[Federal Register Volume 61, Number 243 (Tuesday, December 17, 1996)]
[Rules and Regulations]
[Pages 66207-66212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31891]



[[Page 66207]]

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 270

[Release No. IC-22389; File No. S7-15-94]
RIN 3235-AF97


Custody of Investment Company Assets With Futures Commission 
Merchants and Commodity Clearing Organizations

AGENCY: Securities and Exchange Commission.

ACTION: Final Rule.

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SUMMARY: The Commission is adopting a new rule under the Investment 
Company Act of 1940 to permit registered investment companies to 
maintain their assets with futures commission merchants and certain 
other entities in connection with futures contracts and commodity 
options traded on U.S. and foreign exchanges. Currently, investment 
companies generally must maintain assets relating to these transactions 
in special accounts with a custodian bank. The new rule will enable 
investment companies to effect their commodity trades in the same 
manner as other market participants under conditions designed to 
provide custodial protections for investment company assets.

EFFECTIVE DATE: The rule will become effective January 16, 1997.

FOR FURTHER INFORMATION CONTACT: Kenneth J. Berman, Assistant Director, 
Office of Regulatory Policy, Division of Investment Management, at 
(202) 942-0690, or Elizabeth R. Krentzman, Assistant Director, Office 
of Disclosure and Investment Adviser Regulation, Division of Investment 
Management, at (202) 942-0721, Securities and Exchange Commission, 450 
Fifth Street, N.W., Mail Stop 10-2, Washington, D.C. 20549.
    Requests for formal interpretive advice should be directed to the 
Office of Chief Counsel at (202) 942-0659, Division of Investment 
Management, Securities and Exchange Commission, 450 Fifth Street, N.W., 
Mail Stop 10-6, Washington, D.C. 20549.

SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission 
(``Commission'') today is adopting rule 17f-6 [17 CFR 270.17f-6] under 
the Investment Company Act of 1940 [15 U.S.C. 80a] (the ``Investment 
Company Act''). The new rule governs the custody of investment company 
assets by futures commission merchants and other entities used for 
settling commodity transactions. The rule does not affect the extent to 
which investment companies may engage in commodity trading.

Table of Contents

Executive Summary

I. Background
    A. Commodities Trading and Investment Company Act Custody
    B. Custodial Protections for Commodity Assets under the 
Commodity Exchange Act
II. Rule 17f-6
    A. Role of Fund Board of Directors
    B. Eligible FCM Custodians
    1. FCM Registration and CFTC Net Capital Requirements
    2. Affiliated FCM Arrangements
    C. Domestic and Foreign Commodity Transactions
    D. Assets Held in FCM Custody
    1. Initial Margin
    2. Gains on Commodity Transactions
    E. Contract Requirements and Custodians Used to Effect Commodity 
Transactions
    F. Withdrawal of Assets from FCM Custody
III. Cost/Benefit Analysis
IV. Summary of Regulatory Flexibility Analysis
V. Statutory Authority
Text of Adopted Rule

Executive Summary

    The Commission is adopting rule 17f-6 under the Investment Company 
Act. Rule 17f-6 permits registered management investment companies, 
unit investment trusts (``UITs''), and face-amount certificate 
companies (collectively, ``funds'') to maintain assets (i.e., margin) 
with futures commission merchants (``FCMs'') in connection with 
commodity transactions effected on both domestic and foreign exchanges. 
Currently, funds generally must maintain such assets in special 
accounts with a custodian bank. The new rule is designed to eliminate 
unnecessary regulatory burdens, and to enable funds to effect their 
commodity trades in the same manner as other market participants.
    Rule 17f-6 permits funds to maintain their assets with FCMs that 
are registered under the Commodity Exchange Act (``CEA'') and that are 
not affiliated with the fund. Rule 17f-6 requires a written contract 
between the fund and the FCM to contain certain provisions. Among other 
things, the FCM must agree that any other FCMs used to clear the fund's 
trades meet the rule's requirements (other than the requirement of a 
contract with the fund). To protect fund assets from loss in the event 
of an FCM's bankruptcy, any gains on fund transactions may be 
maintained with an FCM only in de minimis amounts.
    Unlike the rule as originally proposed, rule 17f-6 does not require 
a fund's board of directors to select and monitor the fund's FCM 
arrangements, nor does the rule require an FCM that holds fund assets 
to meet capital standards in excess of those imposed under the CEA.
    Rule 17f-6 does not require that assets related to commodities 
transactions be maintained with an FCM. Funds may continue to maintain 
such assets in a special account with a custodian bank.

I. Background

A. Commodities Trading and Investment Company Act Custody

    The Commission proposed rule 17f-6 under the Investment Company Act 
to permit management investment companies to effect their commodity 
trades by placing assets relating to such transactions directly with 
FCMs.1 Over the last several years, fund participation in 
commodity markets has increased. A fund, for example, may engage in 
commodity trades to hedge its portfolio against declines in securities 
prices, changes in interest rates, or foreign currency 
fluctuations.2 A fund also may enter into commodity transactions 
to adjust the percentage of its portfolio held in cash, debt, and 
stocks without having to buy or sell the actual assets.3
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    \1\ Rule 17f-6 was proposed for public comment on May 24, 1994. 
Custody of Investment Company Assets with Futures Commission 
Merchants and Commodity Clearing Organizations, Investment Company 
Act Release No. 20313 (May 24, 1994) [59 FR 28286 (June 1, 1994)] 
[hereinafter the Proposing Release].
    \2\ Commodity transactions include futures contracts and options 
on futures contracts and physical commodities. A futures contract 
generally is a bilateral agreement providing for the purchase or 
sale of a specified commodity at a stated time in the future for a 
fixed price. Robert E. Fink & Robert B. Feduniak, Futures Trading 10 
(1988) [hereinafter Fink & Feduniak]. A commodity option gives its 
holder the right, for a specified period of time, to either buy (in 
the case of a call option) or sell (in the case of a put option) the 
subject of the option at a predetermined price. The writer (seller) 
of an option is obligated to sell or buy the specified commodity at 
the election of the option holder. 1 Philip M. Johnson & Thomas L. 
Hazen, Commodities Regulation section 1.07 (2d ed. Supp. 1991) 
[hereinafter Johnson & Hazen].
    \3\ Taking a position in a futures contract with respect to 
stocks that comprise the Standard & Poor's 500 Index, for example, 
may be more efficient than buying and selling all of the stocks that 
comprise that index due to lower brokerage and transaction costs.
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    To enter into a futures contract or write a commodity option, a 
customer typically deposits with an FCM, as security for performance of 
its obligations, a specified amount of assets or cash as ``initial 
margin.'' 4 In the case

[[Page 66208]]

of a fund, placing initial margin with an FCM could be viewed as 
placing fund assets in the custody of the FCM.5 The FCM then 
clears the transaction by posting margin either directly with a 
clearing organization or with one or more other FCMs that will effect 
the transaction through the clearing organization.6
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    \4\ Unlike the parties to a futures contract, only the writer 
(seller) of an option is subject to margin requirements; the option 
holder (purchaser) pays the writer a one-time premium as 
compensation in full for its right to compel the writer's 
performance. See Proposing Release, supra note, at n.44 and 
accompanying text.
    \5\ Initial margin is not considered part of the contract or 
option price, and is returned upon termination of the position, 
unless used to cover a loss. Initial margin in commodity 
transactions thus differs from securities margin, which represents a 
partial payment for securities purchased by a broker on its 
customer's behalf. Initial margin can also be contrasted with 
variation margin, which is credited or assessed at least daily to 
reflect any gains or losses in the contract's value. In contrast to 
initial margin, variation margin represents the system of marking to 
market the contract's value. Through this system, losses on one side 
of a contract position are matched with and paid as profits to the 
other side of the transaction. See Proposing Release, supra note at 
nn.34-38 and accompanying text, and infra note.
    \6\ The clearing organization matches the trade on behalf of the 
exchange, and acts as guarantor of the opposite side of the 
transaction. An FCM executing trades on an exchange must be a member 
of that exchange; nonmembers trade by entering orders through an 
exchange member. To clear transactions with a clearing organization, 
an FCM must be both an exchange member and a member of the clearing 
organization. Non-clearing member FCMs must execute their 
transactions through a clearing member. A commodity transaction, 
therefore, may be effected through several FCMs.
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    Section 17(f) generally permits a fund to maintain its assets only 
in the custody of a bank, a member of a national securities exchange, 
the fund itself, or a national securities depository.7 Under no-
action positions of the Division of Investment Management, a fund may, 
consistent with the requirements of section 17(f), place assets 
relating to commodity transactions in a special account with a third 
party custodian bank (``third party accounts'').8 As a 
consequence, an FCM must use its own assets to effect fund commodity 
trades.
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    \7\ 15 U.S.C. 80a-17(f). See also Investment Company Act rules 
17f-1 [17 CFR 270.17f-1] (custody with members of national 
securities exchanges); 17f-2 [17 CFR 270.17f-2] (custody by funds 
themselves); 17f-4 [17 CFR 270.17f-4] (custody with securities 
depositories); 17f-5 [17 CFR 270.17f-5] (custody of fund securities 
outside the United States).
    \8\ See, e.g., Prudential Bache IncomeVertible Plus Fund, Inc. 
(pub. avail. Nov. 20, 1985). The third party account may be 
maintained in the name of the FCM, but the FCM's ability to withdraw 
these funds is limited. See Proposing Release, supra note, at n.55 
and accompanying text.
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    The Commission proposed rule 17f-6 to respond to certain criticisms 
associated with third party accounts.9 Commenters have indicated 
that third party accounts create systemic liquidity risks by diverting 
FCM capital, which would otherwise be available for use in the 
marketplace, to effect fund transactions.10 Commenters also have 
stated that third party arrangements are unnecessary because they are 
unlikely to provide any special protection to fund assets in FCM 
bankruptcy proceedings. The U.S. Bankruptcy Code and rules of the 
Commodity Futures Trading Commission (``CFTC'') provide that customer 
assets relating to commodity transactions generally have priority over 
other creditors' claims, and are subject to distribution based on each 
customer's pro rata share of the available customer property.11 
Although the issue has not been judicially determined, the CFTC staff 
has stated that assets in a third party account will be subject to the 
same pro rata treatment as all other assets in the FCM's 
custody.12 Finally, third party accounts may be redundant in view 
of the safeguards for customer assets afforded by the CEA and CFTC 
rules.
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    \9\ See Proposing Release, supra note, at nn.61-70 and 
accompanying text.
    \10\ According to a 1988 report, third party accounts may have 
been a source of liquidity stress in the clearing and credit systems 
during the October 1987 market break. Report of the Presidential 
Task Force on Market Mechanisms (1988) VI-73 to -74 (discussing 
statements of members of the Chicago Mercantile Exchange).
    \11\ 11 U.S.C. 766; CFTC rule 190.08 [17 CFR 190.08].
    \12\ CFTC Financial and Segregation Interpretation No. 10, 
Treatment of Funds Deposited in Safekeeping Accounts, 1 Comm. Fut. 
L. Rep. (CCH) Sec. 7120 at 7130 (CFTC Division of Trading and 
Markets, May 23, 1984) [hereinafter Interpretation No. 10]. See also 
CFTC Advisory No. 37-96, Responsibilities of Futures Commission 
Merchants and Relevant Depositories with Respect to Third Party 
Custodial Accounts (July 25, 1996) (discussing Interpretation No. 10 
and requesting that FCMs review their custody arrangements with 
depository institutions to assure that they fully accord with the 
requirements of the CEA and CFTC regulations).
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B. Custodial Protections for Customer Assets Under the Commodity 
Exchange Act

    The CEA and CFTC rules contain provisions designed to safeguard 
customer assets held by an FCM.13 For transactions traded on 
domestic exchanges, extensive regulations, known as the ``segregation 
requirements,'' are designed to protect customer funds in an FCM's 
possession.14 Under these requirements, an FCM may maintain 
customer assets in a single commingled bank account established for 
those assets. The FCM must segregate customer funds from the FCM's own 
assets, and may not use one customer's assets to carry another 
customer's trades.15 Special provisions, which parallel the 
segregation requirements for domestic transactions, govern the 
safekeeping of margin relating to foreign exchange-traded 
transactions.16 CFTC rules require an FCM engaging in foreign 
commodity transactions to maintain a ``secured amount,'' which 
generally represents the assets required to margin the foreign 
commodity trades of its U.S. customers.17
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    \13\ Maintaining assets in an FCM's custody is not without risk. 
An FCM is financially responsible for the trade obligations of its 
customers. Johnson & Hazen, supra note 2, at section 1.10. If an FCM 
becomes insolvent and cannot cover the obligations of a defaulting 
customer, the FCM's non-defaulting customers may be affected. The 
clearing organization has the right to use customer assets held at 
the clearing organization level to satisfy a commodity loss on 
behalf of the FCM's customers. The resulting shortfall in the 
customer assets may be borne by the FCM's non-defaulting customers. 
See supra note 11 and infra note 17, and accompanying text 
(regarding FCM bankruptcy provisions). To date, however, losses of 
customer funds have been rare. See Andrea M. Corcoran & Susan C. 
Ervin, Maintenance of Market Strategies in Futures Broker 
Insolvencies: Futures Position Transfers From Troubled Firms, 44 
Wash. & Lee L. Rev. 849, 863-64 (1987) (``customer losses have been 
forestalled * * *, in significant measure, by the voluntary 
contributions of futures exchanges'').
    \14\ CEA section 4d(2) [7 U.S.C. 6d(2)]; CFTC rules 1.20 to .30 
[17 CFR 1.20 to .30].
    \15\ Customer funds also may be maintained in a commingled bank 
account established by the clearing organization for the FCM's 
customers.
    \16\ CFTC rule 30.7 [17 CFR 30.7].
    \17\ Id. In the event of an FCM's bankruptcy, CFTC rules provide 
for the allocation of property among different types of customer 
accounts, which include customer assets underlying U.S. and foreign 
trades that are subject to the segregation and secured amount 
requirements, respectively. While customer assets relating to U.S. 
and foreign-based trades are subject to the same pro rata treatment 
in FCM bankruptcy proceedings (see supra note 11 and accompanying 
text), customers of U.S. and foreign trades may receive different 
proportional amounts based on the assets attributed to the 
respective account classes. For example, a shortfall in the secured 
amount (e.g., due to a customer default or currency fluctuations 
during bankruptcy proceedings) will result in customers of foreign 
trades receiving a smaller percentage of their margin deposits than 
customers of the segregated account class underlying U.S. trades. 
Although the maintenance of separate customer accounts for U.S. and 
foreign-based trading may result in different pro rata distributions 
in FCM bankruptcy proceedings, these differences generally are 
attributable to the investment risks associated with U.S. and 
foreign-based commodity transactions rather than differences in 
custodial protections.
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    As proposed, rule 17f-6 would have permitted funds to post 
commodity margin with FCMs registered under the CEA, subject to certain 
conditions. Nineteen commenters commented on proposed rule 17f-6. 
Commenters generally supported the rule's adoption, while recommending 
certain changes to the proposed rule.

II. Rule 17f-6

    The Commission is adopting rule 17f-6 with a number of changes 
based on commenters' suggestions. Rule 17f-6, as adopted, extends to 
registered investment companies.18 The adopted
rule incorporates the safeguards that are provided for fund assets 
under the CEA and CFTC rules and, in so doing, generally permits funds 
to effect domestic and foreign commodity transactions in the same 
manner as other market participants.
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    \18\ See rule 17f-6(b)(3) [17 CFR 270.17f-6(b)(3)] (defining 
``Fund''). The Commission notes that trading in futures contracts 
and commodity options ordinarily requires a significant degree of 
management. Since unit investment trust (``UIT'')

[[Page 66209]]

portfolios are generally unmanaged, it is unclear at present to the 
Commission how an investment company that engages is commodity 
trading could meet the requirements imposed on a UIT by the 
Investment Company Act, including section 4(2) thereof [15 U.S.C. 
80a-4(2)].
    Rule 17f-6 also is available to face-amount certificate 
companies that are governed by section 28 of the Investment Company 
Act [15 U.S.C. 80a-28]. See IDS Certificate Company, Investment 
Company Act Release Nos. 21098 (May 26, 1995) [60 FR 28818 (June 2, 
1995)] (Notice of Application) and 21155 (June 21, 1995) [59 SEC 
Docket 1918] (Order) (regarding, among other things, a face-amount 
certificate company's participation in commodity markets and the use 
of third party accounts).
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A. Role of Fund Board of Directors

    Proposed rule 17f-6 would have required a fund's board of directors 
(or the board's delegate) to find that maintaining the fund's assets 
with an FCM is consistent with the best interests of the fund and its 
shareholders. The proposed rule also would have required the board or 
its delegate to establish a monitoring system to ensure compliance with 
the requirements of the rule. Several commenters opposed this approach, 
stating that the level of board involvement was burdensome and 
unnecessary in light of the regulatory safeguards under the CEA and 
CFTC rules.
    Upon further consideration of the issue, the Commission believes 
that the rule's objective standards (in particular, the requirement of 
FCM registration and the related CFTC segregation and secured amount 
requirements) make specific provisions concerning board oversight 
unnecessary.19 As adopted, rule 17f-6 does not require a fund's 
board to select or monitor the FCMs with which the fund places margin. 
Like other aspects of fund operations, however, FCM arrangements will 
remain subject to the board's general oversight.20 In this regard, 
fund boards have a particular responsibility to ask questions 
concerning why and how the fund uses futures and other derivative 
instruments, the risks of using such instruments, and the effectiveness 
of internal controls designed to monitor risk and assure compliance 
with investment guidelines regarding the use of such instruments.
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    \19\ Eliminating the requirement in rule 17f-6 for the board or 
its delegate to select and monitor FCM arrangements differs from the 
approach under rule 17f-5, which governs the custody of fund assets 
outside the United States. Custody arrangements for assets 
maintained outside the United States and related safeguards vary 
widely from one country to another. As such, it appears to be 
appropriate for such rule to require case-by-case evaluations. See 
Custody of Investment Company Assets Outside the United States, 
Investment Company Act Release No. 21259 (July 27, 1995) [60 FR 
39592 (Aug. 2, 1995)]. In contrast, domestic and foreign FCM 
arrangements are subject to a regulatory framework under the CEA 
designed to provide consistent safeguards.
    \20\ The Investment Company Act and state law impose oversight 
responsibilities on a fund's board of directors to protect the 
interests of fund shareholders. See, e.g., Burks v. Lasker, 441 U.S. 
471, 484 (1979).
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B. Eligible FCM Custodians

1. FCM Registration and CFTC Net Capital Requirements
    Like the proposed rule, rule 17f-6 permits a fund to place and 
maintain assets with an FCM that is registered under the CEA.21 
Registered FCMs are subject to the requirements of the CEA and CFTC 
rules thereunder, which, among other things, address the safekeeping of 
assets in FCM custody.22 Rule 17f-6 does not require that the FCM 
be a member of a commodity exchange or clearing organization. Such a 
requirement would not appear necessary for the protection of fund 
assets and would unnecessarily limit the number of FCMs that could be 
used as fund custodians.23 A registered FCM, regardless of its 
membership status, is subject to the CEA and CFTC safekeeping 
requirements.
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    \21\ See rule 17f-6(b)(4) [17 CFR 270.17f-6(b)(4)] (defining 
``Futures Commission Merchant''). The FCM may, in turn, place the 
initial margin with certain other market participants, such as a 
clearing organization, to effect the fund's transactions. See rule 
17f-6(a)(1)(ii) [17 CFR 270.17f-6(a)(1)(ii)].
    \22\ See supra notes 13-17 and infra note 33, and accompanying 
text.
    \23\ See supra note 6 and accompanying text.
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    Under CFTC rules, a registered FCM must maintain adjusted net 
capital equal to or exceeding the greatest of (i) $250,000, (ii) 4% of 
customer funds maintained in safekeeping, or (iii) for an FCM that also 
is a registered securities broker-dealer, the net capital required by 
rule 15c3-1(a) under the Securities Exchange Act of 1934.24 An FCM 
generally must notify the CFTC of potential capital impairment if the 
ratio of its total adjusted net capital to CFTC required minimums falls 
below 150%.25 Rule 17f-6, as proposed, would have required an FCM 
holding fund assets to have at least $20 million in adjusted net 
capital in excess of the CFTC's net capital requirements. In addition, 
the FCM's adjusted net capital would have had to equal or exceed 250% 
of the CFTC's required minimum.26
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    \24\ CFTC rule 1.17 [17 CFR 1.17]; 17 CFR 240.15c3-1(a).
    \25\ CFTC rule 1.12 [17 CFR 1.12]. The CFTC recently amended 
rule 1.12 to strengthen its provisions concerning early warning to 
the CFTC in the event of FCM capital impairment. Early Warning 
Reporting Requirements, Minimum Financial Requirements, Prepayment 
of Subordinated Debt, Gross Collection of Exchange-Set Margin for 
Omnibus Accounts and Capital Charge on Receivables from Foreign 
Brokers (Apr. 25, 1996) [61 FR 19177 (May 1, 1996)] [hereinafter the 
CFTC Early Warning Release].
    \26\ See Proposing Release, supra note, at nn.97-98 and 
accompanying text.
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    Commenters were divided on the proposed approach. Commenters 
opposing the additional capital requirements suggested that, because 
the CFTC net capital requirements serve to protect assets in an FCM's 
custody from loss due to misappropriation or the FCM's insolvency, 
additional capital standards are not necessary. The Commission agrees 
that the CFTC net capital requirements are designed to safeguard fund 
assets in an FCM's custody.27 Therefore, rule 17f-6, as adopted, 
does not require FCM custodians to meet additional capital standards.
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    \27\ See, e.g., CFTC Early Warning Release, supra note 25.
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2. Affiliated FCM Arrangements
    As proposed, rule 17f-6 would have broadly prohibited a fund from 
placing assets with any FCM that is an affiliated person of the fund or 
an affiliated person of such person.28 This provision is being 
adopted substantially as proposed.29 While some commenters viewed 
the scope of this provision as too restrictive, custody by fund 
affiliates raises additional investor protection concerns.30
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    \28\ See Proposing Release, supra note, at nn.104-106 and 
accompanying text; Investment Company Act section 2(a)(3) [15 U.S.C. 
80a-2(a)(3)] (defining affiliated person).
    \29\ Rule 17f-6(b)(4) [17 CFR 270.17f-6(b)(4)]. The prohibition 
has been incorporated into the definition of ``Futures Commission 
Merchant.''
    \30\ For example, to guard against potential abuses resulting 
from control over fund assets by related persons in other contexts, 
rule 17f-2, the Commission's rule governing self-custody 
arrangements, has been read to require fund affiliates to comply 
with its provisions or establish other appropriate safeguards. See, 
e.g., Pegasus Income and Capital Fund, Inc. (pub. avail. Dec. 31, 
1977) (custody by adviser-bank). One commenter acknowledged the 
risks that could be presented by affiliated custody and suggested 
that safeguards similar to those in rule 17f-2 could be required for 
affiliated FCM arrangements.
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C. Domestic and Foreign Commodity Transactions

    As proposed, rule 17f-6 would have permitted a fund to place assets 
with an FCM only in connection with domestic commodity transactions. 
The proposed rule would not have permitted a fund to place assets with 
an FCM in connection

[[Page 66210]]

with commodity transactions traded on a foreign exchange. Commenters 
strongly urged the Commission to expand rule 17f-6 to permit FCM 
custody in connection with foreign exchange-traded transactions. In 
support of this approach, commenters cited the custodial protections 
under the CEA applicable to these transactions and noted the importance 
of international commodity trading in achieving fund management and 
hedging objectives.
    Upon further consideration of the issue, the Commission has decided 
to permit a fund to place assets with a registered FCM in connection 
with commodity trades effected on both domestic and foreign 
exchanges.31 As in the case of domestic transactions, an FCM 
holding the assets of U.S. customers in connection with foreign 
commodity transactions is subject to CFTC regulations designed to 
protect those assets.32 These regulations require the FCM to be 
registered under the CEA, and thus subject to, among other things, the 
secured amount and CFTC net capital requirements.33 Consistent 
with commodity trading practices, the rule permits FCMs to place fund 
assets with a clearing organization and certain other market 
participants as appropriate to effect foreign commodity 
transactions.34
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    \31\ See rule 17f-6(b)(2)(i) and (ii) [17 CFR 270.17f-6(b)(2)(i) 
and (ii)] (defining ``Exchange-Traded Futures Contracts and 
Commodity Options'' for purposes of domestic and foreign 
transactions, respectively). Certain foreign-related commodity 
transactions trade on U.S. exchanges. These transactions, which may 
involve placing fund margin outside the United States, include 
futures contracts and commodity options involving foreign currencies 
and those effected through electronic links between U.S. and foreign 
exchanges. Consistent with CFTC rules and commodity settlement 
practices, a fund engaging in foreign currency transactions on 
domestic exchanges or placing margin overseas in connection with 
domestic trades may enter into subordination agreements. In these 
agreements, commodity customers agree that, if their FCM becomes 
insolvent and there is a margin shortfall, claims to margin securing 
their trades will be subordinated to the claims of customers whose 
accounts are denominated in U.S. dollars or held in the United 
States. See CFTC Financial and Segregation Interpretation No. 12 [53 
FR 46911 (Nov. 21, 1988)] (the subordination requirement seeks to 
tie the risks of a particular jurisdiction or currency to customers 
engaging in commodity transactions relative to that jurisdiction or 
currency). See also Proposing Release, supra note , at nn.148-152 
and accompanying text. In the case of commodity transactions 
effected on foreign exchanges, a subordination agreement is not 
required. In FCM bankruptcy proceedings, when a fund's assets 
relating to foreign exchange-traded transactions are held in one or 
more foreign currencies, the fund may be subject to the risks of 
foreign currency fluctuations of assets held on behalf of other 
customers in other foreign currencies.
    \32\ CFTC rules 30.1 to .11 [17 CFR 30.1 to .11]; see supra 
notes--and accompanying text. In early 1995, Barings PLC, a British 
investment bank, failed after suffering losses of approximately $1 
billion from commodity transactions effected on the Singapore 
Monetary Exchange. Following Barings' collapse, commodity regulators 
from sixteen countries agreed in the ``Windsor Declaration'' on 
principles aimed at improving communications among commodity 
regulators and enhancing surveillance of risks taken by commodity 
market participants. Among the issues addressed was the protection 
of customer assets. See Suzanne McGee, Futures Regulators Agree to 
Cooperate Globally, Wall St. J. C18 (May 18, 1995); Brett D. 
Fromson, Regulators Adopt Crisis Measures, Wash. Post D15 (May 18, 
1995). Earlier this year, commodity exchanges and regulators from 
various countries agreed on specific information-sharing measures. 
Suzanne McGee, Two Information-Sharing Pacts Signed By 50 Exchanges 
and 13 Regulators, Wall St. J. A7B (Mar. 18, 1996).
    \33\ CEA section 4d(1) [7 U.S.C. 6d(1)]; CFTC rules 3.10, 30.4 
[17 CFR 3.10, 30.4]. The CFTC grants to certain foreign commodity 
brokers exemptions from requirements under the CFTC's rules relating 
to transactions effected on foreign exchanges, including FCM 
registration. CFTC rule 30.10 [17 CFR 30.10]. The CFTC grants the 
exemption based on a determination that the foreign broker is 
subject to comparable regulation in its home country. Because of 
uncertainties arising from differing regulatory schemes among 
various jurisdictions, especially those involving the bankruptcies 
of commodities brokers, rule 17f-6 permits funds to use only 
registered FCMs.
    \34\ See infra note and accompanying text (discussing provisions 
of rule 17f-6 that permit an FCM to transfer fund margin to another 
registered FCM, a clearing organization, a member of a foreign board 
of trade, or a U.S. or foreign bank).
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D. Assets Held in FCM Custody

1. Initial Margin
    As proposed, rule 17f-6 would have permitted a fund to place and 
maintain assets with an FCM in amounts necessary to effect its 
commodity trades. Consistent with commodity settlement practices, the 
proposed rule would have allowed a fund to maintain assets with an FCM 
to meet exchange-imposed minimum margin requirements, as well as any 
additional requirements imposed by the FCM. Three commenters supported 
the proposed approach. One commenter recommended that the rule limit 
FCM custody of fund margin to the minimum requirements established by 
an exchange.
    The Commission is adopting this provision of the rule as proposed. 
Rule 17f-6 permits funds to meet FCM margin requirements that exceed 
those of an exchange.35 Limiting FCM custody of initial fund 
margin to exchange requirements is not necessary to safeguard fund 
assets. Such a limitation also would be inconsistent with commodity 
settlement practices, since FCMs typically impose higher margin 
requirements than the margin requirements established by 
exchanges.36
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    \35\ Rule 17f-6(a) [17 CFR 270.17f-6(a)]. Currently, only the 
writer of a commodity option is required to post margin with an FCM. 
Rule 17f-6, therefore, does not apply to funds that purchase 
commodity options through payment of an option premium. See supra 
note and accompanying text.
    \36\ Fink & Feduniak, supra note, at 137. An FCM, for example, 
may impose higher initial margin requirements based on market 
volatility or to retain a cushion in the event an exchange 
subsequently raises its margin requirements. Id. at 137-138.
    Exchange rules or the procedures of the FCM also may restrict 
the types of assets that may be used to satisfy margin requirements. 
A fund may borrow assets from an FCM to meet margin requirements so 
long as the arrangement is consistent with section 18 of the 
Investment Company Act [15 U.S.C. 80a-18]. Section 18 restricts the 
circumstances under which funds may borrow from other persons. 
Borrowing assets from an FCM will not be deemed to violate section 
18, in the case of an open-end fund, or be subject to that section's 
asset coverage requirements, in the case of a closed-end fund, if 
the fund sets aside or provides the FCM with liquid assets that 
collateralize 100% of the market value of the loan. See, e.g., 
Merrill Lynch Asset Management, L.P. (pub. avail. July 2, 1996). See 
also 1 Thomas P. Lemke et al., Regulation of Investment Companies, 
section 8.06[1][a][ii] (1996) (by setting aside fund assets or 
otherwise covering its exposure, a fund avoids the restrictions of 
section 18(f)); 1 Thomas A. Russo, Regulation of the Commodities 
Futures and Options Markets section 1.20 (1983 & Supp. 1993) (FCM 
asset lending arrangements typically are fully collateralized).
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2. Gains on Commodity Transactions
    Once a customer establishes a position with an FCM, it is marked to 
market at least daily to reflect gains and losses in the position's 
value. Gains on commodity transactions are available for collection by 
commodity customers on the next business day following the crediting of 
the gain by the clearing organization.37 In the event of an FCM's 
bankruptcy, if there are insufficient assets to cover all customer 
claims, commodity gains in the FCM's possession may be distributed on a 
pro rata basis to all of the FCM's customers. Allowing unlimited 
amounts of commodity gains to be maintained in an FCM's custody would 
subject fund assets to unnecessary risks.38
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    \37\ A party to a futures contract suffering a loss on its 
position makes a payment (variation margin) in the amount of the 
loss, which is available for collection by the other party to the 
contract on the next business day. See supra note 5. While an option 
writer suffering a loss on its position similarly makes a payment 
covering the loss, the payment is held by the clearing organization 
on behalf of the option holder until the option is exercised; in the 
event of subsequent gains in the writer's position, the writer would 
be entitled to collect the gains from its previous payments held by 
the clearing organization.
    \38\ See Interpretation No. 10, supra note 12, at 7133 n.15 
(indicating that gains on commodity transactions should be collected 
daily). See also supra note 11 and accompanying text. For funds that 
use third party accounts, gains on commodity positions are paid 
directly by an FCM to the fund without flowing through or being held 
in the third party account. Goldman Sachs & Co. (pub. avail. May 2, 
1986). Consequently, the rule's de minimis limitation on the amount 
of gains in an FCM's custody effectively is required for third party 
arrangements.
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    As proposed, rule 17f-6 would have permitted a fund to maintain 
with the

[[Page 66211]]

FCM de minimis amounts of gains on fund commodity transactions; gains 
exceeding the de minimis threshold could be held by an FCM only until 
the next business day. One commenter supported the proposed approach. 
Four other commenters indicated that the amount of commodity gains held 
by an FCM should be determined by the FCM and the fund on an individual 
basis.
    Rule 17f-6, as adopted, retains the proposed requirement governing 
commodity gains in FCM custody.39 This approach gives funds the 
flexibility of not having to withdraw de minimis amounts of gains from 
FCM custody, while limiting the potential for fund assets to be used to 
satisfy the claims of other customers in the event of the FCM's 
bankruptcy.
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    \39\ Rule 17f-6(a)(2) [17 CFR 270.17f-6(a)(2)]. Losses paid to 
an FCM due to declines in a fund's commodity positions represent 
discharged liabilities and not fund assets under section 17(f). 
Montgomery Street Income Securities, Inc. (pub. avail. Apr. 11, 
1983). Losses paid to an FCM, therefore, are not subject to rule 
17f-6.
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E. Contract Requirements and Custodians Used To Effect Commodity 
Transactions

    As proposed, rule 17f-6 would have required a fund to enter into a 
written contract with an FCM custodian, in which the FCM would agree to 
adhere to the CEA and CFTC segregation requirements and to furnish the 
Commission with information concerning the FCM's custody of fund 
margin. The proposed rule also would have required certain contract 
provisions relating to the transfer of fund assets for clearing 
purposes.40
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    \40\ The proposal would have required the FCM to agree that any 
transfer of fund assets for clearing purposes would be to another 
FCM that met the requirements of the rule (other than the 
requirement of a contract with the fund). The FCM also would have 
been permitted to place fund margin with a clearing organization or 
a bank.
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    The adopted rule retains these requirements, modified to reflect 
the use of FCM custodians in connection with foreign exchange-traded 
transactions.41 Thus, in addition to requiring compliance with the 
segregation requirements for domestic trades, the contract must require 
the FCM to comply with the secured amount requirements in connection 
with any foreign transactions.42 The FCM also must agree that any 
other FCM used to effect transactions will be registered with the CFTC, 
comply with the CFTC segregation or secured amount requirements, and 
not be affiliated with the fund. Consistent with commodity settlement 
practices, rule 17f-6 permits an FCM to place fund margin with a 
clearing organization, a member of a foreign board of trade, or a U.S. 
or foreign bank. The FCM must agree to obtain from each entity used for 
clearing purposes, including any other FCM, an acknowledgment that the 
fund's assets are held on behalf of the FCM's customers in accordance 
with provisions under the CEA.43

    \41\ Rule 17f-6(a)(1)(i) to (iii) [17 CFR 270.17f-6(a)(1)(i) to 
(iii)].
    \42\ Last year, the CFTC adopted rules creating a new market for 
eligible professional investors. Section 4(c) Contract Market 
Transactions; Swap Agreements, 60 FR 51323 (Oct. 2, 1995); CFTC 
rules 36.1 et seq. [17 CFR 36.1 et seq.] Transactions in the new 
market by eligible investors, which include funds with total assets 
exceeding $5 million, are exempt from many of the requirements under 
the CEA and related CFTC rules. The CFTC rules applicable to the new 
professional trading market, however, do not affect requirements 
relating to, among other things, segregation and FCM net capital. 
Consequently, funds may participate in the new professional trading 
market and use FCM custodians under rule 17f-6.
    \43\ Rule 17f-6(a)(1)(ii) [17 CFR 270.17f-6(a)(1)(ii)]. See CFTC 
rules 1.20, 30.7(c) [17 CFR 1.20, 30.7(c)] (requiring this 
acknowledgment). See also rule 17f-6(b)(1) [17 CFR 270.17f-6(b)(1)] 
(defining ``Clearing Organization''); rule 17f-6(b)(5) [17 CFR 
270.17f-6(b)(5)] (defining ``U.S. or Foreign Bank''). Proposed rule 
17f-6 would have required that any bank used to hold fund assets 
have a minimum capitalization of $500,000. The adopted rule does not 
impose this requirement because the CFTC addresses the credit-
worthiness of these depositories. See, e.g., CFTC Advisory 87-5 
(Dec. 17, 1987). The Proposing Release requested comment on 
requiring a number of other contract provisions. In particular, the 
Proposing Release requested comment whether fund contracts should 
require FCMs: (i) to provide information at the request of the 
fund's accountants, (ii) to maintain specific records or furnish 
funds with specific reports concerning their margin accounts, and 
(iii) to indemnify funds or insure fund assets against non-trading 
margin losses. While one commenter favored these additional 
requirements, most commenters indicated that they are unnecessary. 
Rule 17f-6 does not include these requirements, since either CFTC 
regulations address these issues (such as recordkeeping) or these 
matters (such as accountants' access and indemnification) can be 
negotiated between the fund and the FCM.
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F. Withdrawal of Assets From FCM Custody

    As proposed, rule 17f-6 would have required a fund to withdraw its 
assets from an FCM promptly in the event the fund's FCM arrangements no 
longer complied with the requirements of the rule. The Proposing 
Release suggested that asset withdrawals would be expected to be made 
within five days of the event triggering the withdrawal.44 Rule 
17f-6, as adopted, requires asset withdrawals to be made as soon as 
reasonably practicable.45 Although a five-day standard appears to 
be a generally appropriate length of time,46 any asset withdrawals 
under the rule would be subject to circumstances (such as the size or 
number of a fund's positions) that indicate a longer period of time 
would be reasonable.
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    \44\ Proposing Release, supra note 1, at n. 129 and accompanying 
text.
    \45\ Rule 17f-6(a)(3) [17 CFR 270.17f-6(a)(3)]. See Custody of 
Investment Company Assets Outside the United States, supra note 19 
(proposing a similar approach for custody arrangements involving 
foreign securities).
    \46\ Cf. CFTC rule 190.02(e) [17 CFR 190.02(e)] (giving a 
trustee in FCM bankruptcy proceedings four days to transfer open 
commodity positions).
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III. Cost/Benefit Analysis

    Rule 17f-6 should not impose any burdens on funds. Rather, the rule 
should benefit funds by permitting, but not requiring, fund margin to 
be maintained directly with FCMs instead of in third party accounts. 
The requirements of rule 17f-6 are consistent with those of the CEA and 
CFTC rules. The rule gives funds the option of placing with FCMs margin 
in the same manner as other participants in the commodity markets.

IV. Summary of Regulatory Flexibility Analysis

    A summary of the Initial Regulatory Flexibility Analysis, which was 
prepared in accordance with 5 U.S.C. 603, was published in Investment 
Company Act Release No. 20313. No comments were received on this 
analysis. The Commission has prepared a Final Regulatory Flexibility 
Analysis in accordance with 5 U.S.C. 604. The Analysis states that the 
new rule will permit funds to maintain their assets with FCMs and other 
entities used for settlement purposes in connection with futures 
contracts and commodity options traded on a U.S. or foreign exchange. 
The Analysis explains that the rule provides flexibility and custodial 
protections in a way that should minimize any impact on, or cost to, 
small business. Cost-benefit information reflected in the ``Cost/
Benefit Analysis'' section of this Release also is reflected in the 
Analysis. A copy of the Final Regulatory Flexibility Analysis may be 
obtained by contacting Nadya B. Roytblat, Mail Stop 10-2, Securities 
and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 
20549.

V. Statutory Authority

    The Commission is adopting rule 17f-6 under sections 6(c) and 38(a) 
of the Investment Company Act [15 U.S.C. 80a-6(c), -37(a)].

List of Subjects in 17 CFR Part 270

    Investment companies, Reporting and recordkeeping requirements, 
Securities.

Text of Adopted Rule

    For the reasons set out in the preamble, Title 17, Chapter II of 
the

[[Page 66212]]

Code of Federal Regulations is amended as follows:

PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940

    1. The authority citation for Part 270 continues to read, in part, 
as follows:

    Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39 unless 
otherwise noted;
* * * * *
    2. By adding Sec. 270.17f-6 to read as follows:


Sec. 270.17f-6  Custody of investment company assets with Futures 
Commission Merchants and Commodity Clearing Organizations.

    (a) A Fund may place and maintain cash, securities, and similar 
investments with a Futures Commission Merchant in amounts necessary to 
effect the Fund's transactions in Exchange-Traded Futures Contracts and 
Commodity Options, Provided that:
    (1) The manner in which the Futures Commission Merchant maintains 
the Fund's assets shall be governed by a written contract, which 
provides that:
    (i) The Futures Commission Merchant shall comply with the 
segregation requirements of section 4d(2) of the Commodity Exchange Act 
(7 U.S.C. 6d(2)) and the rules thereunder (17 CFR Chapter I) or, if 
applicable, the secured amount requirements of rule 30.7 under the 
Commodity Exchange Act (17 CFR 30.7);
    (ii) The Futures Commission Merchant, as appropriate to the Fund's 
transactions and in accordance with the Commodity Exchange Act (7 
U.S.C. 1 through 25) and the rules and regulations thereunder 
(including 17 CFR part 30), may place and maintain the Fund's assets to 
effect the Fund's transactions with another Futures Commission 
Merchant, a Clearing Organization, a U.S. or Foreign Bank, or a member 
of a foreign board of trade, and shall obtain an acknowledgment, as 
required under rules 1.20(a) or 30.7(c) under the Commodity Exchange 
Act [17 CFR 1.20(a) or 30.7(c)], as applicable, that such assets are 
held on behalf of the Futures Commission Merchant's customers in 
accordance with the provisions of the Commodity Exchange Act; and
    (iii) The Futures Commission Merchant shall promptly furnish copies 
of or extracts from the Futures Commission Merchant's records or such 
other information pertaining to the Fund's assets as the Commission 
through its employees or agents may request.
    (2) Any gains on the Fund's transactions, other than de minimis 
amounts, may be maintained with the Futures Commission Merchant only 
until the next business day following receipt.
    (3) If the custodial arrangement no longer meets the requirements 
of this section, the Fund shall withdraw its assets from the Futures 
Commission Merchant as soon as reasonably practicable.
    (b) For purposes of this section:
    (1) Clearing Organization means a clearing organization as defined 
in rule 1.3(d) under the Commodity Exchange Act (17 CFR 1.3(d)) and 
includes a clearing organization for a foreign board of trade.
    (2) Exchange-Traded Futures Contracts and Commodity Options means 
commodity futures contracts, options on commodity futures contracts, 
and options on physical commodities traded on or subject to the rules 
of:
    (i) Any contract market designated for trading such transactions 
under the Commodity Exchange Act and the rules thereunder; or
    (ii) Any board of trade or exchange outside the United States, as 
contemplated in Part 30 under the Commodity Exchange Act.
    (3) Fund means an investment company registered under the Act (15 
U.S.C. 80a-1 et seq.).
    (4) Futures Commission Merchant means any person that is registered 
as a futures commission merchant under the Commodity Exchange Act and 
that is not an affiliated person of the Fund or an affiliated person of 
such person.
    (5) U.S. or Foreign Bank means a bank, as defined in section 
2(a)(5) of the Act (15 U.S.C. 80a-2(a)(5)), or a banking institution or 
trust company that is incorporated or organized under the laws of a 
country other than the United States and that is regulated as such by 
the country's government or an agency thereof.

    Dated: December 11, 1996.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-31891 Filed 12-16-96; 8:45 am]
BILLING CODE 8010-01-P