets convertible 
to cash or that can generate cash (for financial commitment 
transactions), may adversely affect efficiency, competition, and 
capital formation. For example, holding higher levels of these assets 
may reduce efficiency by requiring a fund's investment adviser to 
invest the fund's assets in cash and cash equivalents or assets 
convertible to cash or that can generate cash to a greater extent than 
the adviser otherwise would invest the fund's assets, given the fund's 
investment strategy and investor base. This, in turn, could adversely 
affect investors by reducing a fund's investment returns, and reduce 
competition by decreasing a fund's investment opportunities to generate 
higher returns. In addition, a fund that holds greater amounts of cash 
and cash equivalents (all other things, such as fund flows, being 
equal) necessarily holds a smaller amount of securities in its 
portfolio, which may adversely affect capital formation. As discussed 
in Section III.C.2 above, however, we understand that cash and cash 
equivalents are commonly used for posting collateral or margin for 
derivatives transactions.\560\ Also, given that the margin posted is 
permitted to be offset against the assets that would be required to be 
segregated under the proposed rule, the magnitude of funds' shift into 
cash and cash equivalents under the proposed rule may not be as 
significant as it would be otherwise, thereby mitigating the negative 
impact on capital formation that the asset segregation requirements of 
the proposed rule may cause.
---------------------------------------------------------------------------

    \560\ See supra note 370 and accompanying text.
---------------------------------------------------------------------------

    Finally, we note that the size of a fund, or the complex of funds 
to which a fund belongs, could have certain competitive effects with 
respect to a fund's compliance with proposed rule 18f-4, including the 
implementation of its derivatives risk management program, where 
applicable. For example, if there are economies of scale in creating 
and administering multiple derivatives risk management programs, a fund 
that is part of a large fund complex would have a competitive 
advantage. A fund in a smaller complex, on the other hand, may use a 
greater portion of its resources to create and administer a derivatives 
risk management program, which may increase barriers to entry in the 
fund industry, and lead to an adverse effect on competition. The size 
of a fund complex also could produce competitive advantages or 
disadvantages with respect to a fund's use of products developed by 
third parties to assist a fund in calculating

[[Page 80963]]

and monitoring its compliance with the proposed rule's portfolio 
limitations and asset segregation requirements. For example, a fund in 
a large complex could receive relatively more favorable pricing for 
third-party risk management tools, if the fund complex were to purchase 
discounted bulk services from the tool developer or receive 
relationship-based pricing discounts. Regardless of the extent to which 
a third-party provides its product at a discounted rate, the proposed 
rule may positively impact third-party service providers by increasing 
sales. We note that the competitive effects discussed above in the 
context of funds and/or fund families may, instead, apply to a fund's 
investment adviser. This may occur where the investment adviser (rather 
than the fund) incurs the costs associated with implementing the 
proposed rule's requirements, and does not, or is unable to, pass such 
costs along to the fund (for example, through increases in its advisory 
fees).

D. Specific Benefits and Quantifiable Costs

    We have discussed above a number of general benefits and costs, 
including effects on efficiency, competition, and capital formation 
that we believe would generally result from the proposed rule. Taking 
into account the goals of the proposed rule and the economic baseline, 
as discussed above, this section explores specific benefits and 
quantified costs, in the context of each core element of the proposed 
rule.
    We note that the following analyses and estimates are made on a per 
fund basis, and are not made on a fund complex basis. We have made 
these estimates on a per fund basis because the DERA sample analysis 
upon which we rely in our economic analysis was performed at a fund 
level. In addition, we believe that the extent of derivatives use 
varies widely between funds. Accordingly, we believe that estimating 
costs on a per fund basis is likely to provide more meaningful 
estimates, consistent with the approach taken in the DERA sample. We 
recognize, however, that many funds are part of a fund complex, and 
thus may realize economies of scale in complying with the proposed 
rule.\561\ As discussed below, our estimated ranges of per fund costs 
take this into account. The low end of our range of costs reflects the 
estimated costs for a fund that is part of a fund complex (which is 
likely to experience economies of scale), while the high end of our 
range of costs reflects the estimated costs likely borne by a stand-
alone fund that is not part of a fund complex or that is the only fund 
in a complex that relies on the rule.
---------------------------------------------------------------------------

    \561\ The extent of the economies of scale may depend, in part, 
on the extent to which multiple funds in the same fund complex use 
derivatives transactions and financial commitment transactions in 
similar ways.
---------------------------------------------------------------------------

1. Exposure-Based Portfolio Limit
a. Requirements
    As discussed above in section III.B.1, the proposed rule would 
require that a fund that engages in derivatives transactions in 
reliance on the rule comply with one of two alternative portfolio 
limitations. The first portfolio limitation--the exposure-based 
portfolio limit--would place an overall limit on the amount of exposure 
to underlying reference assets, and potential leverage, that a fund 
would be able to obtain from derivatives transactions covered by the 
proposed rule by limiting the fund's exposure under these derivatives 
transactions and other senior securities transactions to 150% of the 
fund's net assets.
b. Benefits
    The 150% aggregate exposure limit in the exposure-based portfolio 
limit (as well as the 300% exposure limit in the risk-based portfolio 
limit discussed below) is designed primarily to impose an overall limit 
on the amount of exposure to underlying reference assets, and potential 
leverage, that a fund would be able to obtain through derivatives 
subject to the rule and other senior securities transactions, while 
also providing flexibility for a fund to use derivatives for a variety 
of purposes.\562\ An outer limit on aggregate exposure would prevent 
funds from obtaining extremely high leverage that we believe may be 
inconsistent with the Act's stated concern about senior securities that 
increase unduly the speculative nature of a fund's outstanding 
securities. The proposed rule, therefore, is expected to benefit 
investors by providing a clear and workable framework in which funds 
may continue to use derivatives covered by the proposed rule for a 
variety of purposes, but subject to a limit on the potential leverage 
(and leverage-related risks) that could be obtained through these 
covered instruments. By explicitly limiting a fund's aggregate exposure 
from derivatives and other senior securities transactions, the proposed 
rule also may reduce the likelihood of extreme fund losses associated 
with leveraged portfolios under stressed market conditions. As a 
result, the proposed rule may reduce the possibility of a fund needing 
to liquidate and the associated adverse impacts on market participants 
and thus may promote market stability.\563\ As we discussed above, the 
DERA staff analysis also indicates that most funds and their advisers 
would be able to continue to operate and to pursue a variety of 
investment strategies, including alternative strategies (under the 150% 
exposure limitation).\564\
---------------------------------------------------------------------------

    \562\ The proposed rule's portfolio limitations, although 
designed to impose a limit on potential leverage, also could help to 
address concerns about a fund's ability to meet its obligations, as 
noted above. See supra note 152.
    \563\ While we lack empirical evidence that a registered fund's 
liquidation under stressed market conditions, including the 
potential forced sale of assets, could have adverse effects on 
market participants, we believe that the avoidance of potential 
negative externalities from a fund's liquidation into a stressed 
market broadly promotes market resiliency and stability.
    \564\ See supra note 210 and accompanying text.
---------------------------------------------------------------------------

    The proposed rule's definition of exposure for derivatives 
transactions would require that a fund aggregate the notional amounts 
of those derivatives (with certain adjustments specified in the 
proposed rule).\565\ For most types of derivatives, the notional amount 
can serve as a measure of the fund's investment exposure to the 
derivative's underlying reference asset or metric. While there are 
other measures that could be used, the notional amount is a measure 
that is well-understood and recognized, and readily determinable by 
funds.\566\ In addition, the notional amount is a measure for 
determining

[[Page 80964]]

exposure that is adaptable to different types of fund strategies or 
different uses of derivatives, including types of fund strategies and 
derivatives that may be developed in the future. Funds, particularly 
smaller or less sophisticated funds, may benefit from the ease of 
application of a bright-line, straightforward metric such as this one, 
as compared to a test that would require consideration of the manner in 
which a fund uses derivatives in its portfolio (e.g., whether 
particular derivatives are used for hedging.
---------------------------------------------------------------------------

    \565\ The proposed rule includes certain adjustments to the way 
in which a fund would generally be required to determine the 
``notional amount'' with respect to its derivatives transactions. 
For any derivatives transaction that provides a return based on the 
leveraged performance of a reference asset, the notional amount must 
be multiplied by the leverage factor; for any derivatives 
transaction for which the reference asset is a managed account or 
entity formed primarily for the purpose of investing in derivatives 
transaction, or an index that reflects the performance of such a 
managed account or entity, the notional amount must be determined by 
reference to the fund's pro rata share of the notional amounts of 
the derivatives transactions of such account or entity (``look-
through provision''); and for any ``complex derivatives 
transaction,'' (defined in rule 18f-4(c)(1) and discussed above in 
section III.B), the notional amount must be an amount equal to the 
aggregate notional amount of derivatives instruments, excluding 
other complex derivatives transactions, reasonably estimated to 
offset substantially all of the market risk of the complex 
derivatives transaction. See proposed rule 18f-4(c)(7)(iii)(C). The 
estimated operational costs associated with these aspects of the 
proposed rule are included in our cost estimates discussed below in 
section IV.D.1.c.
    \566\ See, e.g., Michael Chui, Derivatives markets, products and 
participants: an overview (Bank of International Settlements, IFC 
Bulletin No. 35 (Feb. 2012), available at http://www.bis.org/ifc/publ/ifcb35a.pdf (``Notional amount is the total principal of the 
underlying security around which the transaction is structured. It 
is easy to collect and understand.'').
---------------------------------------------------------------------------

c. Quantified Costs
    Funds that elect to rely on the rule would incur one-time and 
ongoing operational costs to establish and implement a 150% exposure-
based portfolio limitation.\567\ As discussed above, funds today employ 
a range of different practices, with varying levels of 
comprehensiveness, for complying with section 18's prohibitions, 
Commission positions, and staff guidance. Although the 150% exposure-
based portfolio limit would be new for all funds that seek to comply 
with the proposed rule, we anticipate that the relative costs to a 
particular fund are likely to vary, depending on the extent to which a 
fund enters into derivatives transactions, and, for example, the level 
of sophistication of a fund's current risk management processes 
surrounding its use of derivatives.
---------------------------------------------------------------------------

    \567\ As discussed below in section IV.D.4, a fund that seeks to 
rely on the proposed rule would not be required to have a 
derivatives risk management program provided the fund limits its 
aggregate exposure from derivatives transactions to no greater than 
50% of the fund's net assets (and does not use complex derivatives 
transactions). The costs that we estimate here for a fund to comply 
with the 150% exposure-based portfolio limit would include the costs 
for a fund to determine and monitor its compliance with the proposed 
50% exposure-based test (and complex derivatives transaction 
limitation) for establishing a derivatives risk management program.
---------------------------------------------------------------------------

    The extent to which a fund currently engages in derivatives 
transactions may affect the costs the fund would incur. For example, 
funds that today use derivatives more extensively may already have 
systems that can be used to determine a fund's exposure or that could 
more readily be updated to include that functionality. Proposed Form N-
PORT would require funds to report the notional amounts of certain 
derivatives on the form and, if we adopt Form N-PORT, the systems or 
enhancements put in place by funds in connection with Form N-PORT's 
reporting requirements may provide an efficient means to calculate 
notional amounts for proposed rule 18f-4. Conversely, a fund that uses 
derivatives only modestly may not have existing systems that can be as 
readily used to determine a fund's exposure, but a fund that uses 
derivatives modestly may be able to determine its exposure without the 
need to establish the kinds of more extensive systems that might be 
required or desired by funds that use derivatives more extensively.
    The types of derivatives a fund uses also may affect the costs the 
fund would incur. Funds that enter into complex derivatives 
transactions, as defined in the proposed rule, would be required to 
determine the notional amounts of those transactions using the 
alternative approach specified in the proposed rule for complex 
derivatives transactions. Under this approach, the notional amount of a 
complex derivatives transaction would be equal to the aggregate 
notional amount(s) of derivatives instruments, excluding other complex 
derivatives transactions, reasonably estimated to offset substantially 
all of the market risk of the complex derivatives transaction at the 
time the fund enters into the transaction.\568\ It may require 
additional resources or analysis to determine a complex derivative's 
notional amount than, for example, a non-complex derivatives 
transaction with a stated notional amount that can be used for purposes 
of the proposed rule's exposure limitations. It may similarly require 
additional resources or analysis to determine the notional amount of a 
derivatives transaction for which the reference asset is a managed 
account or entity formed or operated primarily for the purpose of 
investing in or trading derivatives transactions, or an index that 
reflects the performance of such a managed account or entity, because 
the notional amount of such a derivatives transaction under the 
proposed rule would be determined by reference to the fund's pro rata 
share of the notional amounts of the derivatives transactions of such 
account or entity.\569\ In any case, the costs associated with the 
exposure-based portfolio limit would directly impact funds (and may 
indirectly impact fund investors if a fund's adviser incurs costs and 
passes along its costs to investors through increased fees).
---------------------------------------------------------------------------

    \568\ Proposed rule 18f-4(c)(7)(iii)(C).
    \569\ Proposed rule 18f-4(c)(7)(iii)(B).
---------------------------------------------------------------------------

    Our staff estimates that the one-time operational costs necessary 
to establish and implement an exposure-based portfolio limitation would 
range from $20,000 to $150,000 \570\ per fund, depending on the 
particular facts and circumstances and current derivatives risk 
management practices of the fund.\571\ These estimated costs are 
attributable to the following activities: (1) Developing and 
implementing policies and procedures \572\ to comply with the proposed 
rule's 150% exposure-based portfolio limit; (2) planning, coding, 
testing, and installing any system modifications relating to the 150% 
exposure-based portfolio limitation; \573\ and (3) preparing training 
materials and administering training sessions for staff in affected 
areas.
---------------------------------------------------------------------------

    \570\ These cost estimates, and the other quantified costs 
discussed below, are based, in part (adjusting such estimates to 
reflect specific provisions of the proposed rule), on staff 
experience and outreach, as well as consideration of recent staff 
estimates of the one-time and ongoing systems costs associated with 
other Commission rulemakings. See, e.g., 2014 Money Market Fund 
Reform Adopting Release, supra note 367, at sections III.A.5 and 
III.B.8 (estimating the one-time and ongoing operational costs to 
money market funds and others in the distribution chain to modify 
systems and implement certain reforms including liquidity fees and 
gates and/or a floating NAV); Liquidity Release, supra note 5, at 
section IV.C.1 (estimating the one-time and ongoing operational 
costs to most registered open-end funds to modify systems and 
implement new proposed rule 22e-4, requiring a liquidity risk 
management program). Although the substance and content of systems 
associated with establishing and implementing policies and 
procedures to comply with proposed rule 18f-4 would be different 
from the substance and content of systems associated with, for 
example, implementing the money market fund reforms or a new 
proposed liquidity risk management program, the costs associated 
with the core requirements of proposed rule 18f-4, like the 2014 
adopted money market fund reforms and the 2015 proposed liquidity 
risk management program reforms, would entail: Developing and 
implementing policies and procedures; planning, coding, testing, and 
installing any relevant system modifications; and preparing training 
materials and administering training sessions for staff in affected 
areas.
    \571\ We estimate that the costs discussed throughout this 
section would apply equally across affected fund types, including 
open-end funds, closed-end funds, ETFs, and BDCs.
    \572\ Throughout this economic analysis, we include in 
``developing and implementing policies and procedures'' cost 
estimates (both for initial and ongoing costs) associated with 
internal and external costs (e.g., compliance consultants, outside 
legal counsel), as well as staff costs (e.g., legal, compliance, 
portfolio management, risk management, and other administration 
personnel).
    \573\ Throughout this economic analysis, these cost estimates 
assume that affected funds would incur systems costs (i.e., 
computer-based systems costs) to assist them in complying with the 
requirements of proposed rule 18f-4. As discussed below, some funds 
may determine that computer-based systems are not required (e.g., 
the fund engages only in limited amounts of derivatives transactions 
for which notional exposures are easily determinable) and choose to 
implement a less automated system for complying with the proposed 
rule's requirements. We expect that such a fund would not incur 
costs related to this particular activity, and more likely, would 
incur total costs closer to the lower-end of the estimated range of 
costs.
---------------------------------------------------------------------------

    Our staff estimates that a fund that is part of a fund complex will 
likely benefit from economies of scale and incur costs closer to the 
low-end of the estimated range of costs, while a standalone fund is 
more likely to incur costs closer to the higher-end of the

[[Page 80965]]

estimated range of costs. Our staff also estimates that a standalone 
fund that is a light or moderate user of derivatives may choose to 
comply with the proposed rule by implementing a less automated system, 
and thus be more likely to incur costs closer to the low-end of the 
estimated range of costs. We anticipate that if there is demand to 
develop systems and tools related to the exposure-based portfolio 
limitation, market participants (or other third parties) may develop 
programs and applications that a fund could purchase at a cost likely 
less than our estimated cost to develop the programs and applications 
internally. In addition, the proposed rule may increase the demand for 
information services relating to derivatives to the extent that funds 
and advisers use third-party providers of such information services, 
such as risk management tools (e.g., VaR measures) and pricing data, 
and thus could potentially affect these third-party providers as well.
    Staff also estimates that each fund would incur ongoing costs 
related to implementing a 150% exposure-based portfolio limitation 
under proposed rule 18f-4. Staff estimates that such costs would range 
from 20% to 30% of the one-time costs discussed above.\574\ Thus, staff 
estimates that a fund would incur ongoing annual costs associated with 
the 150% exposure-based portfolio limit that would range from $4,000 to 
$45,000.\575\ These costs are attributable to the following activities: 
(1) Complying with the proposed rule's 150% aggregate exposure limit; 
(2) systems maintenance; and (3) additional staff training.
---------------------------------------------------------------------------

    \574\ See supra note 570. In estimating the total quantified 
costs of our proposed rule, we estimate that the portfolio 
limitation requirements would likely impose initial costs that are 
proportionately larger than ongoing costs. Accordingly, and based on 
staff experience and outreach, we estimate that the ongoing costs 
would range from 20% to 30% of the initial costs.
    \575\ This estimate is based on the following calculations: 0.20 
x $20,000 = $4,000; 0.30 x $150,000 = $45,000.
---------------------------------------------------------------------------

    In the DERA staff analysis, 68% of all of the sampled funds did not 
have any exposure to derivatives transactions.\576\ These funds thus do 
not appear to use derivatives transactions or, if they do use them, do 
not appear to do so to a material extent. We therefore estimate that 
approximately 32% of funds--the percentage of funds that did have 
derivatives exposure in the DERA sample--are more likely to enter into 
derivatives transactions and therefore are more likely to incur costs 
associated with either the exposure-based portfolio limit or the risk-
based portfolio limit. Excluding approximately 4% of all funds 
(corresponding to the percentage of sampled funds that had aggregate 
exposure of 150% or more of net assets and for which we have estimated 
costs for the risk-based limit),\577\ we estimate that 28% of funds 
(3,352 funds \578\) would incur the costs associated with the exposure-
based portfolio limit.
---------------------------------------------------------------------------

    \576\ DERA White Paper, supra note 73, Figure 11.1. As discussed 
above, we recognize that the DERA staff analysis used a sample of 
funds and reviewed the funds' then-most recent annual reports. The 
number of funds that may enter into senior securities transactions 
may be higher or lower than our estimate. We believe, however, that 
the results of the DERA staff analysis provide a reasonable basis to 
estimate the extent to which funds engage in derivatives and other 
senior securities transactions, and thus provide a reasonable basis 
to estimate the potential costs of the proposed rule to funds.
    \577\ DERA White Paper, supra note 73, Figure 9.1.
    \578\ This estimate is based on the following calculation: 
11,973 funds x 28% = 3,352 funds. The number of funds is based on 
the following calculation, as of June 2015: (9,707 open-end funds + 
560 closed-end funds + 1,706 ETFs = 11,973). See supra note 511 and 
accompanying text. In estimating the potential costs to funds 
related to their use of derivatives (both here and throughout this 
Release), we have estimated the total fund universe excluding money 
market funds and BDCs because money market funds do not enter into 
derivatives transactions and because we understand, and the DERA 
staff analysis shows, that BDCs do not use derivatives to a material 
extent (no BDC in the DERA staff sample had exposures to derivatives 
transactions). We have considered, however, the potential costs on 
these funds to the extent that such funds use financial commitment 
transactions (see supra section IV.D.5), and if a BDC were to engage 
in derivatives transactions, we expect that the BDC would incur the 
costs estimated here and throughout this Release for funds that 
engage in derivatives transactions.
---------------------------------------------------------------------------

    As discussed above, we have not aggregated the estimated range of 
costs across the entire fund industry. We note, however, that the vast 
majority of funds operate as part of a fund complex, and therefore we 
expect that many funds would achieve economies of scale in implementing 
the proposed rule. Accordingly, we believe that the lower-end of the 
estimated range of costs ($20,000 in one-time costs; $4,000 in annual 
costs) better reflects the total costs likely to be incurred by many 
funds.
    As noted above, based on the DERA sample, 68% of all sampled funds 
(8,142 funds' \579\) do not appear to use derivatives transactions (or 
if they do, do not appear to use them to a material extent). We do, 
however, recognize that although we do not estimate costs for these 
funds to comply with the proposed rule, some of these funds may wish to 
preserve the flexibility to do so in the future. Accordingly, we 
estimate that a fund that would otherwise not comply with proposed rule 
18f-4 would incur approximately $10,000 to evaluate the proposed rule 
and for the fund's board to consider approving the fund's use of the 
exemption provided by the rule (and therefore preserve the flexibility 
to comply in the future).\580\
---------------------------------------------------------------------------

    \579\ This estimate is based on the following calculation: 
11,973 funds x 68% = 8,142 funds.
    \580\ This estimate is based on staff outreach and experience 
and includes estimates for time spent by a fund's chief compliance 
officer, consultation with portfolio managers and other senior 
management of the fund's adviser, as well as the fund's board of 
directors.
---------------------------------------------------------------------------

2. Risk-Based Portfolio Limit
a. Requirements
    As discussed above in section III.B.2, the proposed rule would 
require that a fund that engages in derivatives transactions in 
reliance on the rule comply with one of two alternative portfolio 
limitations. The second portfolio limitation is the risk-based 
portfolio limit, which would focus primarily on a risk assessment of 
the fund's use of derivatives, and would permit a fund to obtain 
exposure in excess of that permitted under the first portfolio 
limitation where the fund's derivatives transactions, in the aggregate, 
result in an investment portfolio that is subject to less market risk 
than if the fund did not use such derivatives, evaluated using a VaR-
based test.
b. Benefits
    The principal benefit of the risk-based portfolio limit is that it 
recognizes that funds may use derivatives to not only seek higher 
returns through increased investment exposures, but importantly, also 
as a low-cost and efficient means to reduce and/or mitigate risks 
associated with the fund's portfolio. Some funds may have or develop 
investment strategies that include the use of derivatives that, in the 
aggregate, have relatively high notional amounts, but that are used in 
a manner that could be expected to reduce the fund's exposure to market 
risk rather than to increase exposure to market risk through the use of 
leverage. We expect that investors, and the markets in general, would 
benefit from an alternative portfolio limitation that focuses primarily 
on a risk assessment of a fund's use of derivatives, in contrast to the 
exposure-based portfolio limit, which focuses solely on the level of a 
fund's exposure. We also expect that funds should benefit from having 
the flexibility to select a VaR model that best addresses the funds' 
particular investment strategy and the nature of its portfolio 
investments, while also specifying certain minimum requirements in the 
proposed rule.\581\
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    \581\ See supra sections III.b.2.a, b.

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[[Page 80966]]

    In addition to the VaR test, the risk-based portfolio limit also 
includes an outer limit on aggregate exposure. Investors should also 
benefit from a flexible approach that allows for greater aggregate 
exposure (as compared with the 150% exposure-based portfolio 
limitation), and thus may promote the use of derivatives when, in 
aggregate, the result is an investment portfolio that is subject to 
less market risk than if the fund did not use such derivatives. 
Including an outer exposure limit, in addition to the VaR test, should 
provide benefits similar to those discussed above in section IV.D.1. 
Those benefits include improved investor protection, increased market 
stability through explicit limitations on potential leverage, and an 
exposure calculation that uses notional amounts that are widely 
available and adaptable to the varied types of derivatives instruments 
used by funds. We also believe that increasing the aggregate exposure 
limit from 150% (under the exposure-based portfolio limitation) to 300% 
of net assets when a fund's use of derivatives, in aggregate, has the 
effect of reducing the fund's exposure to market risk, should benefit 
investors by permitting funds to engage in increased use of derivatives 
to mitigate risks in the fund's portfolio.\582\ Setting the exposure 
limit at 300% as part of the risk-based portfolio limit would provide a 
limit for funds that could seek to operate under the risk-based 
portfolio limit that permits additional capacity for hedging 
transactions while still setting an overall limit on the amount of 
leverage that can be obtained through derivatives that are subject to 
the rule. Moreover, based on the DERA staff analysis, many of the funds 
with aggregate exposure in excess of 300% of net assets appear to use 
derivatives primarily to obtain market exposure (rather than to reduce 
the fund's exposure to market risk).\583\
---------------------------------------------------------------------------

    \582\ See supra note 239 and accompanying text (acknowledging 
that a hedging transaction may not always result in mitigating 
risk).
    \583\ See supra note 314.
---------------------------------------------------------------------------

c. Quantified Costs
    As with the quantified costs we discuss above regarding the 
exposure-based portfolio limit (section IV.D.1), we expect that funds 
would incur one-time and ongoing operational costs to establish and 
implement a risk-based exposure limit, including the VaR test. We 
expect that a fund that seeks to comply with the 300% aggregate 
exposure limit would incur the same costs as those that we estimated 
above in order to establish and implement the 150% exposure-based 
portfolio limit.\584\ Accordingly, we estimate below the costs we 
believe a fund would incur to comply with the VaR test. Although the 
VaR test and outer limit on aggregate exposure would be new for all 
funds that seek to comply with the proposed rule's risk-based exposure 
limit, we anticipate that the costs to a particular fund are likely to 
vary, depending on the extent to which a fund enters into derivatives 
transactions and the level of sophistication of a fund's existing risk 
management processes surrounding its use of derivatives. For example, 
funds that use derivatives extensively may already use a VaR model to 
evaluate and monitor the risks associated with derivatives 
transactions. As a result, these funds may incur lower costs as 
compared with other funds that do not already have sophisticated tools 
in place to monitor the risks associated with derivatives. In this 
regard, we note that funds that would seek to comply with the risk-
based portfolio limit, rather than the exposure-based portfolio limit, 
may be more likely to be more extensive users of derivatives because we 
expect that less extensive derivatives users generally would choose to 
operate under the exposure-based portfolio limit. These costs would 
directly impact funds (and may indirectly impact fund investors if a 
fund's adviser incurs costs and passes along its costs to investors 
through increased fees).
---------------------------------------------------------------------------

    \584\ The only difference would be an increased outer limit of 
aggregate exposure (from 150% to 300% of the fund's net asset 
value).
---------------------------------------------------------------------------

    Our staff estimates that the one-time operational costs necessary 
to establish and implement a VaR test would range from $60,000 to 
$180,000 \585\ per fund, depending on the particular facts and 
circumstances and current derivatives risk management practices of the 
fund. These estimated costs are attributable to the following 
activities: (1) Developing and implementing policies and procedures to 
comply with the proposed rule's requirement that the fund's full 
portfolio VaR is less than the fund's securities VaR; (2) planning, 
coding, testing, and installing any system modifications relating to 
the VaR test; and (3) preparing training materials and administering 
training sessions for staff in affected areas.
---------------------------------------------------------------------------

    \585\ See supra note 570.
---------------------------------------------------------------------------

    Our staff estimates that a fund that is part of a fund complex 
would likely benefit from economies of scale and incur costs closer to 
the low-end of the estimated range of costs, while a standalone fund is 
more likely to incur costs closer to the higher-end of the estimated 
range of costs. Our staff also estimates that a standalone fund that is 
a light or moderate user of derivatives may choose to comply with the 
proposed rule by implementing a less automated system, and thus be more 
likely to incur costs closer to the low-end of the estimated range of 
costs. We anticipate that if there is demand to develop systems and 
tools related to the risk-based portfolio limitation, market 
participants (or other third parties) may develop programs and 
applications that a fund could purchase at a cost likely less than our 
estimated cost to develop the programs and applications internally.
    Staff also estimates that each fund would incur ongoing costs 
related to implementing a VaR test under proposed rule 18f-4. Staff 
estimates that such costs would range from 20% to 30% of the one-time 
costs discussed above.\586\ Thus, staff estimates that a fund would 
incur ongoing annual costs associated with the VaR test aspect of the 
risk-based exposure limit that would range from $12,000 to 
$54,000.\587\ These costs are attributable to the following activities, 
as applicable to each fund: (1) Complying with the VaR test (i.e., 
that, immediately after entering into any senior securities 
transaction, the fund's full portfolio VaR is less than the fund's 
securities VaR); (2) systems maintenance; and (3) additional staff 
training.
---------------------------------------------------------------------------

    \586\ See supra notes 570 and 574.
    \587\ This estimate is based on the following calculations: 0.20 
x $60,000 = $12,000; 0.30 x $180,000 = $54,000.
---------------------------------------------------------------------------

    DERA staff analysis shows that approximately 4% of all funds 
sampled had aggregate exposure of 150% or more of net assets.\588\ We 
estimate, therefore, that 4% of funds (479 funds \589\) may seek to 
comply with the risk-based portfolio limit.\590\ As with the other 
quantified costs we discuss in this Release, we believe that many funds 
belong to a fund complex and are likely to experience economies of 
scale. We therefore expect that the lower-end of the estimated range of 
costs ($60,000 in one-time costs; $12,000 in annual costs) better 
reflects the total costs likely to be incurred by many funds.
---------------------------------------------------------------------------

    \588\ DERA White Paper, supra note 73, Figure 9.1.
    \589\ This estimate is based on the following calculation: 
11,973 funds x 4% = 479 funds. See also supra note 578.
    \590\ We recognize, however, that it is possible that some (or 
all) of these funds may decide, after evaluating the particularized 
costs and benefits, to reduce (or even eliminate) their use of such 
transactions and therefore rely on the 150% exposure-based portfolio 
limitation, or not rely on proposed rule 18f-4 at all. We discuss 
these potential effects on efficiency, competition, and capital 
formation above. See supra section IV.C.

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[[Page 80967]]

3. Asset Segregation
a. Requirements
    As discussed above in section III.C, the proposed rule would 
require a fund that seeks to enter into derivatives transactions to 
manage the risks associated with its derivatives transactions by 
maintaining an amount of certain assets, defined in the proposed rule 
as ``qualifying coverage assets,'' designed to enable the fund to meet 
its obligations under such transactions. To satisfy this requirement 
the fund would be required to maintain qualifying coverage assets to 
cover the fund's mark-to-market obligations under a derivatives 
transaction (the ``mark-to-market coverage amount,'' as noted above), 
as well as an additional amount, determined in accordance with policies 
and procedures approved by the fund's board, designed to address 
potential future losses and resulting payment obligations under the 
derivatives transaction (the ``risk-based coverage amount,'' as noted 
above).
b. Benefits
    The proposed asset segregation will likely improve a fund's ability 
to meet its obligations under its derivatives transactions. The 
proposed rule's requirement that the fund maintain qualifying coverage 
assets with a value equal to the fund's mark-to-market coverage amount 
is designed to require the fund to have assets sufficient to meet its 
obligations under the derivatives transaction, which may include margin 
or similar payments demanded by the fund's counterparty as a result of 
mark-to-market losses, or payments that the fund may make in order to 
exit the transaction. The proposed rule's requirement that the fund 
maintain qualifying coverage assets with a value equal to the fund's 
risk-based coverage amount is designed to require the fund to have 
qualifying coverage assets to cover future losses and any resulting 
future payment obligations.\591\ These aspects of the proposed rule's 
asset segregation requirements for derivatives transactions are 
consistent with suggestions of many commenters on the Concept Release, 
including a commenter that observed that requiring funds to segregate a 
mark-to-market amount under the contract as well as an additional 
amount meant to cover future losses ``is more akin to the way portfolio 
managers and risk officers assess the portfolio risks created through 
the use of derivatives.'' \592\
---------------------------------------------------------------------------

    \591\ In addition, the asset segregation requirement in the 
proposed rule would limit a fund's derivatives exposure to the 
extent that the fund limits its derivatives usage in order to comply 
with the asset segregation requirements. See supra note 323 and 
accompanying text.
    \592\ See ICI Concept Release Comment Letter.
---------------------------------------------------------------------------

    By requiring a fund to determine its risk-based coverage amounts in 
accordance with board-approved policies and procedures, the proposed 
rule's approach to asset segregation is designed to provide a flexible 
framework that would allow funds to apply the requirements of the 
proposed rule to particular derivatives transactions used by funds at 
this time as well as those that may be developed in the future as 
financial instruments and investment strategies change over time.
    In addition, the proposed asset segregation requirements may 
benefit investors by eliminating the existing practice by some funds 
(under existing staff guidance) to segregate for certain derivatives 
transactions (e.g., derivatives that permit physical settlement), the 
notional amount. As we noted above, the notional amount of a 
derivatives transaction does not necessarily equal, and often will 
exceed, the amount of cash or other assets that a fund ultimately would 
likely be required to pay or deliver under the derivatives transaction. 
Existing staff guidance contemplates that a fund will segregate assets 
equal to a derivative's full notional amount for certain derivatives 
and the derivative's daily mark-to-market liability for others. The 
proposed rule would benefit investors by requiring funds to evaluate 
their obligations under a derivatives transaction--including by 
considering future potential payment obligations represented by the 
derivative's risk-based coverage amount--rather than segregating assets 
equal to either a derivative's notional value or a mark-to-market 
liability based solely on the type of derivative involved, as under the 
current approach.
    The proposed rule generally would require a fund to segregate cash 
and cash equivalents as qualifying coverage assets in respect of its 
coverage obligations for its derivatives transactions. To the extent 
that a fund currently posts collateral to counterparties for 
derivatives transactions,\593\ the fund's mark-to-market coverage 
amount would be reduced by the value of the posted assets that 
represent variation margin, and the fund's risk-based coverage amount 
would be reduced by the value of the posted assets that represent 
initial margin, mitigating the need for the fund to segregate 
additional cash and cash equivalents. We believe that cash equivalents 
are an appropriate component of qualifying coverage assets for 
derivatives transactions because these securities usually settle within 
one day \594\ and do not generally fluctuate in value with market 
conditions.\595\ Therefore, cash and cash equivalents are readily 
available to support derivatives positions should the need for 
additional funding arise at short notice, for example due to margin 
calls, without a fund having to unwind such positions.\596\ The 
immediacy of funding needs for derivatives transactions may mean that 
other types of assets commonly used for short-term needs (such as 
meeting fund redemption requests which can take three days to settle 
when redeemed through a broker-dealer \597\) would be insufficiently 
liquid to meet the fund's obligations under a derivatives contract. 
Furthermore, we understand that cash and cash equivalents are commonly 
used for posting collateral or margin for derivatives 
transactions.\598\
---------------------------------------------------------------------------

    \593\ See, e.g., ISDA Margin Survey 2015, supra note 370.
    \594\ See, e.g., http://www.sec.gov/answers/tplus3.htm.
    \595\ This is in contrast to funds' segregating any liquid asset 
under existing staff guidance, which may increase the likelihood 
that a fund's segregated assets decline in value at the same time 
the fund experiences losses on the derivatives transaction.
    \596\ We recognize that requiring funds generally to maintain 
cash and cash equivalents may have other associated effects. We 
discuss these potential effects above in section IV.C.
    \597\ Open-end funds that are redeemed through broker-dealers 
must meet redemption requests within three business days because 
broker-dealers are subject to rule 15c6-1 under the Securities 
Exchange Act of 1934. See Liquidity Release, supra note 5, at n.21.
    \598\ See the discussion of the ISDA margin Survey 2015 in 
footnote 370.
---------------------------------------------------------------------------

    For all of these reasons, we believe that the proposed asset 
segregation requirements should more effectively result in a fund 
having sufficient assets to meet its obligations under its derivatives 
transactions. By requiring the fund to maintain qualifying coverage 
assets--generally cash equivalents--sufficient to cover the fund's 
current mark-to-market obligation and an additional amount designed to 
address future losses, the proposed rule is designed to reduce the risk 
that the fund would be required to sell portfolio assets in order to 
generate assets to satisfy the fund's derivatives payment obligations, 
particularly in an environment where those assets may have experienced 
a temporary decline in value, thereby magnifying the fund's losses on 
the forced sale. In addition to the benefit to investors, as discussed 
above, counterparties to the derivatives transactions may benefit from 
an

[[Page 80968]]

increased expectation of repayment given the higher quality of assets 
that are set aside for the funds' performance of their contractual 
obligations. The proposed asset segregation requirements may also 
provide a number of additional positive effects on efficiency, 
competition, and capital formation as discussed above in section IV.C.
c. Quantified Costs
    As with the quantified costs we discuss above regarding the 
exposure-based and risk-based portfolio limits (section III.B.1), we 
expect that funds would incur one-time and ongoing operational costs to 
establish and implement systems in order to comply with the proposed 
asset segregation requirements. As discussed above, and pursuant to 
existing Commission statements and staff guidance, two general 
practices have developed: the notional amount segregation approach and 
the mark-to-market segregation approach. Also as discussed above, funds 
today are determining their current mark-to-market losses, if any, each 
business day with respect to the derivatives for which they currently 
segregate assets on a mark-to-market basis, and funds also already 
calculate their liability under derivatives transactions on a daily 
basis for various other purposes, including to satisfy variation margin 
requirements and to determine the fund's NAV. We believe that funds 
that currently calculate their liability under their derivatives 
transactions on a daily basis would likely calculate the proposed mark-
to-market coverage amount in the same manner, and therefore would not 
likely incur significant new costs when calculating the fund's mark-to-
market coverage amount under the proposed rule.\599\
---------------------------------------------------------------------------

    \599\ See supra section III.C.1.a (noting that funds already 
calculate their liability under derivatives transactions on a daily 
basis for other purposes, including to satisfy variation margin 
requirements, and to determine the fund's NAV). We discuss below in 
section IV.D.5, the estimated costs for the proposed asset 
segregation requirements for a fund that enters solely into 
financial commitment transactions.
---------------------------------------------------------------------------

    The risk-based coverage amount would be determined in accordance 
with policies and procedures approved by the fund's board that are 
required to take into account certain factors specified in the proposed 
rule. By requiring funds to establish appropriate policies and 
procedures, rather than prescribing specific segregation amounts or 
methodologies, the proposed rule is designed to allow funds to assess 
and determine risk-based coverage amounts based on their specific 
derivatives transactions, investment strategies and associated risks. 
As a result, we expect that, for funds that are significant users of 
derivatives, these funds may already use VaR or other risk-management 
tools to manage associated risks, and may be able to reduce costs by 
using these tools to calculate the risk-based coverage amount. We 
therefore anticipate that the relative costs to a particular fund are 
likely to vary, depending on the extent to which a fund enters into 
derivatives transactions and the level of sophistication of a fund's 
risk management processes surrounding its use of derivatives. These 
costs will directly impact funds (and may indirectly impact fund 
investors if a fund's adviser incurs costs and passes along its costs 
to investors through increased fees).
    Our staff estimates that the one-time operational costs necessary 
to establish and implement the proposed asset segregation requirements 
would range from $25,000 to $75,000 \600\ per fund, depending on the 
particular facts and circumstances and current derivatives risk 
management practices of the fund. These estimated costs are 
attributable to the following activities: (1) Developing and 
implementing policies and procedures to comply with the proposed rule's 
requirement that, at least once each business day, the fund maintains 
the required qualifying coverage assets in respect of its derivatives 
transactions; (2) planning, coding, testing, and installing any system 
modifications relating to the asset segregation requirements; and (3) 
preparing training materials and administering training sessions for 
staff in affected areas.
---------------------------------------------------------------------------

    \600\ See supra note 570.
---------------------------------------------------------------------------

    As we discussed above, a fund that is part of a fund complex would 
likely benefit from economies of scale and incur costs closer to the 
low-end of the estimated range of costs, while a standalone fund is 
more likely to incur costs closer to the higher-end of the estimated 
range of costs. Our staff also estimates that a standalone fund that is 
a light or moderate user of derivatives may choose to comply with the 
proposed rule by implementing a less automated system, and thus be more 
likely to incur costs closer to the low-end of the estimated range of 
costs. We anticipate that if there is demand to develop systems and 
tools related to the asset segregation requirements, market 
participants (or other third parties) may develop programs and 
applications that a fund could purchase at a cost likely less than our 
estimated cost to develop the programs and applications internally.
    Staff also estimates that each fund would incur ongoing costs 
related to implementing the asset segregation requirements under 
proposed rule 18f-4. Staff estimates that such costs would range from 
65% to 75% of the one-time costs discussed above.\601\ Thus, staff 
estimates that a fund would incur ongoing annual costs associated with 
the asset segregation requirements that would range from $16,250 to 
$56,250.\602\ These costs are attributable to the following activities: 
(1) At least once each business day, the fund verifies that it 
maintains the required qualifying coverage assets in respect of its 
derivatives transactions; (2) systems maintenance; and (3) additional 
staff training.
---------------------------------------------------------------------------

    \601\ In estimating the total quantified costs of our proposed 
rule, we estimate that the asset segregation requirements (as 
compared with the portfolio limitation requirements) would likely 
impose ongoing costs that are proportionately larger than initial 
costs (e.g., because of the need to determine and identify 
qualifying coverage assets each business day). Accordingly, and 
based on staff experience and outreach, we estimate that these 
ongoing costs would range from 65% to 75% of the initial costs. See 
supra notes 570 and 574.
    \602\ This estimate is based on the following calculations: 0.65 
x $25,000 = $16,250; 0.75 x $75,000 = $56,250.
---------------------------------------------------------------------------

    As discussed above in section IV.D.1, in the DERA staff analysis, 
68% of all of the sampled funds did not have any exposure to 
derivatives transactions. These funds thus do not appear to use 
derivatives transactions or, if they do use them, do not appear to do 
so to a material extent. Staff estimates that the remaining 32% of 
funds (3,831 funds \603\) would seek to rely on the proposed rule, and 
therefore comply with the rule's asset segregation requirements. As 
with the other quantified costs we discuss in this Release, we believe 
that many funds belong to a fund complex and are likely to experience 
economies of scale. We therefore expect that the lower-end of the 
estimated range of costs ($25,000 in one-time costs; $16,250 in annual 
costs) better reflects the total costs likely to be incurred by many 
funds.
---------------------------------------------------------------------------

    \603\ This estimate is based on the following calculation: 
11,973 funds x 32% = 3,831 funds. See supra note 578.
---------------------------------------------------------------------------

    The proposed asset segregation requirements may also impose 
indirect costs, such as the potential reduction in fund returns that 
could result if funds are required to segregate cash and cash 
equivalents, rather than potentially higher-yielding liquid assets 
(such as equities, as permitted under existing staff guidance). We are 
unable to quantify this cost because we do not have sufficient data 
with respect to the nature and extent to which funds segregate assets 
under existing staff

[[Page 80969]]

guidance, or sufficient data to determine the amount of the reduction 
in return under the proposed rule. However, because the proposed rule 
would permit a fund to reduce its mark-to-market and risk-based 
coverage amounts by the value of assets that represent variation margin 
and initial margin, respectively, such costs are likely mitigated. In 
this regard we note that this treatment does not only apply to cash and 
cash equivalents, but extends to any asset considered satisfactory as 
collateral by a counterparty. Therefore, funds retain the flexibility 
to optimize their collateral management and post their most cost-
efficient collateral, subject to limitations that counterparties or 
other regulatory requirements may impose on the quality of acceptable 
collateral.\604\ We also do not know if, or the extent to which, funds 
might instead shift to investments other than derivatives transactions 
(or financial commitment transactions) that would not be subject to the 
proposed rule, including the rule's asset segregation requirements. 
Finally, we do not know the specific manner in which funds' policies 
and procedures would provide for the determination of risk-based 
coverage amounts, and thus do not know the amount funds would segregate 
under the proposed rule to cover the risk-based coverage amounts. For 
these reasons, we are unable to quantify the impact of these potential 
indirect costs.
---------------------------------------------------------------------------

    \604\ For example, as discussed above, ISDA reported in a 2015 
survey that cash represented 77% of collateral received for 
uncleared derivatives transactions (with government securities 
representing an additional 13% percent), while for cleared OTC 
transactions with clients, cash represented 59% of initial margin 
received (with government securities representing an additional 39%) 
and 100% of variation margin received. See supra note 370.
---------------------------------------------------------------------------

4. Risk Management Program
a. Requirements
    As discussed above in section III.D, a fund that seeks to enter 
into derivatives transactions and rely on proposed rule 18f-4, except 
with respect to funds that engage in only a limited amount of 
derivatives transactions and that do not enter into certain complex 
derivatives transactions, would be required to establish a formalized 
derivatives risk management program, including the appointment of a 
derivatives risk manager.
b. Benefits
    The proposed derivatives risk management program is designed to 
complement the proposed rule's portfolio limitations and asset 
segregation requirements by requiring that a fund subject to the 
requirement assess and manage the particular risks presented by the 
fund's use of derivatives. The derivatives risk management program 
would not apply, however, to funds that make only limited use of 
derivatives and do not use complex derivatives because we expect that 
the risks and potential impact of these funds' derivatives transactions 
may not be as significant in comparison to the risks of the funds' 
overall investment portfolios and may be appropriately addressed by the 
proposed rule's other requirements, including the requirement to 
determine risk-based coverage amounts. The proposed rule, therefore, 
provides a tailored approach that we expect would benefit funds and 
investors by requiring funds that use derivatives more substantially to 
establish derivatives risk management programs while allowing certain 
funds to continue using derivatives (as deemed appropriate by a fund) 
to help implement the fund's strategy without first having to establish 
a derivatives risk management program under the proposed rule, provided 
such use is limited.\605\
---------------------------------------------------------------------------

    \605\ A fund that limits its derivatives exposure to no greater 
than 50% of the value of the fund's net assets, and that does not 
use ``complex derivatives transactions,'' would not be required to 
adopt and implement a derivatives risk management program. See rule 
18f-4(a)(3).
---------------------------------------------------------------------------

    The proposed derivatives risk management program requirement aims 
to promote a minimum baseline in the fund industry with regard to the 
use of derivatives transactions, and should improve funds' management 
of the risks related to a fund's use of derivatives as well as the 
awareness of, and oversight by, the fund's board (through the proposed 
rule's derivatives risk manager's reporting). In this regard we 
recognize that the benefits a particular fund and its investors would 
enjoy and the costs that it would incur in establishing a derivatives 
risk management program would vary depending on the particular fund's 
current practices. We believe that the proposed rule's promotion of a 
standardized level of risk management in the fund industry, however, 
would promote investor protection by elevating the overall quality of 
derivatives risk management across the fund industry. Improved quality 
of risk management related to funds' use of derivatives, may, for 
example, reduce the possibility of fund losses attributable to leverage 
and other risks related to the use of derivatives.
    Investors should have increased confidence, for example, that a 
fund that states that it uses derivatives as part of achieving its 
investment strategy does so in ways that comply with regulatory 
requirements, and are consistent with the fund's own stated investment 
objectives, policies, and risk profile. Monitoring of the risks related 
to derivatives may also help protect investors from losses stemming 
from derivatives. To the extent that the derivatives risk management 
program results in more robust monitoring of the risks related to 
derivatives (including leverage risks that may magnify losses resulting 
from negative market movements), the derivatives risk management 
program may reduce the risk of a fund suffering unexpected losses. 
This, in turn, may reduce adverse repercussions for other market 
participants, including fund counterparties, and reduce the risk of 
potential forced sales which can create or exacerbate stress on other 
market participants. We also expect that the derivatives risk 
management program (including its recordkeeping requirements) should 
also improve the ability of the Commission, through its examination 
program, to evaluate the risks incurred by funds with respect to their 
derivatives transactions and how funds manage those risks.
c. Quantified Costs
    In addition to the costs discussed above regarding the exposure-
based and risk-based portfolio limitations and asset segregation 
requirements, certain funds would also incur one-time costs to 
establish and implement a derivatives risk management program in 
compliance with proposed rule 18f-4, as well as ongoing program-related 
costs. As discussed above, funds today employ a range of different 
practices, with varying levels of comprehensiveness and sophistication, 
for managing the risks associated with their use of derivatives. 
Certain elements of the derivatives risk management program may entail 
variability in related compliance costs, depending on a fund's 
particular circumstances, including the fund's investment strategy, and 
nature and type of derivatives transactions used by a fund.
    As discussed in section II.D, we understand that the advisers to 
many funds whose investment strategies entail the use of derivatives 
already assess and manage the risks associated with their derivatives 
transactions. Funds whose current practices closely align with the 
proposed derivatives risk management program would incur relatively 
lower costs to comply with proposed rule 18f-4. Funds whose practices 
regarding derivatives risk management are less comprehensive or not 
closely aligned

[[Page 80970]]

with the risk management requirements in the proposed rule, on the 
other hand, may incur relatively higher initial compliance costs. The 
nature and extent of a fund's use of derivatives also may affect the 
level of costs (and benefits) that the fund would incur. A fund that 
uses derivatives more extensively may incur relatively greater costs in 
in establishing a risk management program reasonably designed to assess 
and manage the risk associated with the fund's derivatives, 
particularly if the fund engages in complex derivatives transactions. A 
fund that engages in derivatives to a lesser extent, or that uses fewer 
complex derivatives transactions, may incur lower costs. In any case, 
the costs associated with a fund's risk management program would 
directly impact funds (and may indirectly impact fund investors if a 
fund's adviser incurs costs and passes along its costs to investors 
through increased fees).
    Our staff estimates that the one-time costs necessary to establish 
and implement a derivatives risk management program would range from 
$65,000 to $500,000 \606\ per fund, depending on the particular facts 
and circumstances and current derivatives risk management practices of 
the fund. These estimated costs are attributable to the following 
activities: (1) Developing policies and procedures relating to each of 
the required program elements and administration of the program 
(including the designation of a derivatives risk manager); (2) 
integrating and implementing the policies and procedures described 
above; and (3) preparing training materials and administering training 
sessions for staff in affected areas.
---------------------------------------------------------------------------

    \606\ See supra note 570. We note that some funds, and in 
particular smaller funds for example, may not have appropriate 
existing personnel capable of fulfilling the responsibilities of the 
proposed derivatives risk manager, or may choose to hire a new 
employee to act as the derivatives risk manager rather than 
assigning that responsibility to a current employee or officer of 
the fund or the fund's investment adviser who is not a portfolio 
manager. We would expect that a fund that is required to hire a new 
derivatives risk manager would likely incur costs on the higher end 
of our estimated range of costs.
---------------------------------------------------------------------------

    Staff estimates that each fund would incur ongoing program-related 
costs, as a result of proposed rule 18f-4, that range from 65% to 75% 
of the one-time costs necessary to establish and implement a 
derivatives risk management program.\607\ Thus, staff estimates that a 
fund would incur ongoing annual costs associated with proposed rule 
18f-4 that would range from $42,250 to $375,000.\608\ These costs are 
attributable to the following activities: (1) Assessing, monitoring, 
and managing the risks associated with the fund's derivatives 
transactions; (2) reviewing and updating periodically any models 
(including VaR models), measurement tools, or policies and procedures 
that are a part of, or used in, the program to evaluate their 
effectiveness and reflect changes in risks over time; (3) providing 
written reports to the fund's board, no less frequently than quarterly, 
describing the adequacy of the fund's program and the effectiveness of 
its implementation; and (4) additional staff training.
---------------------------------------------------------------------------

    \607\ In estimating the total quantified costs of our proposed 
rule, we estimate that the derivatives risk management program 
requirements, similar to the asset segregation requirements, would 
likely impose ongoing costs that are proportionately larger than 
initial costs. Accordingly, and based on staff experience and 
outreach, we estimate that these ongoing costs would range from 65% 
to 75% of the initial costs. See supra note 601.
    \608\ This estimate is based on the following calculations: 0.65 
x $65,000 = $42,250; 0.75 x $500,000 = $375,000.
---------------------------------------------------------------------------

    Under the proposed rule, a fund that limits its derivatives 
exposure to 50% or less of net assets (and does not enter into complex 
derivatives transactions) would not be required to establish a 
derivatives risk management program.\609\ In the DERA staff analysis, 
approximately 10% of all sampled funds had aggregate exposure from 
derivatives transactions exceeding 50% of net assets.\610\ An 
additional approximately 4% of the funds in DERA's sample had aggregate 
exposure from derivatives of between 25-50% of net assets.\611\ In 
light of this, Commission staff estimates that approximately 14% of 
funds (1,676 funds \612\) would establish a derivatives risk management 
program. As with the other quantified costs we discuss in this Release, 
we believe that many funds belong to a fund complex and are likely to 
experience economies of scale. We therefore expect that the lower-end 
of the estimated range of costs ($65,000 in one-time costs; $42,250 in 
annual costs) better reflects the total costs likely to be incurred by 
many funds.
---------------------------------------------------------------------------

    \609\ A fund would be required to measure its aggregate exposure 
associated with its derivatives transactions immediately after 
entering into any senior securities transaction. See rule 18f-
4(a)(3)(i). Funds that use complex derivatives transactions, as 
defined in the proposed rule, also would be required to establish 
risk management programs, even if the funds' derivatives exposure 
was less than 50% of net assets. The proposed rule's definition of 
complex derivatives transactions is based on whether the amount 
payable by either party to a derivatives transaction is dependent on 
the value of the underlying reference asset at multiple points in 
time during the term of the transaction, or is a non-linear function 
of the value of the underlying reference asset, other than due to 
the optionality arising from a single strike price. See rules 18f-
4(a)(4)(ii); 18f-4(c)(1).
    \610\ See DERA White Paper, supra note 73, Figure 11.1. DERA 
staff was unable to determine the extent to which funds use 
derivatives transactions that would be complex derivatives 
transactions, based on the data available to the staff. The staff is 
thus unable to estimate the number of funds that would be required 
to have a risk management program solely as a result of their use of 
complex derivatives transactions. See supra note 609.
    \611\ See DERA White Paper, supra note 73, Figure 11.1.
    \612\ This estimate is based on the following calculation: 
11,973 funds x 14% = 1,676 funds. See supra note 578.
---------------------------------------------------------------------------

5. Financial Commitment Transactions
a. Requirements
    As discussed above in section III.E, the proposed rule would 
require a fund that enters into financial commitment transactions in 
reliance on the rule to maintain qualifying coverage assets, identified 
on the books and records of the fund and determined at least once each 
business day, with a value equal to the fund's aggregate financial 
commitment obligations, which generally are the amounts of cash or 
other assets that the fund is conditionally or unconditionally 
obligated to pay or deliver under its financial commitment 
transactions. The proposed rule would permit a fund to maintain as 
qualifying assets for a financial commitment transaction assets that 
are convertible to cash or that will generate cash, equal in amount to 
the financial commitment obligation, prior to the date on which the 
fund can be expected to be required to pay such obligation or that have 
been pledged with respect to the financial commitment obligation and 
can be expected to satisfy such obligation, determined in accordance 
with policies and procedures approved by the fund's board of directors.
b. Benefits
    By requiring the fund to maintain qualifying coverage assets to 
cover the fund's full potential obligation under its financial 
commitment transactions, the proposed rule generally would take the 
same approach to these transactions that we applied in Release 10666, 
with some modifications (primarily to the types of segregated assets 
that would be permitted under the proposed rule). The proposed rule 
would limit a fund's obligations under financial commitment 
transactions, in that the fund could not incur obligations under those 
transactions in excess of the fund's qualifying coverage assets. This 
would limit a fund's ability to incur obligations under financial 
commitment transactions to 100% of the fund's net

[[Page 80971]]

assets, as discussed above in section III.E. As noted above, funds that 
enter into financial commitment transactions today in reliance on 
Release 10666 also do not incur obligations in excess of net 
assets,\613\ and no fund in the DERA sample had greater than 100% 
aggregate exposure resulting from financial commitment transactions 
(the current economic baseline for such transactions).\614\ As 
discussed above in section IV.C, we expect that proposed rule 18f-4 
would permit a fund that enters solely into financial commitment 
transactions to operate much in the same way as it does today.
---------------------------------------------------------------------------

    \613\ See supra note 93 and accompanying text.
    \614\ DERA White Paper, supra note 73, Table 6.
---------------------------------------------------------------------------

c. Quantified Costs
    We estimate above in section IV.D.3 the potential costs of the 
asset segregation requirement for funds that enter into derivatives 
transactions. We estimated that the potential costs would include: (1) 
Developing and implementing policies and procedures to comply with the 
proposed rule's requirement that the fund maintains the required 
qualifying coverage assets, identified on the books and records of the 
fund and determined at least once each business day; (2) planning, 
coding, testing, and installing any system modifications relating to 
the asset segregation requirements; and (3) preparing training 
materials and administering training sessions for staff in affected 
areas. A fund that enters solely into financial commitment transactions 
would similarly have an asset segregation requirement.
    Although, as discussed above in section III.E, the amount and 
nature of ``qualifying coverage assets'' required differ with regard to 
derivatives transactions and financial commitment transactions, we 
believe that the operational costs to implement the asset segregation 
requirements would be the same. For both derivatives transactions and 
financial commitment transactions, funds would be required to establish 
policies and procedures regarding qualifying coverage assets, and in 
both cases funds would be required to assess their obligations under 
the transactions. For financial commitment transactions, a fund would 
be required to maintain assets that are convertible to cash or that 
will generate cash, equal in amount to the financial commitment 
obligation, prior to the date on which the fund can be expected to be 
required to pay its financial commitment obligation or that have been 
pledged with respect to the financial commitment obligation and can be 
expected to satisfy such obligation, determined in accordance with 
policies and procedures approved by the fund's board of directors. For 
derivatives transactions, funds would be required to determine, in 
addition to a mark-to-market coverage amount, the transaction's risk-
based coverage amount, which would represent an estimate of the 
potential amount payable by the fund if the fund were to exit the 
derivatives transaction under stressed conditions, determined in 
accordance with policies and procedures approved by the fund's board. 
Although the required assessments would differ for derivatives 
transactions and financial commitment transactions, we expect that 
there would be no material difference in the activities involved (e.g., 
developing and implementing policies and procedures, and modifying 
systems, to comply with the proposed rule's requirement that the fund 
maintains the required qualifying coverage assets), and thus no 
material difference in the associated costs.
    Accordingly, we estimate that the one-time operational costs 
necessary to establish and implement the proposed asset segregation 
requirements would range from $25,000 to $75,000 per fund.\615\ Staff 
also estimates that each fund would incur ongoing costs related to 
implementing the asset segregation requirements under proposed rule 
18f-4. Staff estimates that such costs would range from 65% to 75% of 
the one-time costs discussed above.\616\ Thus, staff estimates that a 
fund would incur ongoing annual costs associated with the asset 
segregation requirements that would range from $16,250 to $56,250.\617\ 
In the DERA staff analysis, approximately 3% of all sampled funds 
entered into at least some financial commitment transactions, but had 
no exposure from derivatives transactions.\618\ Staff estimates, 
therefore, that 3% of funds (359 funds \619\) would comply with the 
asset segregation requirements in proposed rule 18f-4 (applicable to 
financial commitment transactions). The above estimate of affected 
funds does not include money market funds or BDCs. We understand, 
however, that both money market funds and BDCS may engage in certain 
types of financial commitment transactions.\620\ Therefore, we estimate 
that 537 money market funds and 88 BDCs would also comply with the 
asset segregation requirements in proposed rule 18f-4 (applicable to 
financial commitment transactions).\621\ As with the other quantified 
costs we discuss in this Release, we believe that many funds belong to 
a fund complex and are likely to experience economies of scale. We 
therefore expect that the lower-end of the estimated range of costs 
($25,000 in one-time costs; $16,250 in annual costs) better reflects 
the total costs likely to be incurred by many funds.
---------------------------------------------------------------------------

    \615\ See supra note 600.
    \616\ See supra note 601.
    \617\ This estimate is based on the following calculations: 0.65 
x $25,000 = $16,250; 0.75 x $75,000 = $56,250.
    \618\ We address a fund that invests in both derivatives 
transactions and financial commitment transactions in section 
IV.D.3.
    \619\ This estimate is based on the following calculation: 
11,973 funds x 3% = 359 funds. See supra note 578.
    \620\ See supra note 578.
    \621\ See supra note 512 and accompanying text.
---------------------------------------------------------------------------

6. Amendments to Form N-PORT To Report Risk Metrics by Funds That Are 
Required To Implement a Derivatives Risk Management Program
a. Requirements
    As discussed above in section III.G.2, proposed Form N-PORT would 
require funds that are required to implement a derivatives risk 
management program to disclose vega and gamma, risk metrics information 
that is not currently required by the Commission. As we previously 
stated, we believe that requiring certain funds to report vega and 
gamma would assist the Commission in better assessing the risk in a 
fund's portfolio. In consideration of the burdens of reporting selected 
risk metrics to the Commission and the benefits of more complete 
disclosure of a fund's risks, we are proposing to limit the reporting 
of vega and gamma to only those funds that are required to implement a 
derivatives risk management program.
    The current set of requirements under which registered management 
investment companies (other than money market funds and SBICs) and ETFs 
organized as UITs publicly report complete portfolio investment 
information to the Commission on a quarterly basis, as well as the 
current practice of some investment companies to voluntarily disclose 
portfolio investment information, is the baseline from which we will 
discuss the economic effects of vega and gamma disclosure. The baseline 
is the same baseline from which we discussed the economic effects of 
Form N-PORT in the Investment Company Reporting Modernization 
Release.\622\
---------------------------------------------------------------------------

    \622\ See Investment Company Reporting Modernization Release, 
supra note 138, at section IV.B.a.

---------------------------------------------------------------------------

[[Page 80972]]

b. Benefits
    The benefits of requiring certain funds to report vega and gamma on 
Form N-PORT are largely the same benefits as those identified in the 
Investment Company Reporting Modernization Release.\623\ As discussed 
in that release, the information we would receive on Form N-PORT would 
facilitate the oversight of funds and would assist the Commission to 
better effectuate its mission to protect investors, maintain fair, 
orderly, and efficient markets, and facilitate capital formation. For 
example, as we discussed in the Release, risk sensitivity measures 
improve the ability of Commission staff to efficiently analyze 
information for funds (such as a fund's exposure to changes in price 
and volatility) and identify funds with certain risk exposures that 
appear to be outliers among peer funds. Moreover, the information we 
would receive on Form N-PORT would improve the Commission's ability to 
analyze fund industry trends, monitor funds, and, as appropriate, 
engage in further inquiry or timely outreach in case of a market or 
other event. In particular, requiring certain funds to report vega and 
gamma on Form N-PORT could improve the Commission's ability to analyze 
funds' exposures to volatility and to their exposures to more sizable 
changes in the value of a derivative's reference security. These 
measures could be used in considering whether additional guidance or 
policy measures may be appropriate. The calculation of position-level 
risk-measures for some derivatives, including derivatives with unique 
or complicated payoff structures, sometimes requires time-intensive 
computation methods or additional information that Form N-PORT as 
proposed, would not require. In addition, the calculation of a second-
order derivative, such as gamma, can be more computationally intensive 
than the calculation of a first-order derivative, such as delta and may 
require additional modelling. As discussed in section III. G. above, we 
believe that many of the funds that would be required to implement a 
derivatives risk management program already calculate risk measures 
such as gamma and vega as part of their portfolio management programs 
or have gamma and vega calculated for them by a service provider. 
Accordingly, we believe that requiring funds to calculate second-order 
derivatives, such as gamma, and provide risk measures for derivatives, 
such as vega, at the position-level, would improve the ability of staff 
to efficiently identify risk exposures of funds regardless of the types 
of derivatives.
---------------------------------------------------------------------------

    \623\ See Investment Company Reporting Modernization Release, 
supra note 138, at section IV.B.b.
---------------------------------------------------------------------------

    The benefits of requiring certain funds to report vega and gamma on 
Form N-PORT would also benefit investors, to the extent that they use 
the information, to better differentiate investment companies based on 
their investment strategies. In general, we expect that institutional 
investors and other market participants would directly use the 
information from Form N-PORT more so than individual investors. 
Individual investors, however, could indirectly benefit from the 
information in Form N-PORT to the extent that third-party information 
providers and other interested parties are able to report on the 
information and other entities utilize the information to help 
investors make more informed investment decisions. An increase in the 
ability of investors to differentiate investment companies would allow 
investors to efficiently allocate capital across reporting funds more 
in line with their risk preferences, increase the competition among 
funds for investor capital, and could promote capital formation.
c. Costs
    As we discussed in the Investment Company Reporting Modernization 
Release, to the extent that risk metrics are not currently contained in 
fund accounting or financial reporting systems, funds would bear one-
time costs to update systems to adhere to the new filing 
requirements.\624\ The one-time costs would depend on the extent to 
which investment companies currently report the information required to 
be disclosed. The one-time costs would also depend on whether an 
investment company would need to implement new systems, such as to 
calculate and report vega and gamma, and to integrate information 
maintained in separate internal systems or by third parties to comply 
with the new requirements. Based on staff outreach to funds, we believe 
that, at a minimum, funds would incur systems or licensing costs to 
obtain a software solution or to retain a service provider in order to 
report data on risk metrics, as risk metrics are not currently required 
to be reported on fund financial statements. Our experience with and 
outreach to funds indicates that the types of systems funds use for 
warehousing and aggregating data, including data on risk metrics, vary 
widely.
---------------------------------------------------------------------------

    \624\ See Investment Company Reporting Modernization Release, 
supra note 138, at section IV.B.c.
---------------------------------------------------------------------------

    Similar to our proposal in the Investment Company Modernization 
Release,\625\ the proposed amendments to proposed Form N-PORT relating 
to vega and gamma would increase the amount and availability of public 
information about certain investment companies' portfolio positions and 
investment strategy and could potentially harm fund shareholders by 
expanding the opportunities for professional traders to exploit this 
information by engaging in predatory trading practices, such as 
``front-running,'' and ``copycatting/reverse engineering of trading 
strategies.'' \626\ These practices can reduce the returns of 
shareholders who invest in actively managed funds.\627\ These practices 
can also reduce fund profitability from developing new investment 
strategies, and therefore negatively affect innovation and impact 
competition in the fund industry.
---------------------------------------------------------------------------

    \625\ See Investment Company Reporting Modernization Release, 
supra note 138, at section II.A.4; see also Liquidity Release, supra 
note 5.
    \626\ See Investment Company Reporting Modernization Release, 
supra note 138, at n.170 and accompanying and following text.
    \627\ See Russ Wermers, The Potential Effects of More Frequent 
Portfolio Disclosure on Mutual Fund Performance, 7 Investment 
Company Institute Perspective No. 3 (June 2001), available at http://www.ici.org/pdf/per07-03.pdf.
---------------------------------------------------------------------------

    As with our proposed liquidity disclosures, we cannot currently 
predict the extent to which the proposed enhancements to funds' 
disclosures on Form N-PORT relating to risk metrics would give rise to 
front-running, predatory trading, and other activities that could be 
detrimental to a fund and its investors, and thus we are unable to 
quantify potential costs related to these activities. The costs that 
relate to the additional risk-sensitivity measures are also intertwined 
with the overall costs to funds and market participants that could 
result from the increased disclosure of currently non-public 
information associated with Form N-PORT in its entirety.\628\ For 
example, any analyses of the risk metric-related disclosure proposed to 
be required could be affected by the enhanced reporting of any other 
additional information that could more clearly reveal the investment 
strategy of reporting funds.
---------------------------------------------------------------------------

    \628\ See id., at paragraphs accompanying nn.663-673.
---------------------------------------------------------------------------

    The potential costs associated with the increased disclosure of 
currently non-public information on Form N-PORT are discussed in detail 
in our recent proposal to modernize investment company reporting,\629\ 
as

[[Page 80973]]

well as our recent proposal regarding liquidity risk-management 
programs.\630\ These proposals also discuss the ways in which we have 
endeavored to mitigate these costs, including by proposing to maintain 
the status quo for the frequency and timing of disclosure of publicly 
available portfolio information.\631\ While proposed Form N-PORT would 
be required to be filed monthly, it would be required to be disclosed 
quarterly and would not be made public until 60 days after the close of 
the period at issue. Because funds are currently required to disclose 
their portfolio investments quarterly (and this disclosure is made 
public with a 60-day lag), we believe that maintaining the status quo 
with regard to the frequency and the time lag of publicly available 
portfolio reporting would permit the Commission (as well as the fund 
industry generally) to assess the impact of the Form N-PORT filing 
requirements on the mix of information available to the public, and the 
extent to which these changes might affect the potential for predatory 
trading, before determining whether more frequent or more timely public 
disclosure would be beneficial to investors in funds.\632\
---------------------------------------------------------------------------

    \629\ See id.
    \630\ See Liquidity Release, supra note 5.
    \631\ See id., at section II.A.4 and paragraph accompanying n. 
670.
    \632\ See id.
---------------------------------------------------------------------------

d. Quantified Costs
    As further discussed below \633\ and in our Investment Company 
Modernization Release,\634\ we estimate that funds would incur certain 
annual costs associated with preparing, reviewing, and filing reports 
on Form N-PORT. The proposed amendments to proposed Form N-PORT would 
require funds that are required to implement a derivatives risk 
management program to report on Form N-PORT the vega and gamma for 
certain investments.\635\ We estimate that 1,676 funds \636\ would be 
required to file, on a monthly basis, additional information on Form N-
PORT as a result of the proposed amendments.\637\ Assuming that 35% of 
funds (587 funds) would choose to license a software solution to file 
reports on Form N-PORT in house,\638\ we estimate an upper bound on the 
initial annual costs to file the additional information associated with 
the proposed amendments for funds choosing this option of $3,352 per 
fund \639\ with annual ongoing costs of $2,991 per fund.\640\ We 
further assume that 65% of funds (1,089 funds) would choose to retain a 
third-party service provider to provide data aggregation and validation 
services as part of the preparation and filing of reports on Form N-
PORT,\641\ and we estimate an upper bound on the initial costs to file 
the additional information associated with the proposed amendments for 
funds choosing this option of $2,319 per fund \642\ with annual ongoing 
costs of $1,517 per fund.\643\
---------------------------------------------------------------------------

    \633\ See infra section V.
    \634\ See Investment Company Reporting Modernization Release, 
supra note 138, at nn.658-662 accompanying text.
    \635\ While we do not have a specific estimate of the number of 
funds that calculate gamma and vega, based on our discussions with 
members of the industry and due to the nature of those funds' 
investment strategies, we-expect that many of those funds currently 
calculate vega and gamma for its investment programs or have vega 
and gamma calculated for them by a service provider. However, we 
realize that it is possible that some funds may not calculate vega 
and gamma and our cost estimates reflect those costs as well.
    \636\ Commission staff estimates, therefore, that approximately 
14% of funds (1,676 funds) would be required to establish a 
derivatives risk management program. See supra note 612 and 
accompanying text.
    \637\ There were 8,734 open-end funds (excluding money market 
funds, and including ETFs) as of the end of 2014. See Investment 
Company Institute, 2015 Investment Company Fact Book (2015), 
available at https://www.ici.org/pdf/2015_factbook.pdf, at 177, 184.
    \638\ This assumption tracks the assumption made in the 
Investment Company Reporting Modernization Release that 35% of funds 
would choose to license a software solution to file reports on Form 
N-PORT. See Investment Company Reporting Modernization Release, 
supra note 138, at nn.658-659 and accompanying text.
    \639\ See infra note 797 and accompanying text.
    \640\ See infra note 797.
    \641\ This assumption tracks the assumptions made in the 
Investment Company Reporting Modernization Release that 65% of funds 
would choose to retain a third-party service provider to provide 
data aggregation and validation services as part of the preparation 
and filing of reports on Form N-PORT. See Investment Company 
Reporting Modernization Release, supra note 138, at nn.660-661 and 
accompanying text.
    \642\ See infra note 803 and accompanying text.
    \643\ See infra note 804 and accompanying text.
---------------------------------------------------------------------------

7. Amendments to Form N-CEN To Report Reliance on Proposed Rule 18f-4
a. Requirements
    As discussed above in section III.G.3, our amendments to proposed 
Form N-CEN would require funds to identify the portfolio limitation(s) 
on which a fund relied during the reporting period. As we stated above, 
this information would allow the Commission and others to monitor 
reliance on the exemptions under proposed rule 18f-4.
    The current set of requirements--management companies must file 
reports on Form N-SAR semi-annually \644\--is the baseline from which 
we discuss the economic effects of Form N-CEN. The parties that could 
be affected by the rescission of Form N-SAR and the introduction of 
Form N-CEN include funds that currently file reports on Form N-SAR and 
funds that would file reports on Form N-CEN; the Commission; and, other 
current and future users of fund census information including 
investors, third-party information providers, and other interested 
potential users. The baseline is the same baseline from which we 
discussed the economic effects of Form N-CEN in the Investment Company 
Reporting Modernization Release.\645\
---------------------------------------------------------------------------

    \644\ See rule 30b1-1.
    \645\ See Investment Company Reporting Modernization Release, 
supra note 138, at section IV.E.a.
---------------------------------------------------------------------------

b. Benefits
    The benefits of requiring funds to report reliance on certain 
exemptive rules, including proposed rule 18f-4, on Form N-CEN are 
largely the same benefits as those identified in the Investment Company 
Reporting Modernization Release.\646\ As we discussed in that release, 
proposed Form N-CEN would improve the quality and utility of the 
information reported to the Commission and allow Commission staff to 
better understand industry trends, inform policy, and assist with the 
Commission's examination program. Similarly, identifying the portfolio 
limitation(s) on which a fund relied during the reporting period would 
identify for the staff funds that rely on proposed rule 18f-4. As 
discussed in our recent proposal to modernize Investment Company 
reporting, the information we would receive on Form N-CEN would 
facilitate the oversight of funds and would assist the Commission to 
better effectuate its mission to protect investors, maintain fair, 
orderly, and efficient markets, and facilitate capital formation.\647\
---------------------------------------------------------------------------

    \646\ See Investment Company Reporting Modernization Release, 
supra note 138, at section IV.E.b.
    \647\ See id.
---------------------------------------------------------------------------

c. Costs
    As we discussed above, to the extent that reliance on certain 
exemptive rules is not currently contained in fund accounting or 
financial reporting systems, funds would bear one-time costs to update 
systems to adhere to the new filing requirements.\648\ The one-time 
costs would depend on the extent to which funds currently report the 
information required to be disclosed. The one-time costs would also 
depend on whether a fund would need to implement new systems in order 
to integrate information maintained in

[[Page 80974]]

separate internal systems with the new requirements.
---------------------------------------------------------------------------

    \648\ See Investment Company Reporting Modernization Release, 
supra note 138, at section IV.B.c.
---------------------------------------------------------------------------

d. Quantified Costs
    As further discussed below \649\ and in our Investment Company 
Modernization Release,\650\ we estimate that funds would incur certain 
annual costs associated with preparing, reviewing, and filing reports 
on Form N-CEN. The proposed amendments to proposed Form N CEN would 
require funds to identify the portfolio limitation(s) on which they 
relied during the reporting period.
---------------------------------------------------------------------------

    \649\ See infra section V.B.6.
    \650\ See Investment Company Reporting Modernization Release, 
supra note 138, at nn.658-662 accompanying text.
---------------------------------------------------------------------------

    In the Investment Company Modernization Reporting Release, the 
staff estimated that the Commission would receive an average of 3,146 
reports per year, based on the number of existing Form N-SAR filers, 
including 2,419 funds.\651\ We further estimated that management 
investment companies would require 33.35 annual burden hours in the 
first year \652\ and 13.35 annual burden hours in each subsequent year 
for preparing and filing reports on proposed Form N-CEN. We estimated 
that all Form N-CEN filers would have an aggregate annual expense of 
$12,395,064 for reports on Form N-CEN.\653\
---------------------------------------------------------------------------

    \651\ This estimate is based on 2,419 management companies and 
727 UITs filing reports on Form N-SAR as of Dec. 31, 2014. UITs 
would not be required to complete Item 31 of proposed Form N-CEN. 
See General Instruction A of proposed Form N-CEN.
    \652\ This estimate is based on the following calculation: 13.35 
hours for filings + 20 additional hours for the first filing = 33.35 
hours.
    \653\ This estimate is based on annual ongoing burden hour 
estimate of 32,294 burden hours for management companies (2,419 
management companies x 13.35 hours per filing) plus 6,623 burden 
hours for UITs (727 UITs x 9.11 burden hours per filing), for a 
total estimate of 38,917 burden ongoing hours. This was then 
multiplied by a blended hourly wage of $318.50 per hour, $303 per 
hour for Senior Programmers and $334 per hour for compliance 
attorneys, as we believe these employees would commonly be 
responsible for completing reports on proposed Form N-CEN ($318.50 x 
38,917 = $12,395,064.50). See Investment Company Reporting 
Modernization Release, supra note 138, at n.723 and accompanying 
text.
---------------------------------------------------------------------------

    As part of this burden, funds would be required to identify if they 
relied upon ten different rules under the Act.\654\ While the costs 
associated with collecting and documenting the requirements under 
proposed rule 18f-4 are discussed above,\655\ we believe that there are 
additional costs relating to identifying the portfolio limitation(s) on 
which a fund relied on proposed Form N-CEN. We therefore estimate that 
2,419 funds would incur an average annual hour burden of .25 hours for 
the first year to compile (including review of the information), tag, 
and electronically file the additional information in light of the 
proposed amendments, and an average annual hour burden of approximately 
.1 hours for each subsequent year's filing. We further estimate an 
upper bound on the initial costs to funds of $80 per fund \656\ with 
annual ongoing costs of $32 per fund.\657\ We do not anticipate any 
change to the total external annual costs of $1,748,637.\658\
---------------------------------------------------------------------------

    \654\ See Item 31 of Proposed Form N-CEN.
    \655\ See supra Sections IV.D.1. and IV.D.2.
    \656\ See infra note 815.
    \657\ See infra note 816.
    \658\ See infra note 821.
---------------------------------------------------------------------------

E. Reasonable Alternatives

    In formulating our proposal, we have considered various 
alternatives to the individual elements of proposed rule 18f-4. Those 
alternatives are outlined above in the sections discussing the proposed 
rule elements, and we have requested comment on these 
alternatives.\659\ The following discussion addresses significant 
alternatives to proposed rule 18f-4, which involve broader issues than 
the more granular alternatives to the individual rule elements 
discussed above in section III of this Release. First, we discuss an 
alternative approach focused on asset segregation. This approach would 
allow funds to establish their own minimum asset segregation 
requirements for derivatives transactions while taking into account a 
variety of risk measures, but would not include additional limitations 
designed to impose a limit on leverage. Second, we discuss an approach 
that would require a fund engaging in derivatives transactions to 
segregate liquid assets equal in value to the full amount of the 
potential obligations under the derivatives transactions. This approach 
would, in effect, apply the approach in Release 10666 to all types of 
derivatives. Third, we discuss the European Union provisions relating 
to UCITS funds and alternative investment funds (``AIFs'') \660\ as an 
alternative approach to our proposed rule. Fourth, we discuss whether 
it would be a reasonable alternative to rely on enhancing derivatives-
related disclosure. In addition to these discussions regarding 
alternatives to proposed rule 18f-4, we also discuss below certain 
alternatives to our proposed amendments to Proposed Form N-PORT.
---------------------------------------------------------------------------

    \659\ See supra sections III.B-III.F.
    \660\ AIFs are alternative investment funds that are marketed to 
professional investors in the European Union.
---------------------------------------------------------------------------

1. Mark-to-Market Plus ``Cushion Amount'' Alternative
    In the Concept Release we discussed an alternative approach to 
funds' current asset segregation approaches--generally, notional amount 
and mark-to-market segregation as discussed above--that was originally 
proposed in the 2010 ABA Derivatives Report. This alternative approach 
would allow individual funds to establish their own asset segregation 
standards for derivatives transactions but would not impose any 
additional requirements or overall limits on a fund's use of 
derivatives. Under this alternative, a fund would be required to adopt 
policies and procedures that would include, among other things, minimum 
asset segregation requirements for each type of derivatives instrument, 
taking into account relevant factors such as the type of derivative, 
the specific transaction, and the nature of the assets segregated 
(``Risk Adjusted Segregation Amounts''). In developing these standards, 
fund investment advisers might take into account a variety of risk 
measures, including VaR and other quantitative measures of portfolio 
risk, and would not be limited to the notional amount or mark-to-market 
standards.\661\ This alternative is similar in some ways to the 
proposed rule's asset coverage requirements for derivatives 
transactions, as discussed in section IV.D.3. The proposed rule differs 
from this alternative in that it imposes requirements in addition to 
those related to asset coverage, including overall notional amount 
limits and the requirement for certain funds to have derivatives risk 
management programs.
---------------------------------------------------------------------------

    \661\ The 2010 ABA Derivatives Report recommended that these 
minimum Risk Adjusted Segregated Amounts be reflected in policies 
and procedures that would be subject to approval by the fund's board 
of directors and disclosed (including the principles underlying the 
Risk Adjusted Segregated Amounts for different types of derivatives) 
in the fund's SAI.
---------------------------------------------------------------------------

    Certain commenters on the Concept Release suggested that 
segregation of a fund's daily mark-to-market liability alone may not be 
effective in at least some cases, and suggested that we impose asset 
segregation requirements under which a fund would include in its 
segregated account for a derivative an amount designed to address 
future losses (a ``cushion amount'') in addition to the daily mark-to-
market liability for the derivative.\662\ Some commenters specifically 
supported the 2010 ABA Derivatives Report alternative that used

[[Page 80975]]

Risk Adjusted Segregated Amounts and many commenters generally 
supported using a ``principles-based approach'' to asset segregation 
\663\ that would permit funds to adopt policies and procedures that 
would include minimum asset segregation requirements for each type of 
derivatives instrument, taking into account relevant factors.\664\ Some 
commenters expressed the view that the optimal amount of cover for many 
derivatives may be somewhere in between the full notional and mark-to-
market amounts and that the amount should be expected to cover the 
potential loss to the fund.\665\ One of these commenters recommended 
that fund boards should be responsible for designing asset segregation 
policies with the objective of maintaining segregated assets sufficient 
to meet obligations arising from the fund's derivatives under ``extreme 
but plausible market conditions.'' \666\ Another commenter argued that 
the cushion amount generally should be equal to the initial margin that 
funds will generally be required to post for derivatives following the 
implementation of margin requirements under the Dodd-Frank Act or, in 
the alternative, a cushion amount determined by funds based on a 
portfolio-wide analysis of their derivatives transactions.\667\ This 
commenter suggested that initial margin represents an amount designed 
to protect against potential future losses, and where regulators or 
clearinghouses have determined the amount of initial margin that must 
be posted, they have already made determinations about the level of 
risk represented by an instrument.\668\
---------------------------------------------------------------------------

    \662\ See, e.g., SIFMA Concept Release Comment Letter; ICI 
Concept Release Comment Letter.
    \663\ See, e.g., BlackRock Concept Release Comment Letter; 
Invesco Concept Release Comment Letter; Loomis Concept Release 
Comment Letter; ICI Concept Release Comment Letter; IDC Concept 
Release Comment Letter; ABA Concept Release Comment Letter; Comment 
Letter of Stradley Ronon Stevens & Young LLP (Nov. 7, 2011) (File 
No. S7-33-11), available at http://www.sec.gov/comments/s7-33-11/s73311-27.pdf; MFDF Concept Release Comment Letter; T. Rowe Concept 
Release Comment Letter; Vanguard Concept Release Comment Letter; 
AlphaSimplex Concept Release Comment Letter; Oppenheimer Concept 
Release Comment Letter; Rafferty Concept Release Comment Letter.
    \664\ See, e.g., ABA Concept Release Comment Letter; IDC Concept 
Release Comment Letter; BlackRock Concept Release Comment Letter; 
Invesco Concept Release Comment Letter; ICI Concept Release Comment 
Letter; MFDF Concept Release Comment Letter; AlphaSimplex Concept 
Release Comment Letter; Loomis Concept Release Comment Letter; T. 
Rowe Price Concept Release Comment Letter; Comment Letter of 
Security Investors, LLC (Nov. 7, 2011) (File No. S7-33-11), 
available at http://www.sec.gov/comments/s7-33-11/s73311-36.pdf.
    \665\ See, e.g., ICI Concept Release Comment Letter; Invesco 
Concept Release Comment Letter.
    \666\ ICI Concept Release Comment Letter (noting that ``extreme 
but plausible market conditions'' is a statutory standard used by 
swap execution facilities and derivatives clearing organizations to 
determine the minimum amount of financial resources such entities 
must have to ensure, with a reasonably high degree of certainty, 
that they will be able to satisfy their obligations. See, e.g., 
section 5b(c)(2) of the Commodity Exchange Act, as amended by 
section 725(c) of the Dodd-Frank Act.).
    \667\ See SIFMA Concept Release Comment Letter. See section 
III.C. for a discussion of why we are not proposing to use initial 
margin to determine asset segregation amounts.
    \668\ See SIFMA Concept Release Comment Letter.
---------------------------------------------------------------------------

    As discussed above in section IV.D.3, the rule we are proposing 
today would require a fund that enters into derivatives transactions 
and financial commitment transactions in reliance on the proposed rule 
to maintain an appropriate amount of qualifying coverage assets. For 
derivatives transactions, a fund would be required to maintain 
qualifying coverage assets with a value equal to at least the sum of 
the fund's aggregate mark-to-market coverage amounts and risk-based 
coverage amounts.\669\ For financial commitment transactions, a fund 
would be required to maintain qualifying coverage assets with a value 
equal to at least the fund's aggregate financial commitment 
obligations.\670\
---------------------------------------------------------------------------

    \669\ Proposed rule 18f-4(a)(2). See also proposed rule 18-
f(4)(c)(6) (definition of mark-to-market coverage amount) and 18-
f(4)(c)(9) (definition of risk-based coverage amount).
    \670\ Proposed rule 18f-4(b). See also proposed rule 18f-4(c)(5) 
(definition of financial commitment obligation).
---------------------------------------------------------------------------

    The proposed rule's asset segregation requirement would in many 
ways be consistent with the approaches recommended by the 2010 ABA 
Derivatives Report and by commenters in that it would require funds to 
maintain amounts intended to cover the fund's current mark-to-market 
amount to cover the amount that would be payable by the fund if the 
fund were to exit the derivatives transaction at such time, plus an 
additional amount that represents a reasonable estimate of the 
potential amount payable by the fund if the fund were to exit the 
derivatives transaction under stressed conditions.
    However, the proposed rule would differ significantly from the 
approach recommended in the 2010 ABA Derivatives Report and by some 
commenters in that the proposed rule would impose portfolio 
limitations, as discussed in section III.B.1.c, designed to impose a 
limit on the amount of leverage a fund may obtain through derivatives 
and other senior securities transactions. The 2010 ABA Derivatives 
Report alternative, in contrast, focused on asset segregation without 
any other limitation on a fund's use of senior securities transactions. 
The proposed rule's inclusion of both portfolio limitations and asset 
coverage requirements would be consistent with the recommendation of 
one commenter, which supported a principles-based approach to asset 
segregation but also recognized that we might ``wish to consider 
adopting an overall leverage limit that funds would be required to 
comply with, notwithstanding that they have segregated liquid assets to 
back their obligations.'' \671\
---------------------------------------------------------------------------

    \671\ See Vanguard Concept Release Comment Letter, at n.18.
---------------------------------------------------------------------------

    The 2010 ABA Derivatives Report also recommended an asset 
segregation approach that would give discretion to boards to determine 
the segregation amount for each instrument and thus the amount of 
derivatives exposures that the fund could obtain. The proposed asset 
coverage requirements, by contrast, would be based in part on 
procedures approved by the fund's board, but would also impose specific 
requirements on the fund's asset coverage practices, including by 
generally requiring the fund to segregate short-term, highly liquid 
assets.
    As noted in section III.A, we believe that the proposed rule's 
approach for derivatives transactions--providing separate portfolio 
limitations and asset segregation requirements--would be more effective 
than an approach focusing on asset segregation alone, particularly when 
it is coupled with a risk management program for funds that engage in 
more than a limited amount of derivatives transactions or that use 
certain complex derivatives transactions, as we are proposing today. 
Moreover, the approach recommended in the 2010 ABA Derivatives Report 
and similar suggestions by some commenters would provide discretion to 
funds to determine their derivatives-related requirements, and as a 
result, the extent of their use of senior securities transactions. We 
believe that this alternative approach under the 2010 ABA Derivatives 
Report, without more, may not result in a meaningful limitation on 
funds' use of derivatives, and thus would not address the undue 
speculation concern expressed in section 1(b)(7) or the asset 
sufficiency concern expressed in section 1(b)(8), as discussed above in 
section II. We believe that relying solely on the discretion of funds 
and their boards of directors for limitations on the use of derivatives 
would not be a sufficient basis for an exemption from section 18, which 
imposes a limit on the extent to which funds may issue senior 
securities.

[[Page 80976]]

2. Applying Notional Amount Segregation to All Senior Securities 
Transactions
    Another alternative approach we considered was to apply the 
approach in Release 10666 to all types of derivatives, thereby 
requiring that a fund engaging in any derivatives transaction segregate 
liquid assets of the types we specified in Release 10666 equal in value 
to the full amount of the conditional and unconditional obligations 
incurred by the fund (also referred to as notional amount 
segregation).\672\
---------------------------------------------------------------------------

    \672\ See supra note 54 and accompanying text.
---------------------------------------------------------------------------

    Although the approach in Release 10666 appears to have addressed 
the concerns reflected in sections 1(b)(7) and 1(b)(8) for the trading 
practices described in that release, applying it to derivatives by 
requiring funds to segregate the types of liquid assets we described in 
Release 10666 equal in value to the full notional amount of each 
derivative may require funds to hold more liquid assets than may be 
necessary to address the purposes and concerns underlying section 18, 
as discussed above in section III.A. Furthermore, as discussed above in 
section III.B.1.c., given the contingent nature of funds' derivatives 
obligations and the various ways in which funds use derivatives--both 
for investment purposes to increase returns but also to mitigate 
risks--we believe it is appropriate to provide funds some additional 
flexibility to use derivatives, subject to the limitations set forth in 
the proposed rule.
3. UCITS Alternative
    In developing proposed rule 18f-4, we considered the current 
guidelines that apply to UCITS funds. As discussed below, while our 
proposed rule is similar in some respects to the guidelines that cover 
UCITS funds, our proposed rule also differs in other respects. We also 
considered the current guidelines that apply to AIFs. We discuss 
further below how our proposed rule generally differs from the 
guidelines that govern AIFs.
    The Committee of European Securities Regulators (``CESR'') (which, 
as of January 1, 2011, became the European Securities and Markets 
Authority, or ``ESMA''), conducted an extensive review and consultation 
concerning exposure measures for derivatives used by UCITS funds. 
CESR's Guidelines on Risk Measurement and the Calculation of Global 
Exposure and Counterparty Risk for UCITS (``Global Exposure 
Guidelines'') \673\ were issued in 2010, and addressed the 
implementation of the European Commission's 2009 revised UCITS 
Directive (``2009 Directive'').\674\ Under the 2009 Directive, UCITS 
funds are permitted to engage in any type of derivatives investments 
subject to compliance with one of two permissible, alternative methods 
to limit their exposure to derivatives: (1) The ``commitment'' approach 
and (2) the VaR approach.\675\
---------------------------------------------------------------------------

    \673\ See CESR Global Guidelines, supra note 162. In order for 
CESR's Global Exposure Guidelines to be binding and operational in a 
particular EU Member State, the Member State must adopt them. To 
date, it appears that a few EU Member States, e.g., Ireland and 
Luxembourg, have adopted them. The majority of UCITS funds, however, 
are domiciled in either Ireland or Luxembourg.
    \674\ See Directive 2009/65/EC of the European Parliament and of 
the Council of 13 July 2009 on the coordination of laws, 
regulations, and administrative provisions relating to undertakings 
for collective investment in transferable securities (UCITS) 
(``Directive 2009/65/EC''), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:302:0032:0096:en:PDF.
    \675\ See CESR Global Guidelines, supra note 162. The CESR's 
Global Exposure Guidelines note that the ``use of a commitment 
approach or VaR approach or any other methodology to calculate 
global exposure does not exempt UCITS from the requirement to 
establish appropriate internal risk management measures and 
limits.'' Id., at 5. In addition, with respect to the selection of 
the methodology used to measure global exposure, CESR's Global 
Exposure Guidelines note that the ``commitment approach should not 
be applied to UCITS using, to a large extent and in a systematic 
way, financial derivative instruments as part of complex investment 
strategies.'' Id., at 6.
---------------------------------------------------------------------------

    Under the commitment approach, a UCITS fund's net exposures from 
derivatives may not exceed 100% of the fund's net asset value.\676\ 
CESR's Global Exposure Guidelines extensively address the calculation 
of derivatives exposure and specify a method for calculating 
derivatives exposure that generally uses the market value of the 
equivalent position in the underlying asset.\677\ CESR's Global 
Exposure Guidelines also incorporate a schedule of derivative 
investments and their corresponding conversion methods to be used in 
calculating global exposure.\678\ The applicable conversion method for 
UCITS funds depends on the particular derivative.\679\ We believe that 
the calculation of derivatives exposure under CESR's Global Exposure 
Guidelines is generally similar to the method of calculating notional 
amounts, which under our proposed rule would be included in a fund's 
calculation of its exposure. Instead of specifying in the rule the 
precise method of determining notional amounts for every particular 
type of derivative transaction, we have proposed a definition of 
notional amount that we believe can be more readily adapted both to 
current and new types of derivatives transactions.
---------------------------------------------------------------------------

    \676\ Directive 2009/65/EC, supra note 674 at Article 51(3) at 
62 (``The exposure is calculated taking into account the current 
value of the underlying assets, the counterparty risk, future market 
movements and the time available to liquidate the positions''). See 
also CESR Global Guidelines, supra note 162 (``The commitment 
conversion methodology for standard derivatives is always the market 
value of the equivalent position in the underlying asset. This may 
be replaced by the notional value or the price of the futures 
contract where this is more conservative. For non-standard 
derivatives, where it is not possible to convert the derivative into 
the market value or notional value of the equivalent underlying 
asset, an alternative approach may be used provided that the total 
amount of the derivatives represent a negligible portion of the 
UCITS portfolio.'').
    \677\ The market value of the underlying reference asset may be 
``replaced by the notional value or the price of the futures 
contract where this is more conservative.'' See CESR Global 
Guidelines, supra note 162, at 7.
    \678\ See id., at 7-12.
    \679\ Id., at 8. For example, for bond futures, the applicable 
conversion method is the number of contracts multiplied by the 
notional contract size multiplied by the market price of the 
cheapest-to-deliver reference bond. For plain vanilla fixed/floating 
interest rate and inflation swaps, the applicable conversion method 
is the market value of the underlier (though the notional value of 
the fixed leg may also be applied). Id. For foreign exchange 
forwards, the prescribed conversion method is the notional value of 
the currency leg(s). Id., at 9. With respect to non-standard 
derivatives, where it is not possible to convert the derivative into 
the market value or notional value of the equivalent underlying 
asset, CESR's Global Exposure Guidelines note that ``an alternative 
approach may be used provided that the total amount of the 
derivatives represent a negligible portion of the UCITS portfolio.'' 
Id., at 7.
---------------------------------------------------------------------------

    Although the CESR commitment approach is similar with respect to 
our proposed method of calculating derivatives exposure, the commitment 
approach differs from our proposed exposure-based alternative in 
several ways. First, the commitment approach permits exposures of up to 
only 100% of the fund's net assets rather than our proposed rule's 
exposure-based portfolio limit of 150%. Second, the commitment approach 
permits UCITS funds to reduce their calculated derivatives exposure for 
certain netting and hedging transactions. With respect to netting, 
CESR's Global Exposure Guidelines allow netting of derivatives 
transactions regardless of the derivatives' due dates, provided that 
the trades are ``concluded with the sole aim of eliminating the risks 
linked to the positions.'' \680\ In addition, UCITS funds are permitted 
to reduce their exposures for hedging arrangements--these are described 
in CESR's Global Exposure Guidelines as transactions that do not 
necessarily refer to the same underlying asset but are entered into for 
the ``sole

[[Page 80977]]

aim of offsetting risks'' linked to other positions.\681\
---------------------------------------------------------------------------

    \680\ See CESR Global Guidelines, supra note 162, at 13.
    \681\ See CESR Global Guidelines, supra note 162, at 18. The 
UCITS requirements also permit the fund to reduce its exposures if 
the derivative directly swaps the performance of financial assets 
held by the fund for other reference assets or the derivative, in 
combination with cash held by the fund, represents the equivalent of 
a cash investment in the reference asset.
---------------------------------------------------------------------------

    As discussed above in section III.B, given the flexibility provided 
by our proposed 150% exposure limit (and the requirements provided 
under our proposed risk-based portfolio limit discussed above), the 
proposed rule does not permit a fund to reduce its exposure for 
purposes of the rule's portfolio limitations for particular types of 
hedging, risk-mitigating or offsetting transactions. For all of the 
reasons discussed in that section, we believe that it would be more 
appropriate, in lieu of a reduction for hedging on a transaction-by-
transaction basis, to provide funds with the flexibility to enter into 
derivatives transactions for a variety of purposes, including those 
that are partially or primarily for hedging, through a 150% exposure 
limitation.
    Similar to our proposed rule, the UCITS guidelines also provide an 
alternative risk-based approach. This alternate method for UCITS 
compliance is the VaR (or other advanced risk measurement) approach, 
designed to measure potential losses due to market risk rather than 
measure leverage exposures.\682\ When following the VaR approach to 
calculate global exposure, a UCITS fund may use either an absolute VaR 
approach or a relative VaR approach.\683\ The absolute VaR approach 
limits the maximum VaR that a UCITS fund can have relative to its net 
assets, and as a general matter, the absolute VaR is limited to 20 
percent of the UCITS fund's net assets.\684\ Under the relative VaR 
approach, the VaR of the portfolio cannot be greater than twice the VaR 
of an unleveraged reference portfolio.\685\
---------------------------------------------------------------------------

    \682\ Id., at 22 (``More particularly, the VaR approach measures 
the maximum potential loss at a given confidence level (probability) 
over a specific time period under normal market conditions.'').
    \683\ Id., at 23. A global exposure calculation using the VaR 
approach should consider all the positions in the UCITS' portfolio. 
Id., at 22. The VaR approach measures the probability of risk of 
loss rather than the amount of leverage in portfolio and the VaR 
calculation is required to have a ``one-tailed confidence interval 
of 99%,'' a holding period of one month (20 business days), an 
observation period of risk factors of at least one year (unless a 
shorter observation period is justified by a significant increase in 
price volatility), at least quarterly updates, and at least daily 
calculation. Id. at 26. UCITS employing the VaR approach are 
required to conduct a ``rigorous, comprehensive and risk-adequate 
stress testing program.'' Id., at 30-34.
    \684\ Id., at 25-26.
    \685\ CESR's Global Exposure Guidelines note that the relative 
VaR approach does not directly measure leverage of the UCITS' 
strategies but instead allows the UCITS to double the risk of loss 
under a given VaR model as compared to a reference benchmark. Id., 
at 24.
---------------------------------------------------------------------------

    While our proposed rule also uses a VaR ratio comparison as a risk 
measurement method to limit the use of derivatives, we have determined 
not to propose the use of an absolute VaR method that would limit the 
fund's VaR amount to a specified percentage of net assets, or a 
relative VaR that would measure a fund's VaR as compared to a reference 
benchmark. As discussed above in the section III.B.2.b, our concern 
with respect to an absolute VaR method is that the calculation of VaR 
on a historical basis is highly dependent on the historical trading 
conditions during the measurement period and can change dramatically 
both from year to year and from periods of benign trading conditions to 
periods of stressed market conditions. As discussed above in section 
III.B.1.c, we believe that our exposure-based portfolio limit of 150% 
and our risk-based portfolio limit of 300% are appropriately designed 
to impose a limit on the amount of leverage a fund may obtain through 
certain derivatives and other senior securities transactions while also 
providing flexibility for funds to use derivatives transactions for a 
variety of purposes. However, a limitation based on an absolute VaR 
method could potentially allow a fund to obtain very substantial 
amounts of leveraged exposures that the fund could then be required to 
unwind during stressed market conditions, which could adversely affect 
the fund and its investors. In addition, our staff has noted that some 
UCITS funds relying on the absolute VaR method disclose gross notional 
amounts for their portfolios that are substantially in excess of our 
proposed portfolio limitations that we believe are appropriate for 
funds subject to section 18 of the Act as discussed above in section 
III.B.1.c.
    The relative VaR method for UCITS funds, under which a fund would 
compare its total portfolio VaR to an unleveraged reference portfolio 
or benchmark, allows a UCITS fund to use derivatives in its portfolio 
so long as the VaR of the UCITS fund is not greater than two times the 
VaR of the reference portfolio or benchmark. As discussed above in 
section III.B.2.a, we have not proposed this particular approach for 
several reasons, including concerns regarding difficulties in 
determining whether a reference index or benchmark is itself leveraged. 
Our staff has also noted that a number of UCITS funds do not use the 
relative VaR method and many alternative funds use a benchmark that is 
a money market rate (such as LIBOR), oftentimes because an analogous 
investment benchmark is not available for the fund strategy, which 
suggests that a VaR comparison to a benchmark would not provide a 
suitable method for many fund strategies.\686\
---------------------------------------------------------------------------

    \686\ See supra notes 268-270 and accompanying text.
---------------------------------------------------------------------------

    In addition to the two alternative exposure limitations, CESR's 
Global Exposure Guidelines also subject UCITS funds to ``cover rules'' 
for investments in financial derivatives.\687\ Under these cover rules, 
a UCITS fund should, at any given time, be capable of meeting all its 
payment and delivery obligations incurred by transactions involving 
financial derivative investments, and should monitor to make sure that 
financial derivatives transactions are adequately covered.\688\ More 
specifically, in the case of a derivative that provides, automatically 
or at the counterparty's choice, for physical delivery of the 
underlying financial instrument, a UCITS fund: (1) Should hold the 
underlying financial instrument in its portfolio as cover, or, (2) if 
the UCITS fund deems the underlying financial instrument to be 
sufficiently liquid, it may hold as coverage other assets (including 
cash) as cover on the condition that these assets (after applying 
appropriate haircuts), held in sufficient quantities, may be used at 
any time to acquire the underlying financial instrument that is to be 
delivered.\689\ In the case of a derivative that provides, 
automatically or at the UCITS fund's choice, for cash settlement, the 
UCITS fund should hold enough liquid assets after appropriate haircuts 
to allow the UCITS fund to make the contractually required 
payments.\690\ Similar to the UCITS cover rules, the asset segregation 
requirements of our proposed rule are also designed to assure that a 
fund has sufficient assets to pay its derivatives related

[[Page 80978]]

obligations. However, our proposed asset segregation requirements 
differ from the UCITS requirements for the reasons discussed above in 
section III.C.
---------------------------------------------------------------------------

    \687\ CESR Global Guidelines, supra note 162, at 40.
    \688\ Id.
    \689\ Id.
    \690\ Id. On April 14, 2011, ESMA published a final report on 
the guidelines on risk measurement and the calculation of the global 
exposure for certain types of structured UCITS funds. See Guidelines 
to Competent Authorities and UCITS Management Companies on Risk 
Measurement and the Calculation of Global Exposure for Certain Types 
of Structured UCITS, Final Report Ref.: ESMA/2011/112 (Apr. 14, 
2011), available at http://www.esma.europa.eu/popup2.php?id=7542 
(these guidelines, which will need to be adopted and implemented by 
Member States, propose for certain types of structured UCITS, an 
optional regime for the calculation of the global exposure).
---------------------------------------------------------------------------

    ESMA has also more recently adopted guidelines to assess the 
leverage used by AIFs marketed to professional investors in the 
European Union.\691\ These guidelines supplement a directive proposed 
by the European Commission, the Alternative Investment Fund Managers 
Directive (``AIFMD''), which had the objective to create a 
comprehensive and effective regulatory and supervisory framework for 
AIF managers at the European level.\692\ AIFMD defines leverage as 
``any method by which the [AIF manager] increases the exposure of an 
AIF it manages whether through borrowing of cash or securities, or 
leverage embedded in derivative positions or by any other means.'' 
\693\ For each AIF that it manages, the AIF manager is required to 
establish a maximum level of leverage which it may employ on behalf of 
the AIF and to report the AIF's leverage to investors and supervisory 
authorities.\694\ Unlike the UCITS regime, AIFMD does not restrict the 
amount of leverage that may be used by an AIF; instead it requires 
managers to set their own limitation for each AIF. The requirements in 
AIFMD thus serve primarily to provide a consistent method of measuring 
and reporting of the amount of leverage used by AIFs.
---------------------------------------------------------------------------

    \691\ See Commission Delegated Regulation (EU) No 231/2013 of 
Dec. 19, 2012 supplementing Directive 2011/61/EU of the European 
Parliament and of the Council with regard to exemptions, general 
operating conditions, depositaries, leverage, transparency and 
supervision (``Commission Delegated Regulation No. 231/2013''), 
available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0231 (providing for the calculation of leverage for 
alternative investment funds).
    \692\ Directive 2011/61/EU of the European Parliament and of the 
Council of 8 June 2011 on Alternative Investment Fund Managers and 
amending Directives 2003/41/EC and Regulations (EC) No 1060/2009 and 
(EU) No 1095/2010 (``Directive 2011/61/EU''), available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011L0061&from=EN.
    \693\ See Directive 2011/61/EU, supra note 692, at Article 
4(1)(v).
    \694\ See id., at Articles 15(4) and 7(3)(a).
---------------------------------------------------------------------------

    AIF managers are required to calculate leverage used by AIFs both 
under a gross method and a commitment method. As described by ESMA, 
``[t]he gross method gives the overall exposure of the AIF whereas the 
commitment method gives insight in the hedging and netting techniques 
used by the manager.'' \695\ The measurement of exposure relating to 
derivatives and borrowings in our proposed rule generally is similar to 
AIFMD requirements with respect to the measurement of the gross 
exposure relating to derivatives and borrowings.\696\ The commitment 
method under AIFMD, however, allows an AIF also to report its exposure 
after reduction for netting and hedging arrangements. The determination 
of whether a set of transactions are eligible for netting or hedging 
treatment would be made by the AIF manager subject to general 
principles focusing on whether the transactions result in an 
``unquestionable reduction of the general market risk'' or 
alternatively whether the transactions are part of an arbitrage 
strategy that is seeking to generate a return based on the relative 
performance of two correlated assets.\697\
---------------------------------------------------------------------------

    \695\ See Commission Delegated Regulation No. 231/2013, supra 
note 691, at preamble paragraph (12).
    \696\ The AIFMD requirements do allow for a reduction to account 
for cash equivalents held by the fund while requiring leverage from 
reinvestment of collateral held by the fund to be added to the 
leverage calculation.
    \697\ For example, the AIF directive notes that a ``portfolio 
management practice which aims to keep the alpha of a basket of 
shares (comprising a limited number of shares) by combining the 
investment in that basket of shares with a beta-adjusted short 
position on a future on a stock market index should not be 
considered as complying with the hedging criteria. Such a strategy 
does not aim to offset the significant risks linked to the 
investment in that basket of shares but to offset the beta (market 
risk) of that investment and keep the alpha. The alpha component of 
the basket of shares may dominate over the beta component and as 
such lead to losses at the level of the AIF. For that reason, it 
should not be considered as a hedging arrangement.'' See Commission 
Delegated Regulation No. 231/2013, supra note 691, at preamble 
paragraph (23).
---------------------------------------------------------------------------

    For reasons discussed above, we have decided not to propose a rule 
that would allow fund managers to set their own exposure limitation for 
each fund. In addition, as discussed above, we believe it would be 
difficult to develop standards for determining circumstances under 
which transactions are offsetting other transactions, and thus we have 
chosen not to incorporate a hedging reduction into the proposed 
exposure limitations. Accordingly, and as discussed above in section 
III.B.1.c, we believe that a test that focuses on the notional amounts 
of funds' derivatives transactions, coupled with an appropriate 
exposure limit, will better accommodate the broad diversity of 
registered funds and the ways in which they use derivatives. We also 
believe that, to the extent fund managers may wish to include more 
specific risk metrics with respect to their funds, they may do so by 
including such metrics within the proposed derivatives risk management 
program.
4. Disclosure Alternative and Considerations
    We considered whether enhancements to funds' disclosure obligations 
with respect to a fund's use of derivatives would be a reasonable 
alternative to the proposed rule.\698\ We received a range of comments 
on the Concept Release regarding the efficacy of disclosure. Some 
commenters that recommended disclosure enhancements also suggested 
approaches that went beyond enhanced disclosure,\699\ and at least one 
commenter specifically argued that disclosure alone was not 
sufficient.\700\ For example, this commenter noted that the financial 
crisis of 2007-2008 demonstrated that disclosure alone is not adequate 
because markets may do a poor job of regulating the use of leverage by 
financial institutions, thus allowing leverage to increase until there 
are catastrophic failures.\701\ On the other hand, some commenters 
specifically argued that in at least certain circumstances the use of 
derivatives by a fund should be addressed solely through disclosure. 
For example, one commenter suggested that disclosure requirements would 
be suitable for transactions that possess only economic leverage, which 
the commenter argued would implicate the risks and volatility of a fund 
similar to that of other types of non-derivative investments.\702\ 
Another commenter argued that leveraged funds, particularly leveraged 
exchange-traded funds, present fewer concerns than do other funds that 
use derivatives due in part to their robust level of disclosure, and 
should not have any additional derivatives limitations imposed on 
them.\703\
---------------------------------------------------------------------------

    \698\ See, e.g., Security Investors Comment Letter (arguing that 
significant changes to the current regulatory scheme are not 
warranted, but that the existing regulatory scheme could be improved 
upon the clarification of existing guidance, including greater 
disclosure about funds' investments in derivatives); Ropes and Gray 
Comment Letter (suggesting that absent any indication that funds are 
not making adequate disclosure with respect to derivatives, or that 
fund boards are not fulfilling their oversight responsibilities, 
there is no compelling reason for the Commission to impose new 
restrictions on the use of derivatives).
    \699\ See, e.g., ABA Concept Release Comment Letter; ICI Concept 
Release Comment Letter.
    \700\ See, e.g., Keen Concept Release Comment Letter.
    \701\ See Keen Concept Release Comment Letter.
    \702\ See ABA Concept Release Comment Letter. See also T. Rowe 
Price Concept Release Comment Letter; ICI Concept Release Comment 
Letter.
    \703\ See Rafferty Concept Release Comment Letter.
---------------------------------------------------------------------------

    Although disclosure is an important mechanism through which funds 
inform existing and prospective shareholders of the fund's use of 
derivatives, we do not believe that an approach that focuses on

[[Page 80979]]

disclosure would address the purposes and concerns underlying section 
18 of the Act as effectively as the approach we are proposing today, 
particularly given that section 18 itself imposes a specific limitation 
on the amount of senior securities that may be issued by a fund 
regardless of the risk associated with the particular senior 
securities. In this regard we note that investment company abuse of 
leverage was a primary concern that led to enactment of the Investment 
Company Act.\704\ In the Investment Company Act's preamble, Congress 
cited excessive leverage as a major abuse that it meant to correct, 
declaring in section 1(b)(7) of the Act that the public interest and 
the interest of investors are adversely affected ``when investment 
companies by excessive borrowing and the issuance of excess amounts of 
senior securities increase unduly the speculative character of their 
junior securities.'' \705\ The proposed rule is designed to impose a 
limit on the amount of leverage a fund may obtain through derivatives 
and financial commitment transactions, whereas requiring enhancement to 
derivatives disclosure, absent additional requirements to limit 
leverage or potential leverage, would not appear to provide any limit 
on the amount of leverage a fund may obtain, and thus would not provide 
any regulatory distinction between funds regulated by the Act and 
private funds not regulated by the Act in respect of their respective 
ability to obtain leverage through derivatives. An approach focused on 
enhanced disclosure requirements thus does not appear to provide a 
sufficient basis for an exemption from the requirements of section 18 
of the Act.
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    \704\ In 1939, the Commission Released an exhaustive study of 
the investment company industry that laid the foundation for the 
Investment Company Act. SEC, Investment Trusts and Investment 
Companies, H.R. Doc. No. 707, 75th Cong., 3d Sess. pt. 1 (1939); 
SEC, Investment Trusts and Investment Companies, H.R. Doc. No. 70, 
76th Cong., 1st Sess. pt. 2 (1939); SEC, Investment Trusts and 
Investment Companies, H.R. Doc. No. 279 Cong., 1st Sess. pt. 3 
(1939). For a discussion of leveraged capital structures of 
investment companies, see Investment Trust Study pt.3, Ch. V, 
``Problems in Connection with Capital Structure,'' 1563-1940.
    \705\ Section 1(b)(7) of the Investment Company Act.
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    We do, however, believe that disclosure is an important aspect of 
the existing regulatory framework and that effective derivatives-
related disclosure would complement the limitations on derivatives use 
in the proposed rule. Indeed, in May 2015, we proposed enhanced 
reporting and disclosure requirements for investment companies that 
include new reporting requirements for derivatives transactions, 
including, for most funds, more detailed reporting of the terms and 
conditions of each derivatives contract in a fund's portfolio on a 
monthly basis in a structured format.\706\ The proposal also would 
require reporting of the fund's monthly net realized gain (or loss) and 
net change in unrealized appreciation (or depreciation) attributable to 
derivatives.\707\
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    \706\ Such information would be reported on proposed Form N-
PORT. See Proposed Form N-PORT, Item C.11.; Investment Company 
Reporting Modernization Release, supra note 138. Our staff also has 
previously addressed funds' disclosure with respect to their use of 
derivatives in 2010 and 2013. See Letter from Barry D. Miller, 
Associate Director, Division of Investment Management, U.S. 
Securities and Exchange Commission, to Karrie McMillan, General 
Counsel, Investment Company Institute (July 30, 2010); SEC, 
Disclosure and Compliance Matters for Investment Company Registrants 
That Invest in Commodity Interests, IM Guidance Update (Aug. 2013) 
(No. 2013-05), available at https://www.sec.gov/divisions/investment/guidance/im-guidance-2013-05.pdf.
    \707\ Proposed Form N-PORT Item B.5.
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    As discussed in the Investment Company Reporting Modernization 
Release, these proposed requirements would, among other things, help 
the Commission and investors better understand the exposures that the 
derivatives create or hedge, which can be important to understanding a 
fund's investment strategy, use of leverage, and potential for risk of 
loss.\708\ Such information would allow the Commission to better assess 
industry trends regarding the use of derivatives, which the Commission 
could use to better carry out its regulatory functions, such as the 
formulation of policy and guidance, the review of registration 
statements, and the examination of funds.\709\ The Investment Company 
Reporting Modernization Release also included amendments to Regulation 
S-X that would require similar enhanced derivatives disclosures in fund 
financial statements, which would increase transparency of a fund's use 
of derivatives and comparability among funds to help investors better 
assess funds' use of derivatives and make more informed investment 
decisions.\710\
---------------------------------------------------------------------------

    \708\ See Investment Company Reporting Modernization Release, 
supra note 138, at Part II.A.2.d. and Part II.A.2.g.iv.
    \709\ See Investment Company Reporting Modernization Release, 
supra note 138, at Part II.A.
    \710\ See Investment Company Reporting Modernization Release, 
supra note 138, at Part II.C.
---------------------------------------------------------------------------

Amendments to Proposed Form N-PORT
    The Commission is also proposing to require additional position 
level risk-sensitivity measures on Form N-PORT, vega and gamma, for 
funds that are required to implement a derivatives risk management 
program by proposed rule 18f-4(a)(3). These measures would improve the 
ability of Commission staff to efficiently understand and approximate 
the risk exposures of reporting funds.
    A reasonable alternative is to require portfolio- and position-
level risk-sensitivity measures in addition to vega and gamma that 
would provide Commission staff a more precise approximation of the risk 
exposures of reporting funds. For example, Form N-PORT could require 
the risk-sensitivity measures theta and rho at the position-level; and 
at the portfolio level measures that describe the sensitivity of a 
reporting fund to a 50 or 100 basis point change in interest rates and 
credit spreads or a measure of convexity. These measures could improve 
the ability of Commission staff to monitor the fund industry in 
connection with other risks and more sizable changes in prices and 
rates. While potentially valuable, requiring these additional measures 
could increase the burden on funds, and the additional precision might 
not significantly improve the ability of Commission staff to monitor 
the fund industry in most market environments. Another reasonable 
alternative is to not require any additional risk-sensitivity measures. 
Although the burden to investment companies to provide the information 
would be less if fewer or no risk-sensitivity measures were required by 
the Commission, we believe that the benefits from requiring the 
measures, including the ability to efficiently identify and size 
specific investment risks, justify the costs to investment companies to 
provide the measures.
    Our proposal would require only those funds that are required to 
implement a derivatives risk management program to report vega and 
gamma on proposed Form N-PORT. As an alternative, we could require 
funds with lower exposures than those funds would be required to 
implement a derivatives risk management program to also report vega and 
gamma. Alternatively, we could redefine the basis for funds to 
implement a derivatives risk management program and therefore require a 
different set of funds to report the additional risk-sensitivity 
measures. However, as we discussed above, we believe that the current 
requirements will capture most of the funds that use derivatives as a 
significant factor of their returns, while not imposing burdens on 
funds that do not generally rely on derivatives as an

[[Page 80980]]

important part of their investment strategies.\711\
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    \711\ See supra section III.G.2.
---------------------------------------------------------------------------

F. Request for Comment

    The Commission requests comment on all aspects of this initial 
economic analysis, including whether the analysis has: (1) Identified 
all benefits and costs, including all effects on efficiency, 
competition, and capital formation; (2) given due consideration to each 
benefit and cost, including each effect on efficiency, competition, and 
capital formation; and (3) identified and considered reasonable 
alternatives to the proposed new rule and rule amendments. We request 
and encourage any interested person to submit comments regarding the 
proposed rule, our analysis of the potential effects of the proposed 
rule and proposed amendments, and other matters that may have an effect 
on the proposed rule. We request that commenters identify sources of 
data and information as well as provide data and information to assist 
us in analyzing the economic consequences of the proposed rule and 
proposed amendments. We also are interested in comments on the 
qualitative benefits and costs we have identified and any benefits and 
costs we may have overlooked.
    In addition to our general request for comment on the economic 
analysis associated with the proposed rule and proposed amendments, we 
request specific comment on certain aspects of the proposal:
     What factors, taking into account a fund's particular 
risks and circumstances, would cause particular variance in funds' 
compliance costs related to the proposed rule?
     We request comment on our estimates of the one-time and 
ongoing costs associated with proposed rule 18f-4, including the 
exposure-based and risk-based portfolio limits, asset segregation 
requirement, and risk management program requirement. Do commenters 
agree with our cost estimates? If not, how should our estimates be 
revised, and what changes, if any, should be made to the assumptions 
forming the basis for our estimates? Are there any significant costs 
that have not been identified within our estimates that warrant 
consideration? To what degree would economies of scale affect 
compliance costs for funds?
     We request comment on our estimate of the number of funds 
that would seek to comply with the exposure-based and risk-based 
portfolio limits, asset segregation requirements, and the derivatives 
risk management program requirement. Do commenters agree that a fund 
that belongs to a fund complex is likely to achieve economies of scale 
that make it more likely that a fund will incur costs closer to the 
low-end of the range of estimated costs?
     Do commenters agree with our belief that the benefits and 
costs associated with the asset segregation requirement for a fund that 
invests solely in financial commitment transactions would be the same 
as those we estimate for the asset segregation requirements that would 
apply to a fund that also enters into derivatives transactions? Why or 
why not?
     To what extent do commenters anticipate that proposed rule 
18f-4 could lead funds to modify their investment strategies or 
decrease their use of derivatives?
     To what extent do funds' current practices regarding 
derivatives risk management, if applicable, currently align with the 
proposed derivatives risk management program, and what operational and 
other costs would funds incur in modifying their current practices to 
comply with the proposed requirements?

V. Paperwork Reduction Act

A. Introduction

    Proposed rule 18f-4 contains several ``collections of information'' 
within the meaning of the Paperwork Reduction Act of 1995 
(``PRA'').\712\ The proposed amendments to proposed Form N-PORT and 
Form N-CEN would impact the collections of information burdens 
associated with that proposed form described in the Investment Company 
Reporting Modernization Release.\713\ In the Investment Company 
Reporting Modernization Release, we submitted new collections of 
information for proposed Form N-PORT and Form N-CEN.\714\ The title for 
these new collections of information is ``Form N-PORT under the 
Investment Company Act, Monthly Portfolio Investments Report'' and 
``Form N-CEN Under the Investment Company Act, Annual Report for 
Registered Investment Companies.'' We are submitting new collections of 
information for proposed new rule 18f-4 under the Investment Company 
Act of 1940. The titles for this new collection of information would 
be: ``Rule 18f-4 under the Investment Company Act of 1940, Use of 
Derivatives by Registered Investment Companies and Business Development 
Companies.''
---------------------------------------------------------------------------

    \712\ 44 U.S.C. 3501 through 3521.
    \713\ See Investment Company Reporting Modernization Release, 
supra note 138, at section V.
    \714\ See id.
---------------------------------------------------------------------------

    The Commission is submitting these collections of information to 
the OMB for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 
1320.11. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid control number.
    The Commission is proposing new rule 18f-4 and is proposing to 
amend proposed Form N-PORT and Form N-CEN. The proposed rule and 
amendments are designed to address the investor protection purposes and 
concerns underlying section 18 of the Act and to provide an updated and 
more comprehensive approach to the regulation of funds' use of 
derivatives transactions in light of the dramatic growth in the volume 
and complexity of the derivatives markets over the past two decades and 
the increased use of derivatives by certain funds. We discuss below the 
collection of information burdens associated with these reforms.\715\
---------------------------------------------------------------------------

    \715\ We discuss below these collection of information burdens 
on each fund, but note that certain of the estimated costs may be 
incurred instead, at least in part, by other third parties, 
including a fund's investment adviser.
---------------------------------------------------------------------------

B. Proposed Rule 18f-4

    Proposed rule 18f-4 would require a fund that relies on the rule in 
order to enter into derivatives transactions to: (1) Comply with one of 
two alternative portfolio limitations designed to impose a limit on the 
amount of leverage the fund may obtain through derivatives transactions 
and other senior securities transactions; (2) manage the risks 
associated with its derivatives transactions by maintaining an amount 
of certain assets, defined in the rule as ``qualifying coverage 
assets,'' designed to enable the fund to meet its obligations under its 
derivatives transactions; and (3) depending on the extent of its 
derivatives usage, establish a derivatives risk management program. A 
fund that relies on the proposed rule in order to enter into financial 
commitment transactions would be required to maintain qualifying 
coverage assets equal in value to the fund's full obligations under 
those transactions. As discussed in greater detail below, a number of 
the proposed requirements are collections of information under the PRA. 
The respondents to proposed rule 18f-4 would be certain registered 
open- and closed-end management investment companies and BDCs. 
Compliance with proposed rule 18f-4 would be mandatory for all funds 
that seek to

[[Page 80981]]

engage in derivatives transactions and financial commitment 
transactions in reliance on the rule, which would otherwise be subject 
to the restrictions of section 18. No information would be submitted 
directly to the Commission under proposed rule 18f-4. To the extent 
that records required to be created and maintained by funds under the 
rule are provided to Commission staff in connection with examinations 
or investigations, such information would be kept confidential subject 
to the provisions of applicable law. We believe that our collection of 
information cost estimates below are an upper bound because, as 
discussed in section IV, many funds are part of a fund complex and will 
likely benefit from economies of scale.
1. Portfolio Limitations for Derivatives Transactions
    Proposed rule 18f-4 would require a fund that engages in 
derivatives transactions in reliance on the rule to comply with one of 
two alternative portfolio limitations.\716\ Under the exposure-based 
portfolio limit, a fund generally would be required to determine that, 
immediately after entering into any senior securities transaction, its 
aggregate exposure does not exceed 150% of the value of the fund's net 
assets.\717\ Under the risk-based portfolio limit, a fund generally 
would be required to determine that, immediately after entering into 
any senior securities transaction, (1) the fund's full portfolio VaR 
does not exceed its securities VaR and (2) the fund's aggregate 
exposure does not exceed 300% of the value of the fund's net 
assets.\718\ In addition, a fund that engages in derivatives 
transactions in reliance on the proposed rule would not be required to 
have a derivatives risk management program if the fund complies with a 
portfolio limitation under which, immediately after entering into any 
derivatives transaction, the fund's aggregate exposure does not exceed 
50% of the value of the fund's net assets and the fund does not use 
complex derivatives transactions.\719\
---------------------------------------------------------------------------

    \716\ Proposed rule 18f-4(a)(1).
    \717\ Proposed rule 18f-4(a)(1)(i).
    \718\ Proposed rule 18f-4(a)(1)(ii).
    \719\ Proposed rule 18f-4(a)(1).
---------------------------------------------------------------------------

    As discussed above in section IV.D.1 and IV.D.2, in the DERA staff 
analysis, 68% of all of the sampled funds did not have any exposure to 
derivatives transactions, and these funds thus do not appear to use 
derivatives transactions or, if they do use them, do not appear to do 
so to a material extent.\720\ Staff thus estimates that the remaining 
32% of funds (3,831 funds \721\) will seek to rely on this part of 
proposed rule 18f-4, and therefore comply with the portfolio limitation 
requirements. These funds would be subject to the collections of 
information described below with respect to their applicable portfolio 
limitations.
---------------------------------------------------------------------------

    \720\ None of the BDCs in the DERA sample had exposure to 
derivatives transactions.
    \721\ This estimate is based on the following calculation: 
11,973 funds x 32% = 3,831 funds. See supra note 578.
---------------------------------------------------------------------------

Initial Determination of Portfolio Limitations
    The proposed rule would require a fund's board of directors, 
including a majority of the directors who are not interested persons of 
the fund, to approve (a) the fund's determination to comply with either 
the exposure-based portfolio limit or the risk-based portfolio limit 
under the proposed rule, and (b) if applicable, the fund's 
determination to limit its aggregate exposure under derivatives 
transactions to not more than 50% of its NAV and not to use complex 
derivatives transactions.\722\ We estimate a one-time burden of 3 hours 
per fund associated with a board's review and approval of a fund's 
portfolio limitation or, amortized over a three-year period, a burden 
of approximately 1 hour annually per fund. We therefore estimate that 
the total hourly burden for the initial reviews and approvals of funds' 
portfolio limitations would be 11,493 hours.\723\ We estimate that each 
fund would incur a time cost of approximately $5,121 to obtain this 
initial approval, for a total initial time cost for all funds of 
approximately $19,618,551.\724\ In addition to the internal costs 
described above, we also estimate that each fund would incur a one-time 
average external cost of $800 associated with a fund board consulting 
its outside legal counsel with regard to the required board 
approvals.\725\
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    \722\ Proposed rule 18f-4(a)(5)(i). The cost burdens associated 
with a fund board's approvals include costs incurred to prepare 
materials for the board's determinations, as well as the board's 
review and approval of determinations required by the proposed rule. 
See infra note 724.
    \723\ This estimate is based on the following calculation: 3 
hours x 3,831 funds = 11,493 hours.
    \724\ This estimate is based on the following calculations: 0.6 
hours x $301 (hourly rate for a senior portfolio manager) = $181; 
0.6 hours x $455.5 (blended hourly rate for assistant general 
counsel ($426) and chief compliance officer ($485) = $273; 1.0 hours 
x $4,400 (hourly rate for a board of 8 directors) = $4,400; 0.8 
hours (for a fund attorney's time to prepare materials for the 
board's determinations) x $334 (hourly rate for a compliance 
attorney) = $267. $181 + $273 + $4,400 + $267 = $5,121; $5,121 x 
3,831 funds = $19,618,551. The hourly wages used are from SIFMA's 
Management & Professional Earnings in the Securities Industry 2013, 
modified to account for an 1800-hour work-year and multiplied by 
5.35 to account for bonuses, firm size, employee benefits, and 
overhead. The staff previously estimated in 2009 that the average 
cost of board of director time was $4,000 per hour for the board as 
a whole, based on information received from funds and their counsel. 
Adjusting for inflation, the staff estimates that the current 
average cost of board of director time is approximately $4,400.
    \725\ This estimate is based on the following calculation: 2 
hours x $400 (hourly rate for outside legal services) = $800.
---------------------------------------------------------------------------

Recordkeeping
    The proposed rule would require a fund to maintain a record of each 
determination made by the fund's board that the fund will comply with 
one of the portfolio limitations under the proposed rule, which would 
include the fund's initial determination as well as a record of any 
determination made by the fund's board to change the portfolio 
limitation.\726\ We estimate a one-time burden of 0.6 hours per fund 
associated with maintaining a record of a board's initial determination 
of the fund's portfolio limit or, amortized over a three-year period, a 
burden of about 0.2 hours annually per fund. We therefore estimate that 
the total burden for maintaining a record of a board's initial 
determination of the fund's portfolio limit would be 2,299 hours.\727\ 
We also estimate that each fund would incur a time cost of 
approximately $38 to meet this requirement, for a total initial time 
cost of approximately $164,733.\728\
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    \726\ Proposed rule 18f-4(a)(6)(i). The fund would be required 
to maintain this record for a period of not less than five years 
(the first two years in an easily accessible place) following each 
determination.
    \727\ This estimate is based on the following calculation: 0.6 
hours x 3,831 funds = 2,299 hours.
    \728\ This estimate is based on the following calculation: 0.3 
hours x $57 (hourly rate for a general clerk) = $17; 0.3 hours x $87 
(hourly rate for a senior computer operator) = $26. $17 + $26 = $43; 
$43 x 3,831 funds = $164,733.
---------------------------------------------------------------------------

    In addition, a fund that relies on the proposed rule also would be 
subject to an ongoing requirement to maintain a written record 
demonstrating that immediately after the fund entered into any senior 
securities transaction, the fund complied with its applicable portfolio 
limit, with such record reflecting the fund's aggregate exposure, the 
value of its net assets and, if applicable, the fund's full portfolio 
VaR and its securities VaR.\729\ We estimate that each fund would incur 
an average burden of 50 hours to retain these

[[Page 80982]]

records.\730\ We therefore estimate that the total annual burden for 
maintaining these records would be 191,550 hours.\731\ We also estimate 
that each fund would incur an annual time cost of approximately $3,600, 
and a total annual time cost for all funds of approximately 
$13,791,600.\732\ We estimate that there are no external costs 
associated with this collection of information.\733\
---------------------------------------------------------------------------

    \729\ Proposed rule 18f-4(a)(6)(iv). The fund would be required 
to maintain this record for a period of not less than five years 
(the first two years in an easily accessible place) following each 
senior securities transaction. This written record requirement would 
also apply to a fund's monitoring of the 50% portfolio limit for 
purposes of the derivatives risk management program requirement 
(discussed below).
    \730\ We assume for purposes of this estimate that funds would 
implement automated processes for creating a written record of their 
compliance with the applicable portfolio limit immediately after 
entering into any senior securities transaction, and that a fund 
would enter into at least one derivatives transaction or other 
senior securities transaction per trading day. Based on 250 trading 
days per year, and assuming 0.1 hours per trading day spent by a 
general clerk and 0.1 hours per trading day spent by a senior 
computer operator, we estimate the annual time cost to be (0.1 x 
250) = 25 hours per year per fund for each general clerk and senior 
computer operator.
    \731\ This estimate is based on the following calculations: 50 
hours x 3,831 funds = 191,550 hours.
    \732\ This estimate is based on the following calculation: 25 
hours x $57 (hourly rate for a general clerk) = $1,425; 25 hours x 
$87 (hourly rate for a senior computer operator) = $2,175. $1,425 + 
$2,175 = $3,600; $3,600 x 3,831 funds = $13,791,600.
    \733\ Except as provided for above, we have estimated (both for 
purposes of the economic analysis and the PRA) the cost burdens 
associated with the proposed rule using a fund's internal resources, 
rather than third party solutions which may develop in the future. 
See, e.g., supra text in paragraph following note 573.
---------------------------------------------------------------------------

    Accordingly, we estimate that, for recordkeeping associated with a 
fund's portfolio limitations, including maintenance of a record of a 
board's initial determination of the fund's portfolio limit and 
maintenance of written records demonstrating the fund's ongoing 
compliance with applicable portfolio limits, the time burden per fund 
would be 50.6 hours and the time cost per fund would be $3,638.\734\ We 
therefore estimate that the total burden for maintaining such records 
would be 193,849 hours, at an aggregate time cost of $13,937,178.\735\
---------------------------------------------------------------------------

    \734\ This estimate is based on the following calculations: 0.6 
hours (maintenance of a record of board's initial determination of 
fund's portfolio limit) + 50 hours (maintenance of written records 
demonstrating fund's compliance with applicable portfolio limits) = 
50.6 hours; $38 (maintenance of a record of a board's initial 
determination of a fund's portfolio limit) + $3,600 (maintenance of 
written records demonstrating funds' compliance with applicable 
portfolio limits) = $3,638.
    \735\ This estimate is based on the following calculations: 50.6 
hours x 3,831 funds = 193,849 hours; $3,638 x 3,831 funds = 
$13,937,178.
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Estimated Total Burden
    Amortized over a three-year time period, the hour burdens and time 
costs for collections of information associated with portfolio 
limitations under proposed rule 18f-4, including the burdens associated 
with (a) board review and approval of funds' initial portfolio 
limitations, (b) maintenance of records of initial board determinations 
of funds' portfolio limits, and (c) maintenance of written records 
demonstrating funds' compliance with applicable portfolio limits, are 
estimated to result in an aggregate average annual hour burden of 
196,147 hours and aggregate time cost of $20,386,028.\736\ In addition 
to the internal costs described above, we also estimate that each fund 
would incur a one-time average external cost of $800.
---------------------------------------------------------------------------

    \736\ These estimates are based on the following calculations: 
(11,493 hours (year 1) + 2,299 hours (year 1) + (3 x 191,550 hours) 
(years 1, 2 and 3)) / 3 = 196,147 hours; ($19,618,551 (year 1) + 
($164,733 (year 1) + (3 x $13,791,600)) / 3 = $20,386,028.
---------------------------------------------------------------------------

2. Asset Segregation: Derivatives Transactions
    Proposed rule 18f-4 would require a fund that enters into 
derivatives transactions \737\ in reliance on the rule to manage the 
risks associated with its derivatives transactions by maintaining an 
amount of specified assets (defined in the proposed rule as 
``qualifying coverage assets'') designed to enable the fund to meet its 
obligations arising from such transactions.\738\ A fund would be 
required to identify on the books and records of the fund, at least 
once each business day, qualifying coverage assets with a value equal 
to at least the fund's aggregate ``mark-to-market coverage amounts'' 
and ``risk-based coverage amounts.'' \739\ The mark-to-market coverage 
amount would mean the amount that would be payable by the fund, for 
each derivatives transaction, if the fund were to exit the derivatives 
transaction at the time of determination.\740\ The risk-based coverage 
amount would mean the potential amount payable by the fund if the fund 
were to exit the derivatives transaction under stressed conditions, 
determined in accordance with board-approved policies and 
procedures.\741\ A fund would be permitted to adjust these coverage 
amounts, at its discretion, if the fund has entered into certain 
netting agreements, or the fund has posted variation margin (for the 
mark-to-market coverage amount) or initial margin (for the risk-based 
coverage amount), or collateral for such amounts payable by the 
fund.\742\ A fund would be required to have policies and procedures 
approved by its board of directors (and maintained by the fund in an 
easily accessible place \743\) that are reasonably designed to provide 
for the fund's maintenance of qualifying coverage assets.\744\
---------------------------------------------------------------------------

    \737\ We include in this analysis a fund that enters into 
derivatives transactions, as well as financial commitment 
transactions and other senior securities. We discuss estimated PRA 
costs for a fund that enters solely into financial commitment 
transactions below.
    \738\ Proposed rule 18f-4(a)(2), (c)(6), (c)(8), (c)(9).
    \739\ Proposed rule 18f-4(a)(2). Qualifying coverage assets for 
derivatives transactions would generally mean cash and cash 
equivalents. The exceptions to the requirement to maintain cash and 
cash equivalents are for derivatives transactions under which a fund 
may satisfy its obligation by delivering a particular asset, in 
which case that particular asset would be a qualifying coverage 
asset. See proposed rule 18f-4(c)(8).
    \740\ Proposed rule 18f-4(c)(6).
    \741\ Proposed rule 18f-4(c)(9).
    \742\ Proposed rules 18f-4(c)(6)(i), (ii); 18f-4(c)(9)(i), (ii).
    \743\ A fund must maintain a written copy of the fund's policies 
and procedures, approved by the fund's board, in effect, or at any 
time within the past five years were in effect, in an easily 
accessible place. Proposed rule 18f-4(a)(6)(ii).
    \744\ Proposed rule 18f-4(a)(5)(ii).
---------------------------------------------------------------------------

    As discussed above in section IV.D.3, DERA staff analysis shows 
that 68% of all sampled funds do not appear to use derivatives 
transactions (or if they do, do not appear to use them to a material 
extent). Staff estimates that the remaining 32% of funds (3,831 funds) 
and no BDCs will seek to rely on this aspect of proposed rule 18f-4, 
and therefore comply with the asset segregation requirements. These 
funds would be subject to the collections of information described 
below with respect to asset segregation requirements.
Identification of Qualifying Coverage Assets
    The qualifying coverage assets requirement would subject funds to a 
collection of information insofar as they are required to make a daily 
identification on a fund's books and records of its maintenance of 
qualifying coverage assets, including determinations of the mark-to-
market and risk-based coverage amounts. Although we expect that these 
activities would generally be automated and/or routine, our estimates 
below include estimates for anticipated time costs by a fund's staff to 
make manual adjustments to these determinations (e.g., to reflect 
netting agreements, or account for assets posted as initial or 
variation margin or collateral). The cost estimates below also reflect 
the fact that, with regard to the mark-to-market coverage amount, we 
believe that funds already calculate their liability under derivatives 
transactions on a daily basis for various other purposes, including to 
satisfy variation margin requirements and to determine the fund's NAV. 
Funds also calculate their liability under derivatives transactions on 
a periodic

[[Page 80983]]

basis in order to provide financial statements to investors. We 
generally expect that funds would be able to use these calculations to 
determine their mark-to-market coverage amounts.
    We do not expect that this aspect of the proposed rule will impose 
any initial, one-time ``collection of information'' burdens on funds. 
We do estimate, however, that each fund would incur an average annual 
burden of 110 hours associated with the identification of qualifying 
coverage assets. We therefore estimate that the total annual burden for 
the identification of qualifying coverage assets would be 421,410 
hours.\745\ We also estimate that each fund would incur an annual time 
cost of approximately $11,530 to identify qualifying coverage assets, 
for a total annual time cost for all funds of approximately 
$44,171,430.\746\ We estimate that there are no external costs 
associated with this collection of information.\747\
---------------------------------------------------------------------------

    \745\ This estimate is based on the following calculation: 110 
hours x 3,831 funds = 421,410 hours.
    \746\ This estimate is based on the following calculations: 100 
hours x $87 (hourly rate for a senior computer operator) = $8,700; 
10 hours x $283 (hourly rate for compliance manager) = $2,830. 
$8,700 + $2,830 = $11,530; $11,530 x 3,831 funds = $44,171,430.
    \747\ See supra note 733.
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Board-Approved Policies & Procedures
    Proposed rule 18f-4 would require funds to have written policies 
and procedures reasonably designed to provide for the fund's 
maintenance of qualifying coverage assets. For purposes of this PRA 
analysis, we estimate that a fund would incur a one-time average burden 
of 15 hours associated with documenting its policies and procedures. 
The proposed rule would also require that the fund's board approve such 
policies and procedures and we estimate a one-time burden of 1 hour per 
fund associated with fund boards' review and approval of its policies 
and procedures. Amortized over a three-year period, this would be an 
annual burden per fund of approximately 5.3 hours. We estimate that the 
total one-time burden for the initial documentation, and board approval 
of, written policies and procedures to provide for a fund's maintenance 
of qualifying coverage assets would be 61,296 hours.\748\ We also 
estimate that each fund would incur a time cost of approximately 
$6,291, and a total initial time cost for all funds of approximately 
$38,593,494.\749\ We estimate that there are no ongoing annual costs 
associated with this collection of information. In addition to the 
internal costs described above, we also estimate that each fund would 
incur a one-time average external cost of $800 associated with a fund 
board consulting its outside legal counsel with regard to the required 
board approvals.\750\
---------------------------------------------------------------------------

    \748\ This estimate is based on the following calculation: 16 
hours x 3,831 funds = 61,296 hours.
    \749\ This estimate is based on the following calculations: 7.5 
hours x $301 (hourly rate for a senior portfolio manager) = $2,258; 
7.5 hours x $455.5 (blended hourly rate for assistant general 
counsel ($426) and chief compliance officer ($485)) = $3,416; 1 hour 
x $4,400 (hourly rate for a board of 8 directors) = $4,400. $2,258 + 
$3,416 + $4,400= $10,074; $10,074 x 3,831 funds = $38,593,494.
    \750\ This estimate is based on the following calculation: 2 
hours x $400 (hourly rate for outside legal services) = $800.
---------------------------------------------------------------------------

Recordkeeping
    The proposed rule would require a fund to maintain a written copy 
of the policies and procedures approved by the fund's board of 
directors that are in effect, or at any time within the past five years 
were in effect, in an easily accessible place. We estimate a one-time 
burden (and no ongoing annual burden) of 1 hour per fund associated 
with maintaining a written copy of the fund's board-approved policies 
and procedures or, amortized over a three-year period, a burden of 
approximately 0.3 hours annually per fund. We therefore estimate that 
the total one-time burden for maintaining this record would be 3,831 
hours.\751\ We also estimate that each fund would incur a time cost of 
approximately $57, and a total initial time cost for all funds of 
approximately $218,367.\752\ We estimate that there are no external 
costs associated with this collection of information.
---------------------------------------------------------------------------

    \751\ This estimate is based on the following calculation: 1 
hour x 3,831 funds = 3,831 hours.
    \752\ This estimate is based on the following calculation: 1 
hour x $57 (hourly rate for a general clerk) = $57. $57 x 3,831 
funds = $218,367.
---------------------------------------------------------------------------

    In addition, a fund that relies on the proposed rule also would be 
subject to an ongoing requirement to maintain a written record 
reflecting the mark-to-market coverage amount and risk-based coverage 
amount for each derivatives transaction entered into by the fund and 
identifying the associated qualifying coverage assets, as determined by 
the fund at least once each business day, for a period of not less than 
five years (the first two years in an easily accessible place).\753\ We 
estimate that each fund would incur an average annual burden of 50 
hours to retain these records.\754\ We therefore estimate that the 
total annual burden for maintaining these records would be 191,550 
hours.\755\ We also estimate that each fund would incur an annual time 
cost of approximately $3,600, and a total annual time cost for all 
funds of approximately $13,791,600.\756\ We estimate that there are no 
external costs associated with this collection of information.
---------------------------------------------------------------------------

    \753\ Proposed rule 18f-4(a)(6)(v).
    \754\ We assume for purposes of this estimate that funds would 
implement automated processes for creating a written record of their 
compliance with the qualifying coverage asset requirements and that 
a fund would enter into at least one derivatives transaction per 
trading day. Based on 250 trading days per year, and assuming 0.1 
hours per trading day spent by a general clerk and 0.1 hours per 
trading day spent by a senior computer operator, we estimate the 
annual time cost to be (0.1 x 250) = 25 hours per year per fund for 
each general clerk and senior computer operator.
    \755\ This estimate is based on the following calculations: 50 
hours x 3,831 funds = 191,550 hours.
    \756\ This estimate is based on the following calculation: 25 
hours x $57 (hourly rate for a general clerk) = $1,425; 25 hours x 
$87 (hourly rate for a senior computer operator) = $2,175. $1,425 + 
$2,175 = $3,600; $3,600 x 3,831 funds = $13,791,600.
---------------------------------------------------------------------------

Estimated Total Burden
    Amortized over a three-year time period, the hour burdens and time 
costs for collections of information associated with the asset 
segregation requirement for derivatives transactions under proposed 
rule 18f-4, including the burdens associated with (a) identifying 
qualifying coverage assets; (b) documenting board-approved policies and 
procedures; and (c) maintaining required records, are estimated to 
result in an aggregate average annual hour burden of 634,669 hours and 
aggregate time costs of $70,900,317.\757\ In addition to the internal 
costs described above, we also estimate that each fund would incur a 
one-time average external cost of $800.
---------------------------------------------------------------------------

    \757\ These estimates are based on the following calculations: 
((3 x 421,410 hours) (years 1, 2 and 3) + 61,296 (year 1) + 3,831 
(year 1) + (3 x 191,550 hours) (years 1, 2 and 3)) / 3 = 634,669 
hours; ((3 x $44,171,430) + ($38,593,494 (year 1)) + ($218,367 (year 
1)) + (3 x $13,791,600) (years 1, 2, and 3)) / 3 = $70,900,317.
---------------------------------------------------------------------------

3. Asset Segregation: Financial Commitment Transactions
    Proposed rule 18f-4 would require a fund that enters into financial 
commitment transactions in reliance on the rule to similarly maintain 
qualifying coverage assets designed to enable the fund to meet its 
obligations arising from such transactions. A fund would be required to 
identify on the books and records of the fund, at least once each 
business day, qualifying coverage assets with a value equal to at least 
the fund's aggregate financial commitment obligations.\758\ Financial 
commitment

[[Page 80984]]

obligations would mean the amount of cash or other assets that the fund 
is conditionally or unconditionally obligated to pay or deliver under a 
financial commitment transaction (as defined in the proposed 
rule).\759\ A fund that enters solely into financial commitment 
transactions would, as described above for a fund that enters into 
derivatives transactions, be required to have policies and procedures 
approved by its board of directors (and maintained by the fund in an 
easily accessible place) that are reasonably designed to provide for 
the fund's maintenance of qualifying coverage assets.\760\
---------------------------------------------------------------------------

    \758\ Proposed rule 18f-4(b)(1).
    \759\ Proposed rule 18f-4(c)(5) (noting, that where the fund is 
conditionally or unconditionally obligated to deliver a particular 
asset, the financial commitment obligation shall be the value of the 
asset, determined at least once each business day).
    \760\ Proposed rule 18f-4(b)(2)(3).
---------------------------------------------------------------------------

    As discussed above in section IV.D.5, DERA staff analysis shows 
that approximately 3% of all sampled funds enter into at least some 
financial commitment transactions, but do not use derivatives 
transactions. Staff estimates, therefore, that 3% of funds (359 funds) 
would comply with the asset segregation requirements in proposed rule 
18f-4 applicable to financial commitment transactions and would not 
also be complying with the asset segregation and other requirements 
applicable to derivatives transactions. In addition, staff estimates 
that 537 money market funds and 88 BDCs may engage in certain types of 
financial commitment transactions. In sum, staff estimates that 984 
funds would comply with the asset segregation requirements applicable 
to financial commitment transactions and incur the same costs we 
estimate above (with regard to funds that engage in derivatives 
transactions). These funds would be subject to the collections of 
information described below.
Identification of Qualifying Coverage Assets
    Similar to the requirement applicable to a fund that enters into 
derivatives transactions (discussed above), a fund that enters solely 
into financial commitment transactions would, under the proposed rule, 
incur operational costs to establish and implement systems in order to 
comply with the proposed asset segregation requirements, including the 
proposed requirement that a fund maintain qualifying coverage assets, 
identified on the books and records of the fund, at least once each 
business day. We believe that the activities related to these 
requirements are largely the same, whether applicable to a fund that 
enters into derivatives transactions, or financial commitment 
transactions. Accordingly, we estimate the same costs to a fund that 
enters solely into financial commitment transactions as the asset 
segregation costs we estimate above for funds that enter into 
derivatives transactions.
    We estimate that each fund would incur an average annual burden of 
110 hours (and no initial one-time burdens) associated with the 
identification of qualifying coverage assets. We therefore estimate 
that the total annual burden for the identification of qualifying 
coverage assets would be 108,240 hours.\761\ We also estimate that each 
fund would incur an ongoing annual time cost of approximately $11,530 
to identify qualifying coverage assets, for a total ongoing annual time 
cost for all funds of approximately $11,345,520.\762\ We estimate that 
there are no external costs associated with this collection of 
information.
---------------------------------------------------------------------------

    \761\ This estimate is based on the following calculation: 110 
hours x 984 funds = 108,240 hours.
    \762\ This estimate is based on the following calculations: 100 
hours x $87 (hourly rate for a senior computer operator) = $8,700; 
10 hours x $283 (hourly rate for compliance manager) = $2,830. 
$8,700 + $2,830 = $11,530; $11,530 x 984 funds = $11,345,520.
---------------------------------------------------------------------------

Board-Approved Policies & Procedures
    A fund that enters solely into financial commitment transactions, 
like a fund that enters into derivatives transactions, would be 
required under the proposed rule to have board-approved policies and 
procedures regarding the maintenance of qualifying coverage assets. 
Accordingly, we estimate that a fund would incur a one-time average 
burden of 15 hours associated with documenting its policies and 
procedures. The proposed rule would also require that the fund's board 
approve such policies and procedures and we estimate a one-time burden 
of 1 hour per fund associated with fund boards' review and approval of 
its policies and procedures. Amortized over a three-year period, this 
would be an annual burden per fund of approximately 5.3 hours. We 
estimate that the total one-time burden for the initial documentation, 
and board approval of, written policies and procedures to provide for a 
fund's maintenance of qualifying coverage assets would be 15,744 
hours.\763\ We also estimate that each fund would incur a time cost of 
approximately $6,291, and a total initial time cost for all funds of 
approximately $9,912,816.\764\ We estimate that there are no annual 
time costs associated with this collection of information. In addition 
to the internal costs described above, we also estimate that each fund 
would incur a one-time average external cost of $800 associated with a 
fund board consulting its outside legal counsel with regard to the 
required board approvals.\765\
---------------------------------------------------------------------------

    \763\ This estimate is based on the following calculation: 16 
hours x 984 funds = 15,744 hours.
    \764\ This estimate is based on the following calculations: 7.5 
hours x $301 (hourly rate for a senior portfolio manager) = $2,258; 
7.5 hours x $455.5 (blended hourly rate for assistant general 
counsel ($426) and chief compliance officer ($485)) = $3,416; 1 hour 
x $4,400 (hourly rate for a board of 8 directors) = $4,400. $2,258 + 
$3,416 + $4,400 = $10,074; $10,074 x 984 funds = $9,912,816.
    \765\ This estimate is based on the following calculation: 2 
hours x $400 (hourly rate for outside legal services) = $800.
---------------------------------------------------------------------------

Recordkeeping
    A fund that enters solely into financial commitment transactions 
would also be required under the proposed rule to retain a written copy 
of the fund's board-approved policies and procedures regarding the 
maintenance of qualifying coverage assets. This requirement also 
applies to funds that enter into derivatives transactions. Accordingly, 
as discussed above for the recordkeeping burdens associated with asset 
segregation for derivatives transactions, we estimate a one-time burden 
(and no annual burden) of 1 hour per fund associated with maintaining a 
written copy of the fund's board-approved policies and procedures or, 
amortized over a three-year period, a burden of approximately 0.3 hours 
annually per fund. We therefore estimate that the total one-time burden 
for maintaining this record would be 984 hours.\766\ We also estimate 
that each fund would incur a time cost of approximately $57, and a 
total initial time cost for all funds of approximately $56,088.\767\ We 
estimate that there are no external costs associated with this 
collection of information.
---------------------------------------------------------------------------

    \766\ This estimate is based on the following calculation: 1 
hour x 984 funds = 984 hours.
    \767\ This estimate is based on the following calculation: 1 
hour x $57 (hourly rate for a general clerk) = $57. $57 x 984 funds 
= $56,088.
---------------------------------------------------------------------------

    In addition, a fund that relies on the proposed rule also would be 
subject to an ongoing requirement to maintain a written record 
reflecting the amount of each financial commitment obligation 
associated with each financial commitment transaction entered into by 
the fund and identifying the associated qualifying coverage assets, as 
determined by the fund at least once each business day, for a period of 
not less than five years (the first two years in an easily accessible 
place).\768\ We

[[Page 80985]]

estimate that each fund would incur an average annual burden of 50 
hours to retain these records.\769\ We therefore estimate that the 
total annual hour burden for maintaining these records would be 49,200 
hours.\770\ We also estimate that each fund would incur an annual time 
cost of approximately $3,600, and a total annual time cost for all 
funds of approximately $3,542,400.\771\ We estimate that there are no 
external costs associated with this collection of information.
---------------------------------------------------------------------------

    \768\ Proposed rule 18f-4(b)(3)(ii).
    \769\ We assume for purposes of this estimate that funds would 
implement automated processes for creating a written record of their 
compliance with the qualifying coverage asset requirements and that 
a fund would enter into at least one financial commitment 
transaction per trading day. Based on 250 trading days per year, and 
assuming 0.1 hours per trading day spent by a general clerk and 0.1 
hours per trading day spent by a senior computer operator, we 
estimate the annual time cost to be (0.1 x 250) = 25 hours per year 
per fund for each general clerk and senior computer operator.
    \770\ This estimate is based on the following calculations: 50 
hours x 984 funds = 49,200 hours.
    \771\ This estimate is based on the following calculation: 25 
hours x $57 (hourly rate for a general clerk) = $1,425; 25 hours x 
$87 (hourly rate for a senior computer operator) = $2,175. $1,425 + 
$2,175 = $3,600; $3,600 x 984 funds = $3,542,400.
---------------------------------------------------------------------------

Estimated Total Burden
    Amortized over a three-year time period, the hour burdens and time 
costs for collections of information associated with the asset 
segregation requirement for financial commitment transactions under 
proposed rule 18f-4, including the burdens associated with (a) 
identifying qualifying coverage assets; (b) documenting board-approved 
policies and procedures; and (c) maintaining required records, are 
estimated to result in an aggregate average annual hour burden of 
163,016 hours and aggregate time costs of $18,210,888.\772\ In addition 
to the internal costs described above, we also estimate that each fund 
would incur a one-time average external cost of $800.
---------------------------------------------------------------------------

    \772\ These estimates are based on the following calculations: 
((3 x 108,240 hours) (years 1, 2 and 3) + 15,744 (year 1) + 984 
(year 1) + (3 x 49,200) (years 1, 2 and 3)) / 3 = 163,016 hours; ((3 
x $11,345,520) (years 1, 2 and 3) + ($9,912,816 (year 1)) + ($56,088 
(year 1)) + (3 x $3,542,400) (years 1, 2 and 3)) / 3 = $18,210,888.
---------------------------------------------------------------------------

4. Derivatives Risk Management Program
    Proposed rule 18f-4 would require that a fund that engages in more 
than a limited amount of derivatives transactions, or that uses complex 
derivatives transactions (as defined in the proposed rule), to adopt 
and implement a derivatives risk management program.\773\ This risk 
management program would require a fund to adopt and implement policies 
and procedures reasonably designed to assess and manage the risks of 
the fund's derivatives transactions, reasonably segregate the functions 
associated with the program from the portfolio management function of 
the fund, and periodically review and update the program at least 
annually.\774\ The proposed rule would also require a fund to designate 
a derivatives risk manager responsible for administering the program 
and require that the risk manager, no less frequently than quarterly, 
prepare a written report that describes the adequacy and effectiveness 
of the fund's risk management program.\775\ A fund's board of directors 
must also (1) approve the fund's derivatives risk management program, 
including any material changes to the program; (2) approve the fund's 
designation of the fund's derivatives risk manager (who cannot be a 
portfolio manager of the fund); and (3) review, no less frequently than 
quarterly, the written report prepared by the fund's derivatives risk 
manager that describes the adequacy and effectiveness of the fund's 
risk management program.\776\ Finally, proposed rule 18f-4 would impose 
certain recordkeeping requirements related to the derivatives risk 
management program (as described below).
---------------------------------------------------------------------------

    \773\ A derivatives risk management program would not be 
required if the fund complies with a portfolio limitation under 
which, immediately after entering into any derivatives transaction, 
the fund's aggregate exposure associated with the fund's derivatives 
transactions does not exceed 50% of the value of the fund's net 
assets, and the fund does not use ``complex derivatives'' (as 
defined in proposed rule 18f-4(c)(1)).
    \774\ See proposed rule 18f-4(a)(3)(i)(A) through (D).
    \775\ See proposed rule 18f-4(a)(3)(ii)(B) and (C).
    \776\ Proposed rule 18f-4(a)(3)(ii).
---------------------------------------------------------------------------

    As discussed above in section IV.D.4, DERA staff analysis shows 
that approximately 10% of all sampled funds had aggregate exposure from 
derivatives transactions high enough (i.e., aggregate exposure of 50% 
of net assets or greater) to require that they establish a derivatives 
risk management program under the proposed rule. The DERA staff 
analysis also shows an additional approximately 4% of funds had 
aggregate exposure of between 25-50% of net assets. Commission staff 
estimates, therefore, that approximately 14% of funds (1,676 funds 
\777\) and no BDCs would be required to establish a derivatives risk 
management program. These funds would be subject to the collections of 
information described below with respect to the derivatives risk 
management program provision.
---------------------------------------------------------------------------

    \777\ This estimate is based on the following calculation: 
11,973 funds x 14% = 1,676 funds. See supra note 578.
---------------------------------------------------------------------------

Establishing a Derivatives Risk Management Program
    As discussed above in section IV.D.4, we estimated that each fund 
would incur one-time costs to establish and implement a derivatives 
risk management program in compliance with proposed rule 18f-4, as well 
as ongoing program-related costs. For purposes of the PRA analysis, we 
estimate that each fund would incur an average initial burden of 30 
hours associated with establishing a derivatives risk management 
program, including (1) adopting and implementing (including 
documenting) policies and procedures reasonably designed to assess and 
manage the risks of the fund's derivatives transactions and designating 
a derivatives risk manager (24 hours); and (2) obtaining initial board 
approval of the derivatives risk management program and the designation 
of the fund's derivatives risk manager (6 hours). Amortized over a 
three-year period, this would be an annual burden per fund of 10 hours. 
Accordingly, we estimate that the total average annual initial burden 
for establishing a derivatives risk management program would be 50,280 
hours.\778\ We also estimate that each fund would incur an initial time 
cost of $27,346 in relation to this hour burden, for a total initial 
time cost for all funds of approximately $45,831,896.\779\ In addition 
to the internal costs described above, we also estimate that each fund 
would incur a one-time average external cost of $1,600 associated with 
a fund board consulting its outside legal counsel with regard to the 
required board approval.\780\
---------------------------------------------------------------------------

    \778\ This estimate is based on the following calculation: 30 
hours x 1,676 funds = 50,280 hours.
    \779\ This estimate is based on the following calculations: 12 
hours x $301 (hourly rate for a senior portfolio manager) = $3,612; 
12 hours x $455.5 (blended hourly rate for assistant general counsel 
($426) and chief compliance officer ($485) = $5,466; 4 hours x 
$4,400 (hourly rate for a board of 8 directors) = $17,600; 2 hours 
(for a fund attorney's time to prepare materials for the board's 
determinations) x $334 (hourly rate for a compliance attorney) = 
$668. $3,612 + $5,466 + $17,600 + $668 = $27,346; $27,346 x 1,676 
funds = $45,831,896.
    \780\ This estimate is based on the following calculation: 4 
hours x $400 (hourly rate for outside legal services) = $1,600.
---------------------------------------------------------------------------

    In addition to the initial burden, we estimate that each fund would 
incur an average annual burden of 38 hours associated with its 
derivatives risk management program, including that: (1) The fund 
review and update its risk management program at least annually (8 
hours); (2) the derivatives risk

[[Page 80986]]

manager prepare, on a quarterly basis, a written report that describes 
the adequacy and effectiveness of the fund's risk management program 
(24 hours \781\); and (3) the fund's board review, on a quarterly 
basis, the written report prepared by the fund's derivatives risk 
manager that describes the adequacy and effectiveness of the fund's 
risk management program, and approve any material changes to the 
derivatives risk management program (6 hours). Accordingly, we estimate 
that the total average annual burden for establishing a derivatives 
risk management program would be 63,688 hours.\782\ We also estimate 
that each fund would incur an annual time cost of $41,066, for a total 
annual time cost for all funds of approximately $68,826,616.\783\ In 
addition to the internal costs described above, we also estimate that 
each fund would incur average annual external costs of $3,200 
associated with a fund board's consulting its outside legal counsel 
with regard to quarterly reviews of the reports prepared by the fund's 
derivatives risk manager.\784\
---------------------------------------------------------------------------

    \781\ The estimate is based on the following calculation: 4 
quarterly reports x 6 hours to prepare each written report = 24 
hours.
    \782\ This estimate is based on the following calculation: 38 
hours x 1,676 funds = 63,688 hours.
    \783\ This estimate is based on the following calculations: 
Reviewing/updating the risk management program (8 hours): 4 hours x 
$301 (hourly rate for a senior portfolio manager) = $1,204; 4 hours 
x $455.5 (blended hourly rate for assistant general counsel ($426) 
and chief compliance officer ($485) = $1,822; Preparing quarterly 
reports by the derivatives risk manager (6 hours x 4 reports = 24 
hours): 24 hours x $485 (hourly rate for chief compliance officer 
functioning as proposed derivatives risk manager) = $11,640; 
Reviewing quarterly reports by the fund's board (1.5 hours x 4 
reports = 6 hours): 6 hours x $4,400 (hourly rate for a board of 8 
directors) = $26,400. $1,204 + $1,822 + $11,640 + $26,400 = 41,066; 
$41,066 x 1,676 funds = $68,826,616.
    \784\ This estimate is based on the following calculation: 8 
hours (2 hours x 4 quarterly reviews) x $400 (hourly rate for 
outside legal services) = $3,200.
---------------------------------------------------------------------------

Recordkeeping
    Proposed rule 18f-4 would require a fund that adopts and implements 
a derivatives risk management program to maintain: (1) A written copy 
of the policies and procedures adopted by the fund (as required in 
proposed rule 18f-4(a)(3)) that are in effect, or any time within the 
past five years were in effect, in an easily accessible place; (2) 
copies of any materials provided to the board of directors in 
connection with its approval of the derivatives risk management 
program, including any material changes to the program, and any written 
reports provided to the board relating to the derivatives risk 
management program, for at least five years after the end of the fiscal 
year in which the documents were provided (the first two years in an 
easily accessible place); and (3) records documenting the periodic 
reviews and updates required under proposed rule 18f-4(a)(3)(i)(D), for 
a period of not less than five years (the first two years in an easily 
accessible place) following each review or update.
    We estimate that each fund would incur an annual average burden of 
4 hours to retain these records.\785\ We therefore estimate that the 
total annual burden for maintaining these records would be 6,704 
hours.\786\ We also estimate that each fund would incur an annual time 
cost of approximately $288, and a total annual time cost for all funds 
of approximately $482,688 with respect to this hourly burden.\787\ We 
estimate that there are no external costs associated with this 
collection of information.
---------------------------------------------------------------------------

    \785\ We estimate 2 hours spent by a general clerk and 2 hours 
spent by a senior computer operator.
    \786\ This estimate is based on the following calculation: 4 
hours x 1,676 funds = 6,704 hours.
    \787\ This estimate is based on the following calculation: 2 
hours x $57 (hourly rate for a general clerk) = $114; 2 hours x $87 
(hourly rate for a senior computer operator) = $174. $114 + $174 = 
$288; $288 x 1,676 funds = $482,688.
---------------------------------------------------------------------------

Estimated Total Burden
    Amortized over a three-year time period, the hour burdens and time 
costs for collections of information associated with the derivatives 
risk management program under proposed rule 18f-4, including the 
burdens associated with (a) establishing a derivatives risk management 
program; and (b) maintaining required records, are estimated to result 
in an aggregate average annual hour burden of 65,923 hours and 
aggregate time costs of $61,644,397.\788\ In addition to the internal 
costs described above, we also estimate that each fund would incur a 
one-time average external cost of $1,600 and average annual external 
costs of $3,200.
---------------------------------------------------------------------------

    \788\ These estimates are based on the following calculations: 
(50,280 hours (year 1) + (2 x 63,688 hours) (years 2 and 3) + (3 x 
6,704 hours) (years 1, 2 and 3)) / 3 = 65,923 hours; ($45,831,896 
(year 1) + (2 x $68,826,616) (years 2 and 3) + (3 x $482,688) (years 
1, 2 and 3)) / 3 = $61,644,397.
---------------------------------------------------------------------------

Estimated Total Burden for Rule 18f-4
    Amortized over a three-year time period, the hour burdens and time 
costs for collections of information associated with proposed rule 18f-
4, including the burdens associated with (a) portfolio limitations for 
derivatives transactions; (b) asset segregation for derivatives 
transactions; (c) asset segregation for financial commitment 
transactions; and (d) derivatives risk management program, are 
estimated to result in an aggregate average annual hour burden of 
1,059,755 hours and aggregate time costs of $171,141,630.\789\ In 
addition to the internal costs described above, we also estimate that 
each fund would incur an aggregate average one-time external cost of 
$4,000 and aggregate average annual external costs of $3,200.\790\
---------------------------------------------------------------------------

    \789\ These estimates are based on the following calculations: 
(196,147 hours: portfolio limitations + 634,669 hours: asset 
segregation (derivatives) + 163,016 hours: asset segregation 
(financial commitment transactions) + 65,923 hours (risk management 
program) = 1,059,755 hours; ($20,386,028: portfolio limitations + 
$70,900,317: asset segregation (derivatives) + $18,210,888: asset 
segregation (financial commitment transactions) + $61,644,397 (risk 
management program) = $171,141,630.
    \790\ These estimates are based on the following calculations: 
One-time costs: ($800: portfolio limitations + $800: asset 
segregation (derivatives) + $800: asset segregation (financial 
commitment transactions) + $1,600 (risk management program) = 
$4,000; Annual costs: ($3,200: risk management program).
---------------------------------------------------------------------------

5. Amendments to Form N-PORT
    On May 20, 2015, the Commission proposed Form N-PORT, which would 
require funds to report information within thirty days after the end of 
each month about their monthly portfolio holdings to the Commission in 
a structured data format. Preparing a report on Form N-PORT is 
mandatory and a collection of information under the PRA, and the 
information required by Form N-PORT would be data-tagged in XML format. 
Responses to the reporting requirements would be kept confidential for 
reports filed with respect to the first two months of each quarter; the 
third month of the quarter would not be kept confidential, but made 
public sixty days after the quarter end.
Prior Burden Estimate for Proposed Form N-PORT
    In the Investment Company Reporting Modernization Release, we 
estimated that, for the 35% of funds that would file reports on 
proposed Form N-PORT in house, the per fund aggregate average annual 
hour burden was estimated to be 178 hours per fund, and the average 
cost to license a third-party software solution would be $4,805 per 
fund per year.\791\ For the remaining 65% of funds that would retain 
the services of a third party to prepare and file reports on proposed 
Form N-PORT on the fund's behalf, we estimated the aggregate average 
annual hour burden to be 125 hours per fund, and each fund would

[[Page 80987]]

pay an average fee of $11,440 per fund per year for the services of 
third-party service provider. In sum, we estimated that filing reports 
on proposed Form N-PORT would impose an average total annual hour 
burden of 1,537,572 hours on applicable funds, and all applicable funds 
would incur on average, in the aggregate, external annual costs of 
$97,674,221.\792\
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    \791\ See Investment Company Reporting Modernization Release, 
supra note 138, at nn.736-741, 749 and accompanying text.
    \792\ See id., at nn.748 and 751 and accompanying text.
---------------------------------------------------------------------------

Recordkeeping and Reporting
    We are proposing amendments to Form N-PORT that would require each 
fund that is required to implement a derivatives risk management 
program as required by proposed rule 18f-4(a)(3) to report for options 
and warrants, including options on a derivative, such as 
swaptions.\793\ We believe that the enhanced reporting proposed in 
these amendments would help our staff better monitor price and 
volatility trends, as well as various funds' risk profiles.
---------------------------------------------------------------------------

    \793\ See Item C.11.c.viii of proposed Form N-PORT.
---------------------------------------------------------------------------

Estimated Total Burden
    We estimate that 14% of funds (1,676 funds) \794\ would be required 
to file, on a monthly basis, additional information on Form N-PORT as a 
result of the proposed amendments. We estimate that each fund that 
files reports on Form N-PORT in house (35%, or 587 funds) would require 
an average of approximately 2 burden hours to compile (including review 
of the information), tag, and electronically file the additional 
information in light of the proposed amendments for the first monthly 
filing and an average of approximately 1 burden hour for each 
subsequent monthly filing. Therefore, we estimate the per fund average 
annual hour burden associated with the incremental changes to Form N-
PORT as a result of the proposed amendments for these funds would be an 
additional 13 hours for the first year \795\ and an additional 12 hours 
for each subsequent year.\796\ We further estimate an upper bound on 
the initial annual costs to funds choosing this option of $3,352 per 
fund \797\ with annual ongoing costs of $2,991 per fund.\798\ Amortized 
over three years, the average annual hour burden would be an additional 
12 hours per fund \799\ and the aggregate average annual cost would be 
an additional $3,111 per fund.\800\
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    \794\ Commission staff estimates, therefore, that approximately 
14% of funds (1,676 funds) would be required to establish a 
derivatives risk management program. See supra note 612 and 
accompanying text.
    \795\ The estimate is based on the following calculation: (1 
filing x 2 hours) + (11 filings x 1 hour) = 13 burden hours in the 
first year.
    \796\ This estimate is based on the following calculation: (12 
filings x 1 hour) = 12 burden hours in each subsequent year.
    \797\ This estimate is based upon the following calculations: 
$3,352 in internal costs = ($3,196 = 1 hour x $303/hour for a senior 
programmer) + (2.5 hours x $312/hour for a senior database 
administrator) + (2 hours x $266/hour for a financial reporting 
manager) + (2 hours x $198/hour for a senior accountant) + (2 hours 
x $157/hour for an intermediate accountant) + (2 hours x $301/hour 
for a senior portfolio manager) + (1.5 hours x $283/hour for a 
compliance manager)). See Investment Company Reporting Modernization 
Release, supra note 138, at n.658 and accompanying text.
    \798\ This estimate is based upon the following calculations: 
$2,991 in internal costs = (2.14 hours x $266/hour for a financial 
reporting manager) + (2.14 hours x $198/hour for a senior 
accountant) + (2.14 hours x $157/hour for an intermediate 
accountant) + (2.14 hours x $301/hour for a senior portfolio 
manager) + (1.71 hours x $283/hour for a compliance manager) + (1.71 
hours x $312/hour for a senior database administrator)). See 
Investment Company Reporting Modernization Release, supra note 138, 
at n. 659 and accompanying text.
    \799\ The estimate is based on the following calculation: (13 + 
(12 x 2)) / 3 = 12.33.
    \800\ The estimate is based on the following calculation: 
($3,352 + ($2,991 x 2)) / 3 = $3,111.
---------------------------------------------------------------------------

    We estimate that 65% of funds (1,075 funds) would retain the 
services of a third party to provide data aggregation, validation and/
or filing services as part of the preparation and filing of reports on 
proposed Form N-PORT on the fund's behalf. For these funds, we estimate 
that each fund would require an average of approximately 3 hours to 
compile and review the information with the service provider prior to 
electronically filing the monthly report for the first time and an 
average of .5 burden hours for each subsequent monthly filing. 
Therefore, we estimate the per fund average annual hour burden 
associated with the incremental changes to proposed Form N-PORT as a 
result of the proposed amendments for these funds would be an 
additional 8.5 hours for the first year \801\ and an additional 6 hours 
for each subsequent year.\802\ We further estimate an upper bound on 
the initial costs to funds choosing this option of $2,319 per fund 
\803\ with annual ongoing costs of $1,517 per fund.\804\ Amortized over 
three years, the aggregate average annual hour burden would be an 
additional 7 hours per fund,\805\ with average annual ongoing costs of 
$1,784 per fund.\806\
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    \801\ The estimate is based on the following calculation: (1 
filing x 3 hours) + (11 filings x 0.5 hour) = 8.5 burden hours in 
the first year.
    \802\ This estimate is based on the following calculation: 12 
filings x 0.5 hour = 6 burden hours in each subsequent year.
    \803\ This estimate is based upon the following calculations: 
$2,319 in internal costs = (1.5 hours x $303/hour for a senior 
programmer) + (2.5 hours x $312/hour for a senior database 
administrator) + (.9 hours x $266/hour for a financial reporting 
manager) + (.9 hours x $198/hour for a senior accountant) + (.9 
hours x $157/hour for an intermediate accountant) + (.9 hours x 
$301/hour for a senior portfolio manager) + (.9 hours x $283/hour 
for a compliance manager)). See Investment Company Reporting 
Modernization Release, supra note 138, at n.660 and accompanying 
text.
    \804\ This estimate is based upon the following calculations: 
$1,517 in internal costs = (1 hours x $266/hour for a financial 
reporting manager) + (1 hours x $198/hour for a senior accountant) + 
(1 hours x $157/hour for an intermediate accountant) + (1 hours x 
$301/hour for a senior portfolio manager) + (1 hours x $283/hour for 
a compliance manager) + (1 hours x $312/hour for a senior database 
administrator)). See Investment Company Reporting Modernization 
Release, at n. 661 and accompanying text.
    \805\ The estimate is based on the following calculation: (8.5 + 
(6 x 2)) / 3 = 6.83.
    \806\ The estimate is based on the following calculation: 
($2,319 + ($1,517 x 2)) / 3 = $1,784.
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    In sum, we estimate that the proposed amendments to Form N-PORT 
would impose an average total annual hour burden of an additional 
14,667 hours on applicable funds,\807\ and an average additional total 
cost of $3,768,933 on applicable funds.\808\ We do not anticipate any 
change to the total external annual costs of $97,674,221.\809\
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    \807\ The estimate is based on the following calculation: (587 
funds x 12 hours) + (1,089 funds x 7 hours) = 14,667 hours.
    \808\ The estimate is based on the following calculation: (587 
funds x $3,111) + (1,089 funds x $1,784) = $3,768,933.
    \809\ See Investment Company Reporting Modernization Release, 
supra note 138, at n.751 and accompanying text.
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6. Amendments to Form N-CEN
    On May 20, 2015, we proposed to amend rule 30a-1 to require all 
funds to file reports with certain census-type information on proposed 
Form N-CEN with the Commission on an annual basis. Proposed Form N-CEN 
would be a collection of information under the PRA, and is designed to 
facilitate the Commission's oversight of funds and its ability to 
monitor trends and risks. The collection of information under Form N-
CEN would be mandatory for all funds, and responses would not be kept 
confidential.
Prior Burden Estimate for Proposed Form N-CEN
    In the Investment Company Reporting Modernization Release, the 
staff estimated that the Commission would receive an average of 3,146 
reports per year, based on the number of existing Form N-SAR filers, 
including responses from 2,419 management companies.\810\ We estimated 
that management investment companies would require 33.35 annual burden 
hours in the first

[[Page 80988]]

year \811\ and 13.35 annual burden hours in each subsequent year for 
preparing and filing reports on proposed Form N-CEN. We further 
estimated that all Form N-CEN filers would have an aggregate annual 
paperwork related expenses of $12,395,064 for reports on Form N-
CEN.\812\ We also estimated that all applicable funds would incur, in 
the aggregate, external annual costs of $1,748,637, which would include 
the costs of registering and maintaining LEIs for funds.
---------------------------------------------------------------------------

    \810\ This estimate is based on 2,419 management companies and 
727 UITs filing reports on Form N-SAR as of Dec. 31, 2014. UITs 
would not be required to complete Item 31 of proposed Form N-CEN. 
See General Instruction A of proposed Form N-CEN.
    \811\ This estimate is based on the following calculation: 13.35 
hours for filings + 20 additional hours for the first filing = 33.35 
hours.
    \812\ This estimate is based on annual ongoing burden hour 
estimate of 32,294 burden hours for management companies (2,419 
management companies x 13.35 hours per filing) plus 6,623 burden 
hours for UITs (727 UITs x 9.11 burden hours per filing), for a 
total estimate of 38,917 burden ongoing hours. This was then 
multiplied by a blended hourly wage of $318.50 per hour, $303 per 
hour for Senior Programmers and $334 per hour for compliance 
attorneys, as we believe these employees would commonly be 
responsible for completing reports on proposed Form N-CEN ($318.50 x 
38,917 = $12,395,064.50). See Investment Company Reporting 
Modernization Release, supra note 138, at n.723 and accompanying 
text.
---------------------------------------------------------------------------

Recordkeeping and Reporting
    We are proposing amendments to Form N-CEN to identify whether the 
fund relied upon proposed rule 18f-4. Specifically, the proposed 
amendments to Form N-CEN would require a fund to identify the portfolio 
limitation(s) on which the fund relied during the reporting period.
Estimated Total Burden
    As discussed above, as part of the Investment Company Modernization 
Release proposal, funds would be required to identify if they relied 
upon ten different rules under the Act during the reporting 
period.\813\ In addition to the paperwork costs associated with 
collecting and documenting the requirements under proposed rule 18f-
4,\814\ we believe that there are additional paperwork cost relating to 
identifying the portfolio limitation(s) on which a fund relied on 
proposed Form N-CEN. We therefore estimate that 2,419 funds would incur 
an average annual hour burden of .25 hours for the first year to 
compile (including review of the information), tag, and electronically 
file the additional information in light of the proposed amendments, 
and an average annual hour burden of approximately .1 hours for each 
subsequent year's filing. We further estimate an upper bound on the 
initial costs to funds choosing this option of $80 per fund \815\ with 
annual ongoing costs of $32 per fund.\816\ Amortized over three years, 
the aggregate average annual hour burden would be an additional .15 
hours per fund,\817\ with average annual ongoing costs of $48 per 
fund.\818\
---------------------------------------------------------------------------

    \813\ See supra section IV.D.7.d; see also Item 31 of Proposed 
Form N-CEN.
    \814\ See supra section V.B.1.
    \815\ This estimate is based on multiplying .25 hours by a 
blended hourly wage of $318.50 per hour, $303 per hour for Senior 
Programmers and $334 per hour for compliance attorneys, as we 
believe these employees would commonly be responsible for completing 
reports on proposed Form N-CEN ($318.50 x .25 = $80). See Investment 
Company Reporting Modernization Release, supra note 138, at n.723 
and accompanying text.
    \816\ This estimate is based on multiplying .1 hours by a 
blended hourly wage of $318.50 per hour, $303 per hour for Senior 
Programmers and $334 per hour for compliance attorneys, as we 
believe these employees would commonly be responsible for completing 
reports on proposed Form N-CEN ($318.50 x .1 = $32). See Investment 
Company Reporting Modernization Release, supra note 138, at n.723 
and accompanying text.
    \817\ The estimate is based on the following calculation: (.25 + 
(.1 x 2)) / 3 = .15 hours.
    \818\ The estimate is based on the following calculation: ($80 + 
($32 x 2)) / 3 = $48.
---------------------------------------------------------------------------

    In sum, we estimate that the proposed amendments to Form N-CEN 
would impose an average total annual hour burden of an additional 363 
hours on applicable funds,\819\ and an average additional total cost of 
$115,616 on applicable funds.\820\ We do not anticipate any change to 
the total external annual costs of $1,748,637.\821\
---------------------------------------------------------------------------

    \819\ The estimate is based on the following calculation: (2,419 
funds x .15 hours) = 363 hours.
    \820\ This estimate is based on annual ongoing burden estimate 
of 363 burden hours for management companies (2,419 management 
companies x .15 hours per filing). This was then multiplied by a 
blended hourly wage of $318.50 per hour, $303 per hour for Senior 
Programmers and $334 per hour for compliance attorneys, as we 
believe these employees would commonly be responsible for completing 
reports on proposed Form N-CEN ($318.50 x 363 = $115,616). See 
Investment Company Reporting Modernization Release, supra note 138, 
at n.723 and accompanying text.
    \821\ See Investment Company Reporting Modernization Release, 
supra note 138, at n.769 and accompanying text.
---------------------------------------------------------------------------

C. Request for Comments

    We request comment on whether our estimates for burden hours and 
any external costs as described above are reasonable. Pursuant to 44 
U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (1) 
Evaluate whether the proposed collections of information are necessary 
for the proper performance of the functions of the Commission, 
including whether the information will have practical utility; (2) 
evaluate the accuracy of the Commission's estimate of the burden of the 
proposed collections of information; (3) determine whether there are 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (4) determine whether there are ways to minimize the 
burden of the collections of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology.
    The agency has submitted the proposed collection of information to 
OMB for approval. Persons wishing to submit comments on the collection 
of information requirements of the proposed amendments should direct 
them to the Office of Management and Budget, Attention Desk Officer for 
the Securities and Exchange Commission, Office of Information and 
Regulatory Affairs, Washington, DC 20503, and should send a copy to 
Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F 
Street NE., Washington, DC 20549-1090, with reference to File No. S7-
24-15. OMB is required to make a decision concerning the collections of 
information between 30 and 60 days after publication of this Release; 
therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days after publication of this Release. 
Requests for materials submitted to OMB by the Commission with regard 
to these collections of information should be in writing, refer to File 
No. S7-24-15, and be submitted to the Securities and Exchange 
Commission, Office of FOIA Services, 100 F Street NE., Washington, DC 
20549-2736.

VI. Initial Regulatory Flexibility Act Analysis

    This Initial Regulatory Flexibility Analysis has been prepared in 
accordance with section 3 of the Regulatory Flexibility Act 
(``RFA'').\822\ It relates to proposed rule 18f-4 and proposed 
amendments to Form N-PORT and Form N-CEN.
---------------------------------------------------------------------------

    \822\ 5 U.S.C. 603.
---------------------------------------------------------------------------

A. Reasons for and Objectives of the Proposed Actions

    The use of derivatives by funds implicates certain requirements 
under the Investment Company Act, including section 18 of that 
Act.\823\ In particular, section 18 limits a fund's ability to obtain 
leverage or incur obligations to persons other than the fund's common 
shareholders through the issuance of senior securities, as defined in 
that section.\824\ As discussed above, funds and their counsel, in 
light of the guidance we provided in Release 10666 and provided by our 
staff, have applied the segregated account approach to, or otherwise 
sought to cover, many types

[[Page 80989]]

of transactions other than those specifically addressed in Release 
10666, including various derivatives and other transactions that 
implicate section 18.\825\ We have determined to propose a new approach 
to funds' use of derivatives in order to address the investor 
protection purposes and concerns underlying section 18 of the Act and 
to provide an updated and more comprehensive approach to the regulation 
of funds' use of derivatives transactions in light of the dramatic 
growth in the volume and complexity of the derivatives markets over the 
past two decades and the increased use of derivatives by certain funds.
---------------------------------------------------------------------------

    \823\ See supra section I.
    \824\ See supra section I.
    \825\ See supra section II.B.3.
---------------------------------------------------------------------------

    The Commission is proposing a new exemptive rule and amendments to 
Form N-PORT and Form N-CEN that are designed to provide an updated and 
more comprehensive approach to the regulation of funds' use of 
derivatives, as well as certain other transactions that implicate 
section 18 of the Act, and to more effectively address the purposes and 
concerns underlying section 18.\826\ Specifically, proposed rule 18f-4 
is designed both to impose a limit on the leverage a fund relying on 
the rule may obtain through derivatives transactions and financial 
commitment transactions, and to require the fund to have qualifying 
coverage assets to meet its obligations under those transactions, in 
order to address the undue speculation concern expressed in section 
1(b)(7) and the asset sufficiency concern expressed in section 
1(b)(8).\827\ In addition, the derivatives risk management program 
requirement is designed to complement the proposed rule's portfolio 
limitations and asset segregation requirements by requiring funds 
subject to the requirement to adopt and implement a derivatives risk 
management program that addresses the program elements specified in the 
rule, including the assessment and management of the risks associated 
with the fund's derivatives transactions.\828\ The program would be 
administered by a derivatives risk manager designated by the fund and 
approved by the fund's board of directors.\829\ The amendments to Form 
N-PORT require the reporting of certain risk metrics (vega and gamma) 
but only by those funds that engage in more than a limited amount of 
derivatives transactions, by virtue of meeting the threshold requiring 
them to implement a derivatives risk management program as required by 
proposed rule 18f-4(a)(3). Last, the amendments to Form N-CEN would 
require a fund to identify the portfolio limitation(s) on which the 
fund relied during the reporting period.
---------------------------------------------------------------------------

    \826\ See supra section III.
    \827\ See supra section III.A.
    \828\ See supra section III.A.
    \829\ See supra section III.A.
---------------------------------------------------------------------------

B. Legal Basis

    The Commission is proposing new rule 18f-4 under the authority set 
forth in sections 6(c), 12(a), 31(a), and 38(a) of the Investment 
Company Act of 1940 [15 U.S.C. 80a-6(c), 80a-12(a), 80a-31(a), and 80a-
38(a)]. The Commission is proposing amendments to proposed Form N-PORT 
and Form N-CEN under the authority set forth in sections 8, 30, and 38 
of the Investment Company Act of 1940 [15 U.S.C. 80a-8, 80a-30, 80a-
38].

C. Small Entities Subject to Proposed Rule 18f-4 and Amendments to Form 
N-PORT and Form N-CEN

    An investment company is a small entity if, together with other 
investment companies in the same group of related investment companies, 
it has net assets of $50 million or less as of the end of its most 
recent fiscal year.\830\ Commission staff estimates that, as of June 
2015, approximately 110 open and closed-end funds are small entities. 
We discuss below the percentage of small funds that the staff estimates 
may seek to rely on the proposed rule, and the percentage of small 
funds that may be required to comply with the various aspects of the 
proposed rule.
---------------------------------------------------------------------------

    \830\ See rule 0-10(a) under the Investment Company Act.
---------------------------------------------------------------------------

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

1. Portfolio Limitations for Derivatives Transactions
    Proposed rule 18f-4 would require a fund that engages in 
derivatives transactions in reliance on the rule, including any small 
entities that rely on the rule, to comply with one of two alternative 
portfolio limitations.\831\ A fund that relies on the exposure-based 
portfolio limit would be required to operate so that its aggregate 
exposure under senior securities transactions, measured immediately 
after entering into any such transaction, does not exceed 150% of the 
fund's net assets.\832\ Under the risk-based portfolio limit, a fund 
generally would be required to demonstrate, using a VaR calculation, 
that its derivatives transactions, in the aggregate, result in an 
investment portfolio that is subject to less market risk than if the 
fund did not use such derivatives.\833\ A fund that elects the risk-
based portfolio limitation under the proposed rule would be permitted 
to obtain exposure under its derivatives transactions and other senior 
securities of up to 300% of the fund's net assets.\834\
---------------------------------------------------------------------------

    \831\ Proposed rule 18f-4(a)(1).
    \832\ Proposed rule 18f-4(a)(1)(i).
    \833\ Proposed rule 18f-4(a)(1)(ii).
    \834\ Proposed rule 18f-4(a)(1)(ii).
---------------------------------------------------------------------------

    The proposed rule would require that for a fund relying on the 
rule, a fund's board of directors, including a majority of the 
directors who are not interested persons of the fund, approve which of 
the two alternative portfolio limitations will apply to the fund.\835\ 
In addition, the proposed rule would require a fund to maintain a 
record of each determination made by the fund's board that the fund 
will comply with one of the portfolio limitations under the proposed 
rule, which would include the fund's initial determination as well as a 
record of any determination made by the fund's board to change the 
portfolio limitation.\836\ The fund also would be required to maintain 
a written record demonstrating that immediately after the fund entered 
into any senior securities transaction, the fund complied with the 
portfolio limitation applicable to the fund immediately after entering 
into the senior securities transaction, reflecting the fund's aggregate 
exposure, the value of the fund's net assets and, if applicable, the 
fund's full portfolio VaR and its securities VaR.\837\
---------------------------------------------------------------------------

    \835\ Proposed rule 18f-4(a)(5)(i).
    \836\ See proposed rule 18f-4(a)(6)(i). The fund would be 
required to maintain this record for a period of not less than five 
years (the first two years in an easily accessible place) following 
each determination.
    \837\ See proposed rule 18f-4(a)(6)(iv). The fund would be 
required to maintain this record for a period of not less than five 
years (the first two years in an easily accessible place) following 
each senior securities transaction entered into by the fund.
---------------------------------------------------------------------------

    As discussed above in section IV, our staff estimates that the one-
time operational costs necessary to establish and implement an 
exposure-based portfolio limitation would range from $20,000 to 
$150,000 per fund, depending on the particular facts and circumstances 
and current derivatives risk management practices of the fund.\838\ 
Staff also estimates that each fund would incur ongoing costs related 
to implementing a 150% exposure-based portfolio limitation under 
proposed rule 18f-4. Staff estimates that such costs would range from 
20% to 30% of the one-time costs discussed above. Thus, staff estimates 
that a fund would incur ongoing annual costs associated with the 150% 
exposure-based portfolio limit that would range from $4,000 to $45,000.
---------------------------------------------------------------------------

    \838\ See section IV.

---------------------------------------------------------------------------

[[Page 80990]]

    As discussed above in section IV.D.1, in the DERA staff analysis, 
68% of all of the sampled funds did not have any exposure to 
derivatives transactions. These funds thus do not appear to use 
derivatives transactions or, if they do use them, do not appear to do 
so to a material extent. We estimate that approximately 32% of funds--
the percentage of funds that did have derivatives exposure in the DERA 
sample--are more likely to enter into derivatives transactions and 
therefore are more likely to incur costs associated with either the 
exposure-based portfolio limit or the risk-based portfolio limit. 
Excluding approximately 4% of all funds (corresponding to the 
percentage of sampled funds that had aggregate exposure of 150% or more 
of net assets and for which we have estimated costs for the risk-based 
limit), we estimate that 28% of funds would incur the costs associated 
with the exposure-based portfolio limit. Staff also estimates that 28% 
of small funds (approximately 31 small funds) enter into at least some 
derivatives transactions, and would therefore incur the costs 
associated with the exposure-based portfolio limit.
    As with the costs discussed above regarding the exposure-based 
portfolio limit, we expect that funds would incur one-time and ongoing 
operational costs to establish and implement a risk-based exposure 
limit, including the VaR test. We expect that a fund that seeks to 
comply with the 300% aggregate exposure limit would incur the same 
costs as those that we estimated above in order to establish and 
implement the 150% exposure-based portfolio limit. Accordingly, we 
estimate below the costs we believe a fund would incur to comply with 
the VaR test. Our staff estimates that the one-time operational costs 
necessary to establish and implement a VaR test would range from 
$60,000 to $180,000 per fund, depending on the particular facts and 
circumstances and current derivatives risk management practices of the 
fund. Staff also estimates that each fund would incur ongoing costs 
related to implementing a VaR test under proposed rule 18f-4. Staff 
estimates that such costs would range from 20% to 30% of the one-time 
costs discussed above. Thus, staff estimates that a fund would incur 
ongoing annual costs associated with the VaR test aspect of the risk-
based exposure limit that would range from $12,000 to $54,000. DERA 
staff estimates that approximately 4% of all funds sampled had 
aggregate exposure of 150% (or greater) of net assets. We estimate 
therefore, that 4% of funds would rely on the proposed rule, and comply 
with the risk-based portfolio limit. Staff also estimates that 4% of 
small funds (approximately 4 small funds) would rely on the proposed 
rule, and comply with the risk-based portfolio limit.
2. Asset Segregation
    Under proposed rule 18f-4, a fund, including a fund that is a small 
entity, that enters into derivatives transactions in reliance on the 
rule would be required to manage the risks associated with its 
derivatives transactions by maintaining an amount of qualifying 
coverage assets designed to enable the fund to meet its obligations 
arising from such transactions.\839\ A fund's board, including a 
majority of the fund's independent directors, would be required to 
approve the fund's policies and procedures reasonably designed to 
provide for the fund's maintenance of qualifying coverage assets.\840\ 
A fund that would be required to maintain an amount of qualifying 
coverage assets under the proposed rule also would be subject to 
certain recordkeeping requirements. The proposed rule would require 
that qualifying coverage assets for derivatives transactions be 
identified on the books and records of the fund at least once each 
business day.\841\ In addition, the fund would be required to maintain 
a written copy of the policies and procedures approved by the board 
regarding the fund's maintenance of qualifying coverage assets, as 
required under the proposed rule.\842\
---------------------------------------------------------------------------

    \839\ See proposed rule 18f-4(a)(2).
    \840\ See proposed rule 18f-4(a)(5)(ii).
    \841\ See proposed rules 18f-4(a)(2) and 18f-4(a)(6)(v).
    \842\ See proposed rule 18f-4(a)(6)(ii).
---------------------------------------------------------------------------

    Our staff estimates that the one-time operational costs necessary 
to establish and implement the proposed asset segregation requirements 
would range from $25,000 to $75,000 per fund, depending on the 
particular facts and circumstances and current derivatives risk 
management practices of the funds comprising the fund. Staff also 
estimates that each fund would incur ongoing costs related to 
implementing the asset segregation requirements under proposed rule 
18f-4. Staff estimates that such costs would range from 65% to 75% of 
the one-time costs discussed above. Thus, staff estimates that a fund 
would incur ongoing annual costs associated with the asset segregation 
requirements that would range from $16,250 to $56,250. As discussed 
above in section IV.D.1, in the DERA staff analysis, 68% of all of the 
sampled funds did not have any exposure to derivatives transactions. 
These funds thus do not appear to use derivatives transactions or, if 
they do use them, do not appear to do so to a material extent. Staff 
estimates that the remaining 32% of funds will seek to rely on the 
proposed rule 18f-4, as noted above, and therefore comply with the 
asset segregation requirements. Staff also estimates that 32% of small 
funds (approximately 35 small funds) will seek to rely on proposed rule 
18f&4, and therefore comply with the asset segregation requirements.
3. Derivatives Risk Management Program
    We are proposing measures under rule 18f-4 that will help enhance 
derivatives risk management by requiring that any fund, including a 
small entity, that engages in more than a limited amount of derivatives 
transactions pursuant to the proposed rule, or that uses complex 
derivatives transactions, adopt and implement a derivatives risk 
management program.\843\ This risk management program would require a 
fund have policies and procedures reasonably designed to assess and 
manage the risks of the fund's derivatives transactions.\844\ The 
program is designed to be tailored by each fund and its adviser to the 
particular types of derivatives used by the fund and the manner in 
which those derivatives relate to the fund's investment portfolio and 
strategy. Funds that make only limited use of derivatives would not be 
subject to the proposed condition requiring the adoption of a 
formalized derivatives risk management program. A fund that makes only 
limited use of derivatives, however, would need to monitor its 
investments in derivatives to confirm that its aggregate exposure to 
derivatives transactions is not more than 50% of its NAV and that it 
does not use complex derivatives.
---------------------------------------------------------------------------

    \843\ See proposed rule 18f-4(a)(3).
    \844\ See proposed rule 18f-4(a)(3).
---------------------------------------------------------------------------

    Under the proposed rule, a fund's board of directors (including a 
majority of the directors who are not interested persons of the fund) 
must approve the fund's derivatives risk management program, including 
any material changes to the program, if applicable.\845\ A fund that 
has a risk management program would be required to designate a person 
as a derivatives risk manager responsible for administering the program 
and such derivatives risk manager would be required to provide a 
written report to the fund's board of directors, no less frequently 
than quarterly, that reviews the adequacy and

[[Page 80991]]

effectiveness of its implementation.\846\ We note that some funds, and 
in particular smaller funds for example, may not have appropriate 
existing personnel capable of fulfilling the responsibilities of the 
proposed derivatives risk manager, or may choose to hire a derivatives 
risk manager rather than assigning that responsibility to a current 
employee or officer of the fund or the fund's investment adviser who is 
not a portfolio manager. We would expect that a fund that is required 
to hire a new derivatives risk manager would likely incur costs on the 
higher end of our estimated range of costs provided below.
---------------------------------------------------------------------------

    \845\ See proposed rule 18f-4(a)(3)(ii)(A).
    \846\ See proposed rule 18f-4(a)(3)(ii)(B) and (C).
---------------------------------------------------------------------------

    A fund that is required to have a derivatives risk management 
program under the proposed rule would be required to maintain a written 
copy of the fund's risk management program and any associated policies 
and procedures that are in effect, or at any time within the past five 
years, were in effect in an easily accessible place.\847\ In addition, 
a fund would be required to maintain copies of any materials provided 
to the board of directors in connection with its approval of the 
derivatives risk management program, including any material changes to 
the program, and any written reports provided to the board of directors 
relating to the program.\848\
---------------------------------------------------------------------------

    \847\ See proposed rule 18f-4(a)(6)(iii)(A).
    \848\ See proposed rule 18f-4(a)(6)(iii)(B). The fund would be 
required to maintain this record for a period of not less than five 
years after the end of the fiscal year in which the documents were 
provided (the first two years in an easily accessible place).
---------------------------------------------------------------------------

    As discussed in the Economic Analysis section, our staff estimates 
that the one-time costs necessary to establish and implement a 
derivatives risk management program would range from $65,000 to 
$500,000 per fund, depending on the particular facts and circumstances 
and current derivatives risk management practices of the fund. Staff 
estimates that each fund would incur ongoing program-related costs, as 
a result of proposed rule 18f-4, that range from 65% to 75% of the one-
time costs necessary to establish and implement a derivatives risk 
management program. Thus, staff estimates that a fund would incur 
ongoing annual costs associated with proposed rule 18f-4 that would 
range from $42,250 to $375,000. Under the proposed rule, a fund that 
has no greater than 50% aggregate exposure associated with its 
derivatives transactions would not be required to establish a 
derivatives risk management program. DERA staff analysis shows that 
approximately 10% of all sampled funds had aggregate exposure from 
derivatives transactions high enough (i.e., aggregate exposure of 50% 
of net assets or greater) to require that they establish a derivatives 
risk management program under the proposed rule. The DERA staff 
analysis also shows that approximately 4% of additional funds had 
aggregate exposure of between 25 and 50% of net assets. In light of 
this, Commission staff estimates that approximately 14% of funds would 
establish a derivatives risk management program. Staff also estimates 
that approximately 14% of small funds (approximately 15 small funds) 
would establish a derivatives risk management program.
4. Financial Commitment Transactions
    Under our proposed rule, a fund may also enter into financial 
commitment transactions, notwithstanding the requirements of section 
18(a)(1), section 18(f)(1) and section 61 of the Investment Company Act 
provided that the fund maintains qualifying coverage assets, identified 
on the books and records of the fund and determined at least once each 
business day, with a value equal to at least the fund's aggregate 
financial commitment obligations.\849\ In addition, the fund's board of 
directors (including a majority of the directors who are not interested 
persons of the fund) would be required to approve policies and 
procedures reasonably designed to provide for the fund's maintenance of 
qualifying coverage assets.\850\ The fund would also be required to 
maintain a written copy of the policies and procedures approved by the 
board of directors that are in effect, or at any time within the past 
five years were in effect, in an easily accessible place.\851\ In 
addition, the fund would be required to maintain a written record 
reflecting the amount of each financial commitment obligation 
associated with each financial commitment transaction entered into by 
the fund and identifying the qualifying coverage assets maintained by 
the fund with respect to each financial commitment obligation, as 
determined by the fund at least once each business day, for a period of 
not less than five years (the first two years in an easily accessible 
place).\852\
---------------------------------------------------------------------------

    \849\ Proposed rule 18f-4(b)(1). See also proposed rule 18f-
4(c)(5) (definition of financial commitment obligation).
    \850\ Proposed rule 18f-4(b)(2).
    \851\ Proposed rule 18f-4(b)(3)(i).
    \852\ Proposed rule 18f-4(b)(3)(ii).
---------------------------------------------------------------------------

    Our staff estimates that the one-time operational costs necessary 
to establish and implement the proposed asset segregation requirements 
would range from $25,000 to $75,000 per fund. Staff also estimates that 
each fund would incur ongoing costs related to implementing the asset 
segregation requirements under proposed rule 18f-4. Staff estimates 
that such costs would range from 65% to 75% of the one-time costs 
discussed above. Thus, staff estimates that a fund would incur ongoing 
annual costs associated with the asset segregation requirements that 
would range from $16,250 to $56,250. DERA staff analysis shows that 
approximately 3% of all sampled funds enter into at least some 
financial commitment transactions, but do not use derivatives 
transactions (or other senior securities transactions). Staff 
estimates, therefore, that 3% of funds would comply with the asset 
segregation requirements in proposed rule 18f-4 applicable to financial 
commitment transactions.\853\ Staff also estimates that 3% of small 
funds (approximately 3 small funds) would comply with the asset 
segregation requirements in proposed rule 18f-4 applicable to financial 
commitment transactions.
---------------------------------------------------------------------------

    \853\ The estimate of affected funds does not include money 
market funds or BDCs. We understand, however, that both money market 
funds and BDCs may engage in certain types of financial commitment 
transactions. We estimate that 537 money market funds and 88 BDCs 
would also comply with the asset segregation requirements in 
proposed rule 18f-4 (applicable to financial commitment 
transactions). Based on information in filings submitted to the 
Commission, we believe that there are no money market funds that are 
small entities. The Commission staff further estimates that, as of 
June 2015, approximately 29 BDCs are small entities.
---------------------------------------------------------------------------

5. Amendments to Proposed Form N-PORT
    We are proposing amendments to proposed Form N-PORT to require the 
reporting of certain risk metrics (vega and gamma) but only by those 
funds that engage in more than a limited amount of derivatives 
transactions, by virtue of meeting the threshold requiring them to 
implement a derivatives risk management program as required by proposed 
rule 18f-4(a)(3).\854\ As discussed above, we propose to limit the 
reporting of vega and gamma because: (1) We understand that there are 
added burdens to reporting risk-metrics and we are therefore proposing 
to limit the reporting of these risk metrics to only those funds who 
are engaged in more than a limited amount of derivatives transactions 
or that use certain complex derivatives transactions, as opposed to 
funds that engage in a more limited use of derivatives; and (2) we 
believe many of the funds that would be required to

[[Page 80992]]

implement a derivatives risk management program and that invest in 
derivatives as part of their investment strategy currently calculate 
risk metrics for their own internal risk management programs, albeit, 
for internal reporting purposes.\855\ We anticipate that the enhanced 
reporting proposed in these amendments would help our staff better 
monitor price and volatility trends and various funds' risk profiles. 
Risk metrics data reported on Form N-PORT that is made publicly 
available also would inform investors and assist users in assessing 
funds' relative price and volatility risks and the overall price and 
volatility risks of the fund industry--particularly for those funds 
that use investments in derivatives as an important part of their 
trading strategy.
---------------------------------------------------------------------------

    \854\ See supra section III.G. See also proposed rule 18f-
4(a)(3).
    \855\ Part C of proposed Form N-PORT would require a fund and 
its consolidated subsidiaries to disclose its schedule of 
investments and certain information about the fund's portfolio of 
investments. We propose to add Item C.11.c.viii to Part C of 
proposed Form N-PORT that would require funds that are required to 
implement a risk management program under proposed rule 18f-4(a)(3) 
provide the gamma and vega for options and warrants, including 
options on a derivative, such as swaptions. See Item C.11.c.viii of 
proposed Form N-PORT.
---------------------------------------------------------------------------

    All funds that would be required to implement a derivatives risk 
management program as required by proposed rule 18f-4(a)(3) would be 
subject to the proposed amendments to Form N-PORT, including funds that 
are small entities. For smaller funds and fund groups \856\ we proposed 
an extra 12 months (or 30 months after the effective date) to comply 
with the proposed Form N-PORT reporting requirements. We estimate that 
10% of small funds (approximately 11 small funds) would be required to 
comply with the proposed amendments to Form N-PORT.
---------------------------------------------------------------------------

    \856\ For purposes of the extended compliance date only, we 
proposed that funds that together with other investment companies in 
the same ``group of related investment companies'' have net assets 
of less than $1 billion as of the end of the most recent fiscal year 
be subject to an extra 12 months to comply with proposed Form N-
PORT.
---------------------------------------------------------------------------

    We estimate that 1,676 funds would be required to file, on a 
monthly basis, additional information on Form N-PORT as a result of the 
proposed amendments.\857\ Assuming that 35% of funds (587 funds) would 
choose to license a software solution to file reports on Form N-PORT in 
house, we estimate an upper bound on the initial annual costs to file 
the additional information associated with the proposed amendments for 
funds choosing this option of $3,352 per fund with annual ongoing costs 
of $2,991 per fund.\858\ We further assume that 65% of funds (1,089 
funds) would choose to retain a third-party service provider to provide 
data aggregation and validation services as part of the preparation and 
filing of reports on Form N-PORT, and we estimate an upper bound on the 
initial costs to file the additional information associated with the 
proposed amendments for funds choosing this option of $2,319 per fund 
with annual ongoing costs of $1,517 per fund.\859\ As noted above, we 
estimate that 10% of small funds (approximately 11 small funds) would 
be required to comply with the proposed amendments to Form N-PORT. 
Staff estimates that 35% of small funds (approximately 4 small funds) 
would choose to license a software solution to file reports on Form N-
PORT in house, and 65% of small funds (approximately 7 small funds) 
would choose to retain a third-party service provider.
---------------------------------------------------------------------------

    \857\ See supra note 794.
    \858\ See supra notes 797 and 798, and accompanying text.
    \859\ See supra notes 803 and 804, and accompanying text.
---------------------------------------------------------------------------

6. Amendments to Form N-CEN
    We are proposing amendments to Form N-CEN to require a fund to 
identify whether the fund relied upon proposed rule 18f-4. 
Specifically, the proposed amendments to Form N-CEN would require a 
fund to identify the portfolio limitation(s) under which the fund 
relied during the reporting period. As we discussed above, while the 
costs associated with collecting and documenting the requirements under 
proposed rule 18f-4 are discussed above,\860\ we believe that there are 
additional costs relating to identifying the portfolio limitation(s) on 
which a fund relied on proposed Form N-CEN.
---------------------------------------------------------------------------

    \860\ See supra sections IV.D.1. and IV.D.2.
---------------------------------------------------------------------------

    We estimate that 2,419 funds would incur initial costs of $80 per 
fund,\861\ with annual ongoing costs of $32 per fund,\862\ to compile 
(including review of the information), tag, and electronically file the 
additional information in light of the proposed amendments. We do not 
anticipate any change to the total external annual costs of 
$1,748,637.\863\
---------------------------------------------------------------------------

    \861\ See supra note 815.
    \862\ See supra note 816.
    \863\ See supra note 821.
---------------------------------------------------------------------------

    As noted above, we estimate that approximately 110 open and closed-
end funds are small entities that would be required to identify the 
portfolio limitation(s) on which they relied on reports on Form N-CEN 
during the reporting period.\864\
---------------------------------------------------------------------------

    \864\ See supra section VI.C.
---------------------------------------------------------------------------

E. Duplicative, Overlapping, or Conflicting Federal Rules

    Commission staff has not identified any federal rules that 
duplicate, overlap, or conflict with proposed rule 18f-4 or the 
proposed amendments to Form N-PORT and Form N-CEN.

F. Significant Alternatives

    The RFA directs the Commission to consider significant alternatives 
that would accomplish our stated objectives, while minimizing any 
significant economic impact on small entities. We considered the 
following alternatives for small entities in relation to our proposal: 
(1) Exempting funds that are small entities from proposed rule 18f-4, 
or any part thereof, and/or establishing different requirements under 
proposed rule 18f-4 to account for resources available to small 
entities; (2) exempting funds that are small entities from the proposed 
amendments to Form N-PORT, or establishing different disclosure and 
reporting requirements, or different reporting frequency, to account 
for resources available to small entities; (3) the clarification, 
consolidation, or simplification of compliance requirements under 
proposed rule 18f-4 for small entities; and (4) the use of performance 
rather than design standards.
1. Proposed Rule 18f-4
    We do not believe that exempting any subset of funds, including 
funds that are small entities, from the provisions in proposed rule 
18f-4 would permit us to achieve our stated objectives. We also do not 
believe that it would be desirable to establish different requirements 
applicable to funds of different sizes under proposed rule 18f-4 to 
account for resources available to small entities \865\ or to use 
performance standards rather than design standards for small entities 
where applicable. We note, however, that proposed rule 18f-4 is an 
exemptive rule, which would require funds to comply with new 
requirements only if they wish to enter into derivatives transactions 
and financial commitment transactions. Therefore, if a small entity 
does not invest in derivatives or financial commitment transactions as 
part of its investment strategy, then the small entity would not be 
required to comply with the provisions of proposed rule 18f-4. In the 
DERA staff analysis, 68%

[[Page 80993]]

of all funds sampled did not have any exposure to derivatives 
transactions, which would indicate that many funds, including many 
small funds, will be unaffected by the proposed rule. However, for 
small funds that would be affected by our proposed rule, providing an 
exemption or consolidating or simplifying the proposed rule for small 
entities could subject investors of small funds that invest in 
derivatives to a higher degree of risk than investors to large funds 
that would be required to comply with the proposed elements of the 
rule.
---------------------------------------------------------------------------

    \865\ We believe, however, that the Commission has accounted for 
the resources available to small entities by providing some 
flexibility in the proposed requirement that each fund that is 
required to adopt and implement a program must reasonably segregate 
the functions associated with the portfolio management of the fund.
---------------------------------------------------------------------------

    The undue speculation concern expressed in section 1(b)(7) of the 
Act and the asset sufficiency concern reflected in section 1(b)(8) of 
the Act that the proposed rule is designed to address applies to both 
small as well as large funds. As discussed throughout this Release, we 
believe that the proposed rule would result in multiple investor 
protection benefits, and these benefits should apply to investors in 
smaller funds as well as investors in larger funds. We therefore do not 
believe it would be appropriate to exempt funds that are small entities 
from the portfolio limitation provisions or the asset segregation 
provisions of proposed rule 18f-4 or establish different requirements 
applicable to funds of different sizes under these provisions to 
account for resources available to small entities. Further, we believe 
that all of the proposed elements of rule 18f-4 should work together to 
produce the anticipated investor protection benefits, and therefore do 
not believe it is appropriate to except or modify the requirements for 
smaller funds because we believe this would limit the benefits to 
investors in such funds.
    We also do not believe it would be appropriate to exempt funds that 
are small entities from the derivatives risk management requirements of 
proposed rule 18f-4 or establish different requirements applicable to 
funds of different sizes. We believe that all of the proposed program 
elements would be necessary for a fund to effectively assess and manage 
its derivatives risk, and we anticipate that all of the proposed 
program elements would work together to produce the anticipated 
investor protection benefits. We do note that the costs associated with 
proposed rule 18f-4 would vary depending on the fund's particular 
circumstances, and thus the proposed rule could result in different 
burdens on funds' resources. In particular, we expect that a fund that 
pursues an investment strategy that involves greater derivatives risk 
may have greater costs associated with its derivatives risk management 
program. However, we believe that it is appropriate to correlate the 
costs associated with the proposed rule with the level of derivatives 
risk facing a fund, and not necessarily with the fund's size. Thus, to 
the extent a fund that is a small entity faces relatively little 
derivatives risk, it would incur relatively low costs to comply with 
proposed rule 18f-4. And, to the extent that a fund that is a small 
entity that engages in a limited amount of derivatives transactions 
pursuant to the proposed rule, and does not use complex derivatives 
transactions, such small entity would not be required to adopt and 
implement a derivatives risk management program.
2. Form N-PORT and Form N-CEN
    Similarly, we do not believe that the interests of investors would 
be served by exempting funds that are small entities from the proposed 
disclosure and reporting requirements, or subjecting these funds to 
different disclosure and reporting requirements than larger funds. We 
believe that all fund investors, including investors in funds that are 
small entities, would benefit from disclosure and reporting 
requirements that would permit them to make investment choices that 
better match their risk tolerances. We also believe that all fund 
investors would benefit from enhanced Commission monitoring and 
oversight of the fund industry, which we anticipate would result from 
the proposed disclosure and reporting requirements.

G. General Request for Comment

    The Commission requests comments regarding this analysis. We 
request comment on the number of small entities that would be subject 
to our proposal and whether our proposal would have any effects that 
have not been discussed. We request that commenters describe the nature 
of any effects on small entities subject to our proposal and provide 
empirical data to support the nature and extent of such effects. We 
also request comment on the estimated compliance burdens of our 
proposal and how they would affect small entities.

VII. Consideration of Impact on the Economy

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''), the Commission must advise OMB whether a 
proposed regulation constitutes a ``major'' rule. Under SBREFA, a rule 
is considered ``major'' where, if adopted, it results in or is likely 
to result in:
     An annual effect on the economy of $100 million or more;
     A major increase in costs or prices for consumers or 
individual industries; or
     Significant adverse effects on competition, investment, or 
innovation.
    We request comment on whether our proposal would be a ``major 
rule'' for purposes of SBREFA. We solicit comment and empirical data 
on:
     The potential effect on the U.S. economy on an annual 
basis;
     Any potential increase in costs or prices for consumers or 
individual industries; and
     Any potential effect on competition, investment, or 
innovation.
    Commenters are requested to provide empirical data and other 
factual support for their views to the extent possible.

VII. Statutory Authority

    The Commission is proposing new rule 18f-4 under the authority set 
forth in sections 6(c), 12(a), 31(a), and 38(a) of the Investment 
Company Act of 1940 [15 U.S.C. 80a-6(c), 80a-31(a), 80a-12(a), and 80a-
38(a)]. The Commission is proposing amendments to proposed Form N-PORT 
and Form N-CEN under the authority set forth in sections 8, 30, and 38 
of the Investment Company Act of 1940 [15 U.S.C. 80a-8, 80a-30, 80a-
38].

Text of Rules and Forms

List of Subjects in 17 CFR Parts 270 and 274

    Investment companies, Reporting and recordkeeping requirements, 
Securities.

    For the reasons set out in the preamble, title 17, chapter II of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940

0
1. The authority citation for part 270 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 80a-1 et seq., 80a-34(d), 80a-37, 80a-39, 
and Pub. L. 111-203, sec. 939A, 124 Stat. 1376 (2010), unless 
otherwise noted.
* * * * *
0
2. Section Sec.  270.18f-4 is added to read as follows:


Sec.  270.18f-4  Exemption from the requirements of section 18 and 
section 61 for certain senior securities transactions.

    (a) A registered open-end or closed-end company or business 
development company (each, including any separate series thereof, a 
``fund'') may enter into derivatives transactions, notwithstanding the 
requirements of

[[Page 80994]]

section 18(a)(1) (15 U.S.C. 80a-18(a)(1)), section 18(c) (15 U.S.C. 
80a-18(c)), section 18(f)(1) (15 U.S.C. 80a-18(f)(1)) and section 61 
(15 U.S.C. 80a-61) of the Investment Company Act; provided that:
    (1) The fund complies with one of the following portfolio 
limitations such that, immediately after entering into any senior 
securities transaction:
    (i) The aggregate exposure of the fund does not exceed 150% of the 
value of the fund's net assets; or
    (ii) The fund's full portfolio VaR is less than the fund's 
securities VaR and the aggregate exposure of the fund does not exceed 
300% of the value of the fund's net assets.
    (2) The fund manages the risks associated with its derivatives 
transactions by maintaining qualifying coverage assets, identified on 
the books and records of the fund as specified in paragraph (a)(6)(v) 
of this section and determined at least once each business day, with a 
value equal to at least the sum of the fund's aggregate mark-to-market 
coverage amounts and risk-based coverage amounts.
    (3) Except as provided in paragraph (a)(4) of this section, the 
fund adopts and implements a written derivatives risk management 
program (``program'') that is reasonably designed to assess and manage 
the risks associated with the fund's derivatives transactions.
    (i) Required program elements. Each fund required to adopt and 
implement a program must adopt and implement written policies and 
procedures reasonably designed to:
    (A) Assess the risks associated with the fund's derivatives 
transactions, including an evaluation of potential leverage, market, 
counterparty, liquidity, and operational risks, as applicable, and any 
other risks considered relevant;
    (B) Manage the risks associated with the fund's derivatives 
transactions (including the risks identified in paragraph (a)(3)(i)(A) 
of this section, as applicable), including by:
    (1) Monitoring whether the fund's use of derivatives transactions 
is consistent with any investment guidelines established by the fund or 
the fund's investment adviser, the relevant portfolio limitation 
applicable to the fund under this section, and relevant disclosure to 
investors; and
    (2) Informing persons responsible for portfolio management of the 
fund or the fund's board of directors, as appropriate, regarding 
material risks arising from the fund's derivatives transactions;
    (C) Reasonably segregate the functions associated with the program 
from the portfolio management of the fund; and
    (D) Periodically review and update the program at least annually, 
including any models (including any VaR calculation models used by the 
fund during the period covered by the review), measurement tools, or 
policies and procedures that are part of, or used in, the program to 
evaluate their effectiveness and reflect changes in risks over time.
    (ii) Board approval and oversight of the program. (A) The fund 
shall obtain initial approval of the program, as well as any material 
change to the program, from the fund's board of directors, including a 
majority of directors who are not interested persons of the fund;
    (B) The fund's board of directors, including a majority of 
directors who are not interested persons of the fund, shall review, no 
less frequently than quarterly, a written report prepared by the person 
designated under paragraph (a)(3)(ii)(C) of this section that describes 
the adequacy of the fund's program and the effectiveness of its 
implementation; and
    (C) The fund shall designate an employee or officer of the fund or 
the fund's investment adviser (who may not be a portfolio manager of 
the fund) responsible for administering the policies and procedures 
incorporating the elements of paragraphs (a)(3)(i)(A) through (D) of 
this section, whose designation must be approved by the fund's board of 
directors, including a majority of the directors who are not interested 
persons of the fund.
    (4) A derivatives risk management program shall not be required if 
the fund complies, and monitors its compliance, with a portfolio 
limitation under which:
    (i) Immediately after entering into any derivatives transaction the 
aggregate exposure associated with the fund's derivatives transactions 
does not exceed 50% of the value of the fund's net assets; and
    (ii) The fund does not enter into complex derivatives transactions.
    (5) The fund's board of directors (including a majority of the 
directors who are not interested persons of the fund) has:
    (i) Approved the particular portfolio limitation under which the 
fund will operate pursuant to paragraph (a)(1) of this section and, if 
applicable, paragraph (a)(4) of this section;
    (ii) Approved policies and procedures reasonably designed to 
provide for the fund's maintenance of qualifying coverage assets, as 
required under paragraph (a)(2) of this section; and
    (iii) If the fund is required to adopt and implement a derivatives 
risk management program, taken the actions specified in paragraph 
(a)(3)(ii) of this section.
    (6) The fund maintains:
    (i) A written record of each determination made by the fund's board 
of directors under paragraph (a)(5)(i) of this section with respect to 
the portfolio limitation applicable to the fund for a period of not 
less than five years (the first two years in an easily accessible 
place) following each determination;
    (ii) A written copy of the policies and procedures approved by the 
board of directors under paragraph (a)(5)(ii) of this section that are 
in effect, or at any time within the past five years were in effect, in 
an easily accessible place; and
    (iii) If the fund is required to adopt and implement a derivatives 
risk management program:
    (A) A written copy of the policies and procedures adopted by the 
fund under paragraph (a)(3) of this section that are in effect, or at 
any time within the past five years were in effect, in an easily 
accessible place;
    (B) Copies of any materials provided to the board of directors in 
connection with its approval of the derivatives risk management 
program, including any material changes to the program, and any written 
reports provided to the board of directors relating to the program, for 
at least five years after the end of the fiscal year in which the 
documents were provided, the first two years in an easily accessible 
place; and
    (C) Records documenting the periodic reviews and updates conducted 
in accordance with paragraph (a)(3)(i)(D) of this section (including 
any updates to any VaR calculation models used by the fund and the 
basis for any material changes thereto), for a period of not less than 
five years (the first two years in an easily accessible place) 
following each review or update.
    (iv) A written record demonstrating that immediately after the fund 
entered into any senior securities transaction, the fund complied with 
the portfolio limitation applicable to the fund immediately after 
entering into the senior securities transaction, reflecting the fund's 
aggregate exposure, the value of the fund's net assets and, if 
applicable, the fund's full portfolio VaR and its securities VaR, for a 
period of not less than five years (the first two years in an easily 
accessible place) following each senior securities transaction entered 
into by the fund.
    (v) A written record reflecting the mark-to-market coverage amount 
and the risk-based coverage amount for each derivatives transaction 
entered into by the fund and identifying the qualifying coverage assets 
maintained by the fund with respect to the fund's aggregate

[[Page 80995]]

mark-to-market and risk-based coverage amounts, as determined by the 
fund at least once each business day, for a period of not less than 
five years (the first two years in an easily accessible place).
    (b) A fund may enter into financial commitment transactions, 
notwithstanding the requirements of section 18(a)(1) (15 U.S.C. 80a-
18(a)(1)), section 18(c) (15 U.S.C. 80a-18(c)), section 18(f)(1) (15 
U.S.C. 80a-18(f)(1)) and section 61 (15 U.S.C. 80a-61) of the 
Investment Company Act; provided that:
    (1) The fund maintains qualifying coverage assets, identified on 
the books and records of the fund as specified in paragraph (b)(3)(ii) 
of this section and determined at least once each business day, with a 
value equal to at least the fund's aggregate financial commitment 
obligations.
    (2) The fund's board of directors (including a majority of the 
directors who are not interested persons of the fund) has approved 
policies and procedures reasonably designed to provide for the fund's 
maintenance of qualifying coverage assets, as required under paragraph 
(b)(1) of this section.
    (3) The fund maintains:
    (i) A written copy of the policies and procedures approved by the 
board of directors under paragraph (b)(2) of this section that are in 
effect, or at any time within the past five years were in effect, in an 
easily accessible place; and
    (ii) A written record reflecting the amount of each financial 
commitment obligation associated with each financial commitment 
transaction entered into by the fund and identifying the qualifying 
coverage assets maintained by the fund with respect to each financial 
commitment obligation, as determined by the fund at least once each 
business day, for a period of not less than five years (the first two 
years in an easily accessible place).
    (c) Definitions. (1) Complex derivatives transaction means any 
derivatives transaction for which the amount payable by either party 
upon settlement date, maturity or exercise:
    (i) Is dependent on the value of the underlying reference asset at 
multiple points in time during the term of the transaction; or
    (ii) Is a non-linear function of the value of the underlying 
reference asset, other than due to optionality arising from a single 
strike price.
    (2) Derivatives transaction means any swap, security-based swap, 
futures contract, forward contract, option, any combination of the 
foregoing, or any similar instrument (``derivatives instrument'') under 
which the fund is or may be required to make any payment or delivery of 
cash or other assets during the life of the instrument or at maturity 
or early termination, whether as a margin or settlement payment or 
otherwise.
    (3) Exposure means the sum of the following amounts, determined 
immediately after the fund enters into any senior securities 
transaction:
    (i) The aggregate notional amounts of the fund's derivatives 
transactions, provided that a fund may net any directly offsetting 
derivatives transactions that are the same type of instrument and have 
the same underlying reference asset, maturity and other material terms;
    (ii) The aggregate financial commitment obligations of the fund; 
and
    (iii) The aggregate indebtedness (and with respect to any closed-
end fund or business development company, involuntary liquidation 
preference) with respect to any senior securities transaction entered 
into by the fund pursuant to section 18 (15 U.S.C. 80a-18) or 61 (15 
U.S.C. 80a-61) of the Investment Company Act without regard to the 
exemption provided by this section.
    (4) Financial commitment transaction means any reverse repurchase 
agreement, short sale borrowing, or any firm or standby commitment 
agreement or similar agreement (such as an agreement under which a fund 
has obligated itself, conditionally or unconditionally, to make a loan 
to a company or to invest equity in a company, including by making a 
capital commitment to a private fund that can be drawn at the 
discretion of the fund's general partner).
    (5) Financial commitment obligation means the amount of cash or 
other assets that the fund is conditionally or unconditionally 
obligated to pay or deliver under a financial commitment transaction. 
Where the fund is conditionally or unconditionally obligated to deliver 
a particular asset, the financial commitment obligation shall be the 
value of the asset, determined at least once each business day.
    (6) Mark-to-market coverage amount means, for each derivatives 
transaction, at any time of determination under this section, the 
amount that would be payable by the fund if the fund were to exit the 
derivatives transaction at such time; provided that:
    (i) If the fund has entered into a netting agreement that allows 
the fund to net its payment obligations with respect to multiple 
derivatives transactions, the mark-to-market coverage amount for those 
derivatives transactions may be calculated as the net amount that would 
be payable by the fund, if any, with respect to all derivatives 
transactions covered by the netting agreement; and
    (ii) The fund's mark-to-market coverage amount for a derivatives 
transaction may be reduced by the value of assets that represent 
variation margin or collateral for the amounts payable referred to in 
paragraph (c)(6) of this section with respect to the derivatives 
transaction.
    (7) Notional amount means, with respect to any derivatives 
transaction:
    (i) The market value of an equivalent position in the underlying 
reference asset for the derivatives transaction (expressed as a 
positive amount for both long and short positions); or
    (ii) The principal amount on which payment obligations under the 
derivatives transaction are calculated; and
    (iii) Notwithstanding paragraphs (c)(7)(i) and (ii) of this 
section:
    (A) For any derivatives transaction that provides a return based on 
the leveraged performance of a reference asset, the notional amount 
shall be multiplied by the leverage factor;
    (B) For any derivatives transaction for which the reference asset 
is a managed account or entity formed or operated primarily for the 
purpose of investing in or trading derivatives transactions, or an 
index that reflects the performance of such a managed account or 
entity, the notional amount shall be determined by reference to the 
fund's pro rata share of the notional amounts of the derivatives 
transactions of such account or entity; and
    (C) For any complex derivatives transaction, the notional amount 
shall be an amount equal to the aggregate notional amount of 
derivatives instruments, excluding other complex derivatives 
transactions, reasonably estimated to offset substantially all of the 
market risk of the complex derivatives transaction.
    (8) Qualifying coverage assets means assets of the fund described 
in paragraphs (c)(8)(i) through (iii) of this section, provided that 
the total amount of a fund's qualifying coverage assets shall not 
exceed the fund's net assets, and that assets of the fund maintained as 
qualifying coverage assets shall not be used to cover both a 
derivatives transaction and a financial commitment transaction:
    (i) Cash and cash equivalents;
    (ii) With respect to any derivatives transaction or financial 
commitment transaction under which the fund may satisfy its obligations 
under the

[[Page 80996]]

transaction by delivering a particular asset, that particular asset; 
and
    (iii) With respect to any financial commitment obligation, assets 
that are convertible to cash or that will generate cash, equal in 
amount to the financial commitment obligation, prior to the date on 
which the fund can be expected to be required to pay such obligation or 
that have been pledged with respect to the financial commitment 
obligation and can be expected to satisfy such obligation, determined 
in accordance with policies and procedures approved by the fund's board 
of directors as provided in paragraph (b)(2) of this section.
    (9) Risk-based coverage amount means, for each derivatives 
transaction, an amount, in addition to the derivative transaction's 
mark-to-market coverage amount, that represents, at any time of 
determination under this section, a reasonable estimate of the 
potential amount payable by the fund if the fund were to exit the 
derivatives transaction under stressed conditions, determined in 
accordance with policies and procedures (which must take into account, 
as relevant, the structure, terms and characteristics of the 
derivatives transaction and the underlying reference asset) approved by 
the fund's board of directors as provided in paragraph (a)(5) of this 
section; provided that:
    (i) The risk-based coverage amount may be determined on a net basis 
for derivatives transactions that are covered by a netting agreement 
that allows the fund to net its payment obligations with respect to 
multiple derivatives transactions, in accordance with the terms of the 
netting agreement; and
    (ii) The fund's risk-based coverage amount for a derivatives 
transaction may be reduced by the value of assets that represent 
initial margin or collateral for the potential amounts payable referred 
to in paragraph (c)(9) of this section with respect to the derivatives 
transaction.
    (10) Senior securities transaction means any derivatives 
transaction, financial commitment transaction, or any transaction 
involving a senior security entered into by the fund pursuant to 
section 18 (15 U.S.C. 80a-18) or 61 (15 U.S.C. 80a-61) of the Act 
without regard to the exemption provided by this section.
    (11) Value-at-risk or VaR means an estimate of potential losses on 
an instrument or portfolio, expressed as a positive amount in U.S. 
dollars, over a specified time horizon and at a given confidence 
interval, provided that:
    (i) For purposes of the portfolio limitation described in 
(a)(1)(ii) of this section:
    (A) A fund's ``securities VaR'' means the VaR of the fund's 
portfolio of securities and other investments, but excluding any 
derivatives transactions;
    (B) A fund's ``full portfolio VaR'' means the VaR of the fund's 
entire portfolio, including securities, other investments and 
derivatives transactions; and
    (C) A fund must apply its VaR model consistently when calculating 
the fund's securities VaR and the fund's full portfolio VaR.
    (ii) Any VaR model used by a fund for purposes of determining the 
fund's securities VaR and full portfolio VaR must:
    (A) Take into account and incorporate all significant, identifiable 
market risk factors associated with a fund's investments, including, as 
applicable:
    (1) Equity price risk, interest rate risk, credit spread risk, 
foreign currency risk and commodity price risk;
    (2) Material risks arising from the nonlinear price characteristics 
of a fund's investments, including options and positions with embedded 
optionality; and
    (3) The sensitivity of the market value of the fund's investments 
to changes in volatility;
    (B) Use a 99% confidence level and a time horizon of not less than 
10 and not more than 20 trading days; and
    (C) If using historical simulation, include at least three years of 
historical market data.

PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940

0
3. The authority citation for part 274 continues to read, in part, as 
follows:

    Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m, 
78n, 78o(d), 80a-8, 80a-24, 80a-26, 80a-29, and Pub. L. 111-203, 
sec. 939A, 124 Stat. 1376 (2010), unless otherwise noted.
* * * * *
0
4. Further amend Form N-CEN (referenced in 274.101) as proposed at 80 
FR 33699, June 12, 2015, and further amended at 80 FR 62387, October 
15, 2015, by, in Part C, adding paragraphs k and l to Item 31 to read 
as follows:


Sec.  274.101  Form N-CEN, annual report of registered investment 
companies.

* * * * *

Part C. Additional Questions for Management Investment Companies

* * * * *
    Item 31. * * *
* * * * *
    k. Rule 18f-4(a)(1)(i) (17 CFR 270.18f-4(a)(1)(i)): __
    l. Rule 18f-4(a)(1)(ii) (17 CFR 270. 18f-4(a)(1)(ii)): __
* * * * *
0
5. Amend Form N-PORT (referenced in 274.150), as proposed at 80 FR 
33712, June 12, 2015, and further amended at 80 FR 62387, October 15, 
2015, by:
0
a. In Part C, revising Item C. 11.c.viii; and
0
b. In Part C, adding Item C.11.c.ix.
    The revision and addition read as follows:


Sec.  274.150  Form N-PORT, Monthly portfolio holdings report.

* * * * *

Part C: Schedule of Portfolio Investments

* * * * *
Item C.11. * * *
    c. * * *
    viii. For funds that are required to implement a risk management 
program under rule 18f-4(a)(3) under the Investment Company Act, 
provide:
    1. Gamma.
    2. Vega.
* * * * *
    ix. Unrealized appreciation or depreciation.
* * * * *

    By the Commission.

    Dated: December 11, 2015.
Brent J. Fields,
Secretary.
[FR Doc. 2015-31704 Filed 12-24-15; 8:45 am]
BILLING CODE 8011-01-P