[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Rules and Regulations]
[Pages 26923-26933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12881]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 270

[Release Nos. IC-22658; IS-1080; File No. S7-23-95]
RIN 3235-AE98


Custody of Investment Company Assets Outside the United States

AGENCY: Securities and Exchange Commission.

ACTION: Final rule.

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SUMMARY: The Commission is adopting amendments to the rule under the 
Investment Company Act of 1940 that governs the custody of investment 
company assets outside the United States. The amendments provide 
investment companies with greater flexibility in managing their foreign 
custody arrangements consistent with the safekeeping of investment 
company assets. The amendments also expand the class of foreign banks 
and securities depositories that may serve as investment company 
custodians.

EFFECTIVE DATE: The amendments will become effective June 16, 1997.

FOR FURTHER INFORMATION CONTACT: Robin S. Gross, Staff Attorney, or 
Nadya B. Roytblat, Assistant Chief, Office of Regulatory Policy, at 
(202) 942-0690, Securities and Exchange Commission, Division of 
Investment Management, 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 amendments to rule 17f-5 (17 CFR 
270.17f-5) under the Investment Company Act of 1940 (15 U.S.C. 80a) 
(the ``Investment Company Act'' or ``Act'').

Table of Contents

I. Executive Summary
II. Introduction and Background
III. Discussion
    A. Decision to Place Fund Assets in a Country
    1. Background
    2. Amended Rule
    B. Delegation of Board Responsibilities
    1.Selecting Delegates
    2. Delegate's Standard of Care
    3. Board Oversight; Delegate Reporting
    C. Selecting, Contracting with, and Monitoring a Foreign 
Custodian

[[Page 26924]]

    1. Selecting a Foreign Custodian
    a. General Standard
    b. Specified Factors
    i. Practices, Procedures and Internal Controls
    ii. Financial Strength and Reputation
    iii. Jurisdiction
    2. Foreign Custody Contract
    a. Indemnification and Insurance
    b. Liens
    c. Omnibus Accounts
    d. Depository Arrangements
    3. Monitoring Custody Arrangements and Withdrawing Fund Assets
    D. Eligible Foreign Custodians
    1. Foreign Banks and Trust Companies
    2. Affiliated Foreign Custodians
    3. Securities Depositories
    E. Assets Maintained in Foreign Custody
    F. Canadian Funds
IV. Effective Date; Compliance Dates
V. Cost/Benefit Analysis and Effects on Competition, Efficiency and 
Capital Formation
VI. Summary of Final Regulatory Flexibility Analysis
VII. Paperwork Reduction Act
VIII. Statutory Authority
Text of Rule

I. Executive Summary

    The Commission is amending rule 17f-5 under the Investment Company 
Act to provide registered management investment companies (``funds'') 
greater flexibility in managing their foreign custody arrangements. The 
amendments expand the class of foreign banks and securities 
depositories that may serve as custodians of fund assets by eliminating 
capital requirements that have precluded funds from using otherwise 
suitable custodians without first obtaining administrative relief from 
the Commission. The amended rule requires instead that the selection of 
a foreign custodian be based on whether the fund's assets will be 
subject to reasonable care if maintained by that custodian, after 
considering all factors relevant to the safekeeping of fund assets, 
including the custodian's financial strength, its practices and 
procedures, and internal controls.
    The amendments eliminate the consideration of ``prevailing country 
risks,'' i.e., risks associated with investment in a particular country 
rather than placing assets with a particular custodian. The Commission 
has concluded that prevailing country risks are investment risks 
appropriately considered by a fund's board or investment adviser when 
deciding whether the fund should invest in a particular country, rather 
than custodial risks to be addressed in rule 17f-5.
    The amendments also permit fund directors to play a more 
traditional oversight role with respect to the custody of fund assets 
overseas. Directors may delegate their duties to select a foreign 
custodian and monitor a fund's foreign custody arrangements to the 
fund's investment adviser, officers, or a U.S. or foreign bank, and are 
no longer required to approve foreign custody arrangements annually.

II. Introduction and Background

    A growing number of funds invest their assets overseas.1 
Investing in foreign markets may present a fund with significant 
operational issues, one of which is the availability of appropriate 
custodians for fund assets. Maintaining securities outside of their 
primary market can add significant costs to investing in that market 
and may preclude foreign investment.2 The availability of 
custodial arrangements in foreign markets where a fund invests, 
therefore, is very important.
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    \1\ Based on available data, the Commission staff estimates that 
at the end of February 1997, approximately 1,666 portfolios with 
assets of nearly $411 billion have investment objectives that 
contemplated significant foreign investments. See also Karen Damato, 
Mutual Funds Drew $24 Billion During January, Wall St. J., Feb. 13, 
1997, at C1 (discussing recent increased investor interest in funds 
that invest overseas).
    \2\ Moving securities away from their primary market may entail 
additional costs in connection with hiring a servicing agent in the 
primary locality to collect and disseminate information with respect 
to the securities, transferring the securities to an eligible 
custodian and procuring insurance for possible loss in transit, and 
exchanging coupons for interest or dividends or for new shares in 
connection with a rights offering. See Exemption for Custody of 
Securities by Foreign Banks and Foreign Securities Depositories, 
Investment Company Act Release No. 12354 (Apr. 5, 1982) (47 FR 
16341, 16342 (April 16, 1982)) (hereinafter 1982 Proposing Release). 
Funds also may be prevented from, or delayed in, selling the 
securities if they are unable to make timely delivery to prospective 
purchasers in the primary market. Id. In addition, the best price 
for a foreign security typically may be obtained in its primary 
market. Id.
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    Section 17(f) of the Act generally permits a fund to maintain its 
assets only in the custody of a U.S. bank and its foreign branches, a 
member of a U.S. securities exchange, the fund itself, or a U.S. 
securities depository.3 Before rule 17f-5 was adopted, funds 
seeking to maintain their assets outside the United States could use 
only foreign branches of U.S. banks as their foreign 
custodians.4
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    \3\ 15 U.S.C. 80a-17(f). Bank custodians must be subject to 
federal or state regulation and have at least $500,000 in aggregate 
capital, surplus, and undivided profits. Investment Company Act 
sections 2(a)(5) (15 U.S.C. 80a-2(a)(5)) (defining bank), and 
26(a)(1) (15 U.S.C. 80a-26(a)(1)) (containing the $500,000 capital 
requirement). See also rule 17f-1 (17 CFR 270.17f-1) (custody by 
members of a U.S. securities exchange), rule 17f-2 (17 CFR 270.17f-
2) (custody by funds themselves), rule 17f-4 (17 CFR 270.17f-4) 
(custody by U.S. securities depositories), and rule 17f-6 (17 CFR 
270.17f-6) (custody by futures commission merchants and commodity 
clearing organizations).
    \4\ See 1982 Proposing Release, supra note 2, at n.7 and 
accompanying text.
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    In 1984 the Commission adopted rule 17f-5, which expanded the 
foreign custody arrangements available to funds.5 The rule 
permits funds to maintain their assets overseas, subject to detailed 
findings by the fund's board of directors with respect to the decision 
to place fund assets in a particular country and with respect to each 
foreign custody arrangement.6 Fund assets may be placed in 
the custody of an ``eligible foreign custodian'': (i) A foreign bank or 
trust company (``foreign bank'') that has more than $200 million in 
shareholders' equity; (ii) a majority-owned subsidiary of a U.S. bank 
or bank holding company (``U.S. bank subsidiary'') that has more than 
$100 million in shareholders' equity; or (iii) a foreign securities 
depository that operates either the central system for the handling of 
securities in that country or a transnational system for the central 
handling of securities.7 Finally, the fund's foreign custody 
arrangements must be governed by a written contract that must be 
approved by the fund's board of directors and contain certain specified 
provisions.8
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    \5\ Exemption for Custody of Investment Company Assets Outside 
the United States, Investment Company Act Release No. 14132 (Sept. 
7, 1984) (49 FR 36080 (Sept. 14, 1984)) (release adopting rule 17f-
5) (hereinafter 1984 Adopting Release). For an administrative 
history of rule 17f-5, 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)) (hereinafter Proposing 
Release) at n.8.
    \6\ The fund's board of directors must determine that the 
custody arrangements are consistent with the best interests of the 
fund and its shareholders (the ``best interests determination''). 
Rule 17f-5(a)(1)(i) through (iii). Notes to the current rule 
enumerate certain factors that the fund's board should consider in 
making the best interests determination. The rule also requires the 
board to monitor the fund's foreign custody arrangements and to 
approve each arrangement at least annually. Rule 17f-5(a)(2), (3).
    \7\ Rule 17f-5(c)(2) (i) through (iv).
    \8\ Rule 17f-5(a)(1)(iii) (A) through (F).
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    By 1995 the Commission had become concerned that the rule's 
provisions unnecessarily restricted foreign custody arrangements. In 
addition, the Commission became concerned that the rule placed 
unnecessary burdens on fund directors that detracted from the amount of 
time they could devote to the many other important duties they are 
assigned under the Act.9 In July 1995, the Commission 
proposed amendments to rule 17f-5 in response to these concerns. To 
make the rule's requirements for board involvement in custody matters 
more consistent with the board's traditional oversight role, the 
proposed amendments would have permitted fund boards to delegate their

[[Page 26925]]

responsibilities to approve and monitor foreign custody arrangements. 
To better reflect modern commercial custody practices, the proposed 
amendments would have revised the standard to be used in evaluating a 
fund's foreign custody arrangements to one that focuses on whether the 
custodial arrangement afforded ``reasonable protection'' for fund 
assets.10 The proposed amendments also would have expanded 
the class of foreign banks, U.S. bank subsidiaries and securities 
depositories that could serve as fund custodians, and eliminated the 
requirement that the fund's foreign custody contract contain certain 
specified provisions.
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    \9\ See Proposing Release, supra note 5, at nn.15-17 and 
accompanying text.
    \10\ The factors that the rule specifies should be considered in 
this regard would have been revised to focus on safekeeping rather 
than investment risks (particularly the factors relating to the 
decision to place fund assets in a country).
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    The Commission received letters from 28 commenters. The commenters 
generally supported the proposed amendments, particularly those 
provisions that would have permitted a fund's board to delegate its 
responsibilities to select and monitor foreign custodians to the fund's 
investment adviser, officers, or a U.S. or foreign bank. The Commission 
is adopting the proposed amendments with several modifications that 
reflect, in part, the commenters' suggestions. The Commission believes 
that the amendments, as adopted, will provide significant additional 
flexibility for funds without reducing the level of investor protection 
afforded by the current rule.

III. Discussion

A. Decision to Place Fund Assets in a Country

1. Background
    Maintaining fund assets outside the United States involves risks 
that relate to the particular custodian (e.g., the risk that the 
custodian selected will not exercise the appropriate level of care with 
regard to fund assets, or that the custodian may not have the financial 
strength, practices, and procedures in place to safeguard the fund's 
assets).11 In addition, maintenance of fund assets overseas 
exposes the fund to systemic risks that may affect the ability of any 
custodian to safeguard fund assets in that country (``prevailing 
country risks''). For example, a country's inefficient settlement 
practices constitute a risk of investing in that country, regardless of 
the level of care that can be provided by a particular custodian. Both 
of these types of risks have been addressed by rule 17f-5, and were to 
be addressed by the proposed amendments.12
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    \11\ These issues also may be present when a fund's assets are 
maintained in the United States. Section 17(f), however, by limiting 
domestic custody arrangements to U.S. banks and certain other 
arrangements subject to Commission regulation, provides some 
assurance that custody arrangements will have appropriate 
safeguards. See supra note 3 and accompanying text.
    \12\ Rule 17f-5 currently requires a fund's board of directors 
to determine that maintaining the fund's assets in a particular 
country is consistent with the best interests of the fund and its 
shareholders. Rule 17f-5(a)(1)(i). Note 1 to the rule requires the 
board, in making this determination, to consider the effects of 
applicable foreign law on the safekeeping of fund assets; the 
likelihood of expropriation, nationalization, freezing, or 
confiscation of the fund's assets; and any reasonably foreseeable 
difficulties in repatriating the fund's assets kept overseas.
    The proposed amendments would have narrowed the scope of the 
prevailing country risks determination to factors that have a closer 
nexus to safekeeping considerations. A fund's board of directors or 
its delegate would have been required to determine that custody of 
the fund's assets in a particular country could be maintained in a 
manner that provided reasonable protection for the fund's assets 
after considering all factors relevant to the safekeeping of such 
assets including: (i) The prevailing practices in the country for 
the custody of the fund's assets; (ii) whether the country's laws 
will affect adversely the safekeeping of the fund's assets, such as 
by restricting the access of the fund's independent public 
accountants to a custodian's books and records, or by affecting the 
fund's ability to recover its assets in the event of a custodian's 
bankruptcy or the loss of assets in a custodian's control; and (iii) 
whether special arrangements that mitigate the risks of maintaining 
the fund's assets in the country would be used.
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    The Proposing Release requested comment whether the rule should 
continue to address prevailing country risks.13 A number of 
commenters suggested that it should not. These commenters asserted that 
prevailing country risks are inherently investment risks because they 
are an inextricable part of the fund's decision to invest in foreign 
securities. These commenters therefore urged the Commission to treat 
the decision to place fund assets in a country as a decision to be made 
by the fund's board or its investment adviser in the context of 
deciding to invest in that country, and as separate from the 
establishment of particular foreign custody arrangements under rule 
17f-5.
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    \13\ Proposing Release, supra note 5, at nn. 62-65 and 
accompanying text.
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2. The Amended Rule
    These comments have caused the Commission to reconsider the 
proposed approach. Once a decision has been made to invest in a 
country, prevailing country risks cannot be avoided, except by 
maintaining assets outside of the country--an alternative that is often 
not possible or practicable. For that reason, prevailing country risks 
would seem inherently a part of the investment risks associated with 
the decision to invest in a particular country and should be considered 
by a fund's board or investment adviser before the fund invests in a 
foreign country. Inclusion of prevailing country risks in rule 17f-5, 
therefore, would appear inconsistent with the nature of those risks.
    The Commission also is concerned that restrictions on a fund's 
approach to prevailing country risks may have the effect of denying 
funds and their shareholders overseas investment opportunities, 
particularly in developing markets. Such a result is inconsistent with 
the overall approach of the Investment Company Act, which generally 
does not limit a fund's ability to assume investment 
risks.14 Moreover, such a result is not mandated by section 
17(f), the legislative history of which suggests that the section was 
intended primarily to prevent misappropriation of fund assets by 
persons having access to assets of the fund.15
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    \14\ But see, e.g., rule 2a-7 under the Investment Company Act 
(17 CFR 270.2a-7) (establishing various limitations on permissible 
investments for money market funds).
    \15\ See Proposing Release, supra note, at n.5; Thomas Harman, 
Eligible Foreign Custodians and the Investment Company Act of 1940, 
46 Bus. Law 1377 (1991).
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    Based upon these considerations, the Commission has decided not to 
address prevailing country risks in rule 17f-5. Rather, the Commission 
believes that such risks should be carefully considered by a fund's 
board or its investment adviser before the fund invests in a foreign 
country, and, if material, disclosed to fund investors.16 
Accordingly, the amended rule focuses exclusively on the selection and 
monitoring of an eligible foreign custodian.
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    \16\ Funds' disclosure obligations are governed by other 
provisions of the securities laws. See, e.g., Item 4(c) of Form N-1A 
(17 CFR 239.15A) (the registration form for open-end funds), and 
Item 8.3 of Form N-2 (17 CFR 274.11a-1) (the registration form for 
closed-end funds). These Items require disclosure in the fund's 
prospectus of the principal risk factors associated with investing 
in the fund. See also Proposing Release, supra note, at nn.175, 176 
and accompanying text.
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    The amendments are not intended and should not be construed, 
however, to diminish the importance of considering the financial 
infrastructure of a foreign country when deciding to invest in that 
country. For example, the country's settlement systems and practices 
can have a significant effect on the liquidity and investment 
characteristics of fund assets.17 The

[[Page 26926]]

amendments similarly are not intended to diminish the contribution that 
the fund's global custodian may make in deciding to place fund assets 
in a foreign country.18 Commenters representing funds and 
custodians agreed that global custodians are a ``primary source of 
information concerning the financial systems and practices of foreign 
markets.'' 19 The Commission, therefore, expects that fund 
boards and investment advisers, in making foreign investment decisions, 
will continue to seek and rely on information and opinions provided by 
the fund's custodian when the custodian has experience with regard to 
foreign custody services.20
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    \17\ A country's settlement systems, for example, may not 
require that payment for securities purchased by a fund be made only 
upon delivery of those securities, or that securities sold by a fund 
be delivered only upon receipt of payment for the securities 
(``delivery vs. payment procedures''). Delivery vs. payment 
procedures can afford significant protections from losses if the 
other party to a transaction defaults on its obligations. See, e.g., 
Group of Thirty, Clearance and Settlement Systems in the World's 
Securities Markets 11 (Mar. 1989). The fact that a foreign market's 
settlement practices do not incorporate these procedures should be 
carefully considered by the fund's board or investment adviser in 
deciding to invest in the country.
    A country's settlement systems and practices also may present 
problems in accounting for fund assets (e.g, establishing whether 
the fund owns the securities or has received dividends or other 
entitlements). See, e.g., Buttonwood International Group, Emerging 
Markets on the Net: India-Securities Infrastructure a Big Problem 
for Investors, at http://www.buttonwood.com/p-i/1996es/india.html 
(discussing, among other things, difficulties resulting from the 
process of registering changes in ownership of securities).
    \18\ See, e.g., John Paul Lee & Richard Schwartz, Global 
Custody: A Guide for the Nineties (1990) (noting that today the 
safekeeping of a fund's foreign investments typically is effected 
through the fund's primary or ``global'' custodian, which uses a 
world-wide network of custodians with which it has established 
relationships); Gordon Altman Butowsky Weitzen Shalov & Wein, a 
Practical Guide to the Investment Company Act 30 (1993) (indicating 
that the fund's custodian typically provides the board with 
information concerning foreign legal restrictions and the 
qualifications of foreign custodians).
    \19\ Letter from Baker & McKenzie to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission (Nov. 3, 1995), File 
No. S7-23-95, at 7-8; see also Letter from the Investment Company 
Institute to Jonathan G. Katz, Secretary, Securities and Exchange 
Commission (Oct. 5, 1995), File No. S7-23-95, at 9. Custodian 
commenters suggested that their role in this regard may expand under 
the amended rule and emphasized that funds and their global 
custodians ``are partners, not adversaries, in seeking to ensure 
that fund assets held outside the United States are properly 
safeguarded.'' Letters from Baker & McKenzie to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission (June 7, 1996 and 
Sept. 10, 1996), File No. S7-23-95, at 3 and 2, respectively.
    \20\ The Commission always has recognized the extent to which 
fund boards rely on third party experts in addressing prevailing 
country risks. See 1984 Adopting Release, supra note 5, at n.12 and 
accompanying text. The failure of a fund's board to obtain 
information from reliable sources concerning the financial systems 
and practices of foreign markets in which the fund makes significant 
investments may in certain instances violate the directors' duty of 
care under applicable corporate and fiduciary law. See, e.g., Task 
Force on the Fund Director's Guidebook, Federal Regulation of 
Securities Committee, Section of Business Law, American Bar 
Association, ``Fund Director's Guidebook,'' 52 Bus. Law. 229, 237 
(1996) (``Compliance with the duty of care under state law is based 
on diligence applied to the ordinary and extraordinary needs of the 
fund, including * * * obtaining and reviewing information on which 
to base decisions, and making appropriate inquiries under particular 
circumstances.'') The Commission does not believe that the 
amendments will discourage fund boards and investment advisers from 
seeking the type of information they need to fulfill their 
responsibilities. Cf. Letter from State Street Bank to Jonathan G. 
Katz, Secretary, Securities and Exchange Commission (Nov. 3, 1995), 
File No. S7-23-95, at 11 (suggesting that ``competitive forces'' may 
place incentives on custodian banks to assume greater responsibility 
for decisions to place fund assets in foreign countries). The 
amendments do not affect in any way the extent to which a 
custodian's opinions and reports may be relied upon by the fund's 
board or the investment adviser, or the custodian's legal liability 
to the fund with respect to any such opinions or reports.
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B. Delegation of Board Responsibilities

    The Commission proposed amending the rule to permit a fund's board 
to delegate its responsibilities to select, contract with, and monitor 
foreign custodians to the fund's investment adviser, officers or a U.S. 
or foreign bank. This approach was intended to permit fund boards to 
play a more traditional oversight role in connection with a fund's 
foreign custody arrangements.21 This approach also sought to 
recognize that in discharging their responsibilities under the rule, 
directors rely heavily on the analysis and recommendations of the 
fund's investment adviser, legal counsel and global 
custodian.22 Most commenters strongly supported the proposed 
amendments permitting delegation of board responsibilities and they are 
adopted substantially as proposed.23
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    \21\ See Proposing Release, supra note 5, at nn.24-26 and 
accompanying text.
    \22\ See supra notes 18-20 and accompanying text. See also, 
Glorianne Stromberg, Regulatory Strategies for the Mid-'90s; 
Recommendations for Regulating Investment Funds in Canada (prepared 
for the Canadian Securities Administrators) 242 (Jan. 1995) 
(suggesting it is unlikely that an individual fund or its investment 
adviser will have the expertise or bargaining power to deal with 
numerous and varied foreign custodians throughout the world).
    \23\ While commenters generally supported delegation, a number 
of commenters suggested that custodian banks should not serve as 
delegates for the decision to place fund assets in a country. It is 
not necessary to address this issue in the amended rule, however, 
because the decision to place fund assets in the country is outside 
the scope of the amended rule. See supra Section III.A. of this 
Release.
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1. Selecting Delegates
    Under the proposed amendments, the board would have been required 
to find that it is reasonable to rely on the delegate to perform the 
delegated responsibilities related to the fund's foreign custody 
arrangements. Most commenters that addressed this aspect of the 
proposal supported the proposed standard, but suggested that the 
Commission discuss the factors to be considered in determining whether 
reliance on a delegate is reasonable.
    The Commission is adopting the proposed reasonable reliance 
standard.24 As stated in the Proposing Release, factors 
typically involved in making this determination include the expertise 
of the delegate and, if applicable, the delegate's intended use of 
third party experts in performing its responsibilities.25 
Other relevant factors may include, for example, the board's ability to 
monitor the delegate's performance or, in the case of a delegate that 
is a foreign bank, the fund's ability to obtain jurisdiction over the 
delegate in the U.S. should problems arise in the delegate's 
performance of its duties.26 The delegate's financial 
strength also is relevant in analyzing its ability to perform its 
responsibilities and indemnify the fund if the delegate fails to adhere 
to the requisite standard of care.27
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    \24\ Amended rule 17f-5(b)(1) (17 CFR 270.17f-5(b)(1)).
    \25\ See Proposing Release, supra note 5, at n.28 and 
accompanying text.
    \26\ If the delegate is a foreign bank, it must be a ``qualified 
foreign bank'' (i.e., regulated as either a banking institution or 
trust company by the government of the country under whose laws it 
is organized or any agency thereof). See amended rule 17f-5(d)(6) 
(17 CFR 270.17f-5(d)(6)). U.S. bank delegates must be subject to 
federal or state regulation by virtue of the definition of bank in 
section 2(a)(5) of the Act (15 USC 80a-2(a)(5)).
    \27\ The amendments, as proposed, would have required a U.S. 
bank delegate to have an aggregate of capital, surplus and undivided 
profits (``CSP'') of $500,000--the aggregate CSP required for a U.S. 
bank to serve as a custodian for fund assets. See section 17(f)(1) 
of the Act (15 U.S.C. 80a-17(f)(1)) (requiring bank custodians to 
meet the qualifications prescribed by section 26(a) of the Act (15 
U.S.C. 80a-26(a)) for the trustees of unit investment trusts). The 
Proposing Release requested comment whether foreign bank delegates 
should meet specific capital standards. Commenters were divided on 
this point. One commenter supported a minimum capital requirement 
for foreign bank delegates to avoid the inequity of subjecting only 
U.S. banks to minimum capital requirements. Other commenters 
suggested that, since the financial strength of a foreign custodian 
would be a factor in deciding to use it as a custodian for fund 
assets, the aggregate CSP requirement, or other minimum financial 
standards for delegates, were unnecessary. Consistent with the 
approach of focusing on financial strength, rather than specified 
minimum capital (as discussed in Section III.D.1 of this Release), 
the amended rule does not require a U.S. bank delegate to have a 
specified CSP.
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    Certain commenters suggested that the board's responsibilities 
under the rule be delegable solely to the fund's custodian bank as the 
entity most qualified to provide such services. The Commission 
continues to believe that the board should have the flexibility to

[[Page 26927]]

delegate foreign custody decisions to the entity it determines is in 
the best position to evaluate the particular delegated aspects of the 
fund's foreign custody arrangements.28 For example, under 
the delegation provisions of the amended rule, one delegate may assume 
responsibility for evaluating bank custodians, while another may be 
responsible for evaluating depositories.
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    \28\ Similarly, a fund's board could select as delegate the 
entity having the greatest expertise with a geographic region. See 
Andrew Sollinger, Breaking Away, Institutional Investor 171 (Sept. 
1991) (noting that U.S. custodians may use different subcustodian 
networks for different geographic regions).
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    The Commission notes that the terms of the delegation must be 
agreed upon by the board and the delegate. The potential delegate must 
agree to assume the delegated responsibilities and the delegate and the 
fund's board may agree to guidelines and procedures under which the 
delegate will exercise its responsibilities. If a foreign country, for 
example, has a depository that, as a practical matter, must be used if 
the fund is going to place assets in that country (``compulsory 
depository''), the fund's board may conclude that the investment 
adviser would be the appropriate delegate for evaluating the compulsory 
depository.29
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    \29\ The amendments, as proposed, would have expressly addressed 
compulsory depositories, and would have required the evaluation of a 
compulsory depository to be made in the context of the decision to 
place fund assets in that country. This approach was designed to 
address the expectation that, because of the depository's compulsory 
nature, the fund's custodian would decline to assume the 
responsibility for evaluating it. The Commission recognized, 
however, that conceptually the decision to use a compulsory 
depository appeared to fall within the scope of the rule's 
provisions governing the selection of particular custodians. The 
rule, as proposed to be amended, would have required the fund's 
board or its delegate to make the same findings with respect to a 
compulsory depository as those required for the selection of any 
other type of foreign custodian. See Proposing Release, supra note 
5, at n.71. Because the amended rule does not address the decision 
to place fund assets in a country, the Commission has concluded that 
it is not necessary for the rule to distinguish between compulsory 
depositories and other types of foreign custodians.
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2. Delegate's Standard of Care
    The Proposing Release requested comment whether the rule should 
provide a standard of care to be used by a delegate in making custodial 
decisions. Several commenters suggested that the rule should provide 
guidance in this regard. These commenters expressed the view that if 
the Commission did not clarify this aspect of the amendments, the 
delegation provisions would be unworkable because potential delegates 
would be unwilling to risk being held liable for losses despite 
exercising reasonable care.
    The amended rule requires a delegate to exercise reasonable care in 
performing the delegated duties.30 The rule makes clear that 
reasonable care, in this context, requires the delegate to exercise the 
care, prudence and diligence that a person having the responsibility 
for the safekeeping of fund assets would exercise.31 This 
provision is designed to ensure that delegates adhere to a threshold 
standard of care. Fund boards and their delegates may agree that the 
delegate should adhere to a higher standard of care.
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    \30\ Amended rule 17f-5(b)(3) (17 CFR 270.17f-5(b)(3)).
    \31\ A substantially similar standard of care was suggested by 
fund and custodian commenters. See also infra note 36, (discussing a 
custodian's standard of care under Article 8 of the Uniform 
Commercial Code (``U.C.C.'')).
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3. Board Oversight; Delegate Reporting
    The Commission is amending the rule, as proposed, to no longer 
require the board to review or approve the fund's foreign custody 
arrangements annually. The amended rule does require the delegate to 
provide the board with written reports notifying it of the placement of 
the fund's assets with a particular custodian.32 The 
delegate also must provide written reports to the board concerning any 
material change in the fund's foreign custody arrangements (``material 
change reports'').33 These reports are intended to 
facilitate the board's oversight of the delegate's performance. 
Commenters generally agreed that delegate reporting is desirable.
---------------------------------------------------------------------------

    \32\ Amended rule 17f-5(b)(2) (17 CFR 270.17f-5(b)(2)).
    \33\ Id. A material change in the fund's arrangements would 
include, for example, a delegate's decision to remove the fund's 
assets from a particular custodian. A material change also could 
include events that may adversely affect a foreign custodian's 
financial or operational strength, such as a change in control 
resulting from a sale of the custodian's operations. If appropriate, 
the material change report would discuss the reasons for continuing 
to maintain the fund's assets with a particular custodian.
---------------------------------------------------------------------------

    The proposed amendments would have required the reports to be 
provided no later than the next regularly scheduled board meeting 
following the event necessitating the report. One commenter expressed 
concerns about the application of this requirement to fund boards that 
do not have regularly scheduled meetings. The amended rule requires 
material change reports to be provided at such times as the fund's 
board deems reasonable and appropriate based on the circumstances of 
the fund's foreign custody arrangements.34 This provision 
should provide fund boards with the flexibility to tailor the reporting 
requirements to the fund's particular circumstances. Consistent with 
the provision, a fund's board could, for example, require the reports 
at the next regularly scheduled board meeting, as originally proposed. 
The board also may require the reports more or less frequently (e.g., 
within 30, 60 or 90 days of the event or annually) as the board 
determines is reasonable and appropriate.
---------------------------------------------------------------------------

    \34\ Amended rule 17f-5(b)(2) (17 CFR 270.17f-5(b)(2)).
---------------------------------------------------------------------------

C. Selecting, Contracting With, and Monitoring a Foreign Custodian

1. Selecting a Foreign Custodian
a. General Standard
    Rule 17f-5 currently requires a fund's board to find that the 
fund's foreign custody arrangements are consistent with the best 
interests of the fund and its shareholders.35 Consistent 
with the goal of requiring foreign custody arrangements to be evaluated 
based on the level of safekeeping they will afford fund assets, the 
Commission proposed amending the rule to require a finding that the 
fund's foreign custody arrangement will provide ``reasonable 
protection'' for fund assets. The proposed reasonable protection 
standard was intended to facilitate evaluation of foreign custody 
arrangements by focusing exclusively on the safekeeping of fund assets.
---------------------------------------------------------------------------

    \35\ Rule 17f-5(a)(2).
---------------------------------------------------------------------------

    Several commenters viewed the proposed reasonable protection 
standard as a results-oriented standard that could effectively render 
the entity making the determination a guarantor against any loss of 
fund assets in foreign custody. A number of commenters recommended that 
the rule require instead that the selection of a fund's foreign 
custodian be based on a determination that the custodian will provide 
``reasonable care'' for the fund's assets in its custody (``reasonable 
care standard''). The commenters suggested that this standard of care 
would be more consistent with the way in which custodians traditionally 
have carried out their responsibilities.36 Commenters also 
noted that a reasonable protection

[[Page 26928]]

standard would suggest that the level of custodial protection that is 
deemed ``reasonable'' would vary from fund to fund.
---------------------------------------------------------------------------

    \36\ For example, the newly revised Article 8 of the U.C.C. 
(which has been adopted in 29 states, as of December 1996), 
addresses the duty of care to be exercised by a custodian (or other 
``securities intermediary''). Section 8-504 provides that in the 
absence of an agreement, the custodian should exercise ``due care in 
accordance with reasonable commercial standards.'' (Section 8-509 
recognizes that regulatory law may impose a higher standard.) Note 4 
to Section 8-504 observes that ``(the duty of care includes both 
care in the intermediaries' own operations and care in the selection 
of other intermediaries through whom the intermediary holds the 
assets in question.''
---------------------------------------------------------------------------

    In proposing the reasonable protection standard, the Commission 
emphasized that the delegate would not be required to find that fund 
assets could never be lost while in the foreign custodian's possession. 
Instead, the focus would have been on the reasonableness of a 
custodian's protections for the fund's assets, based on all relevant 
factors and, in particular, those factors that would have been 
specified in the rule.37 Thus, the proposed standard was not 
intended to be substantially different than the reasonable care 
standard suggested by the commenters. Nonetheless, recognizing the 
benefits of using terminology currently used and commonly understood by 
participants in fund custodial arrangements, the Commission has decided 
to adopt a ``reasonable care'' standard as suggested by commenters. The 
use of this terminology also underscores the objective nature of the 
standard for determining whether a fund's custodial arrangements in a 
particular country satisfy a ``reasonableness'' standard.
---------------------------------------------------------------------------

    \37\ See Proposing Release, supra note 5, at n.80 and 
accompanying text.
---------------------------------------------------------------------------

    The amended rule requires the fund's board or its delegate (the 
``Foreign Custody Manager'') to determine that the fund's assets will 
be subject to reasonable care if maintained with the foreign 
custodian.38 This determination would be based on standards 
applicable to custodians in the relevant market.39 In making 
this determination, the Foreign Custody Manager must consider all 
factors relevant to the safekeeping of fund assets, including the 
custodian's practices, procedures and internal controls, its financial 
strength, reputation and standing, and whether the fund will be able to 
obtain jurisdiction over and enforce judgments against the 
custodian.40 The Commission notes that the reasonable care 
standard is merely a threshold standard, and that fund boards and their 
delegates have the flexibility to agree that the delegate will select 
foreign custodians that will exercise a higher degree of care with 
respect to fund assets.
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    \38\ Amended rule 17f-5(c)(1) (17 CFR 270 17f-5(c)(1)).
    \39\ Id. As noted in the Proposing Release, supra note 5, at 
nn.88-89 and accompanying text, while reference to U.S. standards 
may be relevant in determining whether the fund's assets will be 
maintained with reasonable care, the rule does not require parity 
between foreign and U.S. custodial arrangements.
    \40\ Amended rule 17f-5(c)(1) (i) through (iv) (17 CFR 270.17f-
5(c)(1) (i) through (iv)).
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b. Specified Factors
    The amended rule requires the Foreign Custody Manager to consider 
all factors relevant to the safekeeping of fund assets. The rule 
identifies several specific factors that the Foreign Custody Manager 
must consider when selecting a foreign custodian.
i. Practices, Procedures and Internal Controls
    The amended rule states that the foreign custodian's practices, 
procedures, and internal controls are among the factors that must be 
considered in deciding whether the fund's assets will be subject to 
reasonable care.41 As noted in the Proposing Release, the 
protections provided by custodians within a foreign country can vary 
widely.42 The amended rule specifies certain additional 
factors that should be considered in assessing the custodian's internal 
controls: The physical protections the custodian makes available for 
certificated securities (e.g., the use of vaults or other facilities), 
the custodian's method of keeping custodial records (e.g., the use of 
computers, microfilm or paper records), as well as security and data 
protection practices (e.g., alarm systems and the use of pass codes and 
back-up procedures for electronically stored information). The proposed 
amendments would have treated these factors as related to the decision 
to place fund assets in a country.43 Commenters suggested, 
and the Commission agrees, that these factors also should be considered 
in selecting a particular foreign custodian.44
---------------------------------------------------------------------------

    \41\ Amended rule 17f-5(c)(1)(i) (17 CFR 270.17f-5(c)(1)(i)).
    \42\ See Proposing Release, supra note 5, at nn.88-89 and 
accompanying text. For example, if delivery vs. payment procedures 
are not part of the settlement practices of a particular foreign 
market, some custodians in that market might provide safeguards that 
address the lack of such procedures, while others might not. See, 
e.g., Department of the Treasury, Office of Comptroller of the 
Currency, Emerging Market Country Products and Trading Activities 20 
(Dec. 1995) (discussing alternatives to delivery vs. payment 
procedures). Such differences among custodians should be considered 
in determining whether a particular custodian will provide 
reasonable care for fund assets. See supra note 17 (discussing the 
delivery vs. payment procedures).
    \43\ See Proposing Release, supra note 5, at n.54 and 
accompanying text.
    \44\ See Letter from Chase Manhattan Bank to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission (Oct. 6, 1995), File 
No. S7-23-95, at n.4 (noting that the use of vaults and computers, 
for example, is important with respect to any particular foreign 
custodian).
---------------------------------------------------------------------------

ii. Financial Strength and Reputation
    The amended rule requires the Foreign Custody Manager to consider 
whether the foreign custodian has the requisite financial strength to 
provide reasonable care for fund assets.45 Particular 
emphasis should be placed on evaluating the custodian's financial 
strength, since the amended rule no longer requires the foreign 
custodian to have a specified minimum shareholders' 
equity.46 As noted in the Proposing Release, in considering 
financial strength, the Foreign Custody Manager should assess the 
adequacy of the custodian's capital with a view of protecting the fund 
against the risk of loss from a custodian's insolvency.47
---------------------------------------------------------------------------

    \45\ Amended rule 17f-5(c)(1)(ii) (17 CFR 270.17f-5(c)(1)(ii)).
    \46\ See infra, Section III.D.1 of this Release.
    \47\ See Proposing Release, supra note , at nn.125-131 and 
accompanying text.
---------------------------------------------------------------------------

    In addition, consideration must be given to the custodian's 
reputation and standing generally. The amended rule does not limit the 
Foreign Custody Manager to considering the foreign custodian's 
reputation in the country where the custodian is located. This approach 
seeks to provide greater flexibility to evaluate a custodian's 
reputation based on the facts and circumstances relevant to the 
particular custodian (such as the custodial services it provides in 
other jurisdictions).48
---------------------------------------------------------------------------

    \48\ Amended rule 17f-5(c)(1)(iii) (17 CFR 270.17f-
5(c)(1)(iii)). The amended rule no longer addresses a custodian's 
efficiency and relative costs.
---------------------------------------------------------------------------

iii. Jurisdiction
    The amended rule also requires the Foreign Custody Manager to 
assess the likelihood of U.S. jurisdiction over and enforcement of 
judgments against a foreign custodian.49 This provision is 
designed to allow the Foreign Custody Manager to consider various 
factors, including whether a foreign custodian has branch offices in 
the United States. The Foreign Custody Manager should evaluate other 
jurisdictional and enforcement means such as whether the foreign 
custodian has appointed an agent for service of process in the United 
States or has consented to jurisdiction in this country. The Commission 
recognizes that U.S. jurisdiction may not be obtainable over certain 
foreign depositories and other custodians, and an affirmative finding 
of U.S. jurisdiction would not be required. Rather, the existence or 
absence of U.S. jurisdiction would have to be considered in making the 
overall

[[Page 26929]]

determination that the custodian will provide reasonable care for fund 
assets.
---------------------------------------------------------------------------

    \49\ Amended rule 17f-5(c)(1)(iv) (17 CFR 270.17f-5(c)(1)((iv)).
---------------------------------------------------------------------------

2. Foreign Custody Contract
    Rule 17f-5 currently requires a fund's foreign custody arrangements 
to be governed by a written contract that the fund's board determines 
is in the best interests of the fund and which contains specified 
provisions.50 The proposed amendments would have eliminated 
the requirement that specific provisions be included in the contract 
but would have required the Foreign Custody Manager to determine that 
the contract would provide reasonable protection for fund assets. 
Although a small number of commenters supported the proposed approach, 
commenters generally favored retaining the contract requirements in the 
rule as benefitting funds and their shareholders. The commenters 
asserted, among other things, that the rule's requirements have 
resulted in international standards for foreign custody agreements that 
have served to protect investors.
---------------------------------------------------------------------------

    \50\ Rule 17f-5(a)(1)(iii). The contract generally must provide 
that: (A) The fund will be indemnified and its assets insured in the 
event of loss; (B) the fund's assets will not be subject to liens or 
other claims in favor of the foreign custodian or its creditors; (C) 
the fund's assets will be freely transferable without the payment of 
money; (D) records will be kept identifying the fund's assets as 
belonging to the fund; (E) the fund's independent public accountants 
will be given access to those records or confirmation of the 
contents of those records; and (F) the fund will receive periodic 
reports, including notification of any transfers to or from the 
fund's account. Rule 17f-5(a)(1)(iii)(A) through (F).
---------------------------------------------------------------------------

    In light of these comments, the Commission has concluded that the 
amended rule should continue to require foreign custody arrangements to 
be governed by a written contract. Consistent with the new standard for 
evaluating foreign custody arrangements, the amended rule requires that 
the Foreign Custody Manager determine that the contract will provide 
reasonable care for fund assets.51 The amended rule also 
retains the specific contract requirements.52 In addition, 
the amended rule permits the contract to contain alternative provisions 
in lieu of those specified in the rule. The Foreign Custody Manager 
must determine that the alternative provisions, in their entirety, will 
provide the same or a greater level of care and protection for fund 
assets as the specified provisions, in their entirety.53 
This change should provide funds and their custodians with the 
flexibility to take advantage of innovations that are consistent with 
investor protection. Finally, as discussed below, the specified 
contract requirements have been modified to reflect commenters' 
suggestions and staff interpretive positions.
---------------------------------------------------------------------------

    \51\ Reasonable care, in this context, would be determined by 
reference to the same standards used in selecting the foreign 
custodian.
    \52\ Amended rule 17f-5(c)(2)(i) (17 CFR 270.17f-5(c)(2)(i)).
    \53\ Amended rule 17f-5(c)(2)(ii) (17 CFR 270.17f-5(c)(2)(ii)).
---------------------------------------------------------------------------

a. Indemnification and Insurance
    Rule 17f-5 currently requires the foreign custody contract to 
provide that the fund will be adequately indemnified and its assets 
adequately insured in the event of loss.54 This provision 
has been interpreted as permitting the contract to provide for 
indemnification (but not insurance) if the indemnification arrangements 
would adequately protect the fund.55 In response to the 
commenters' suggestions, the Commission has clarified the provision in 
rule 17f-5 to reflect this interpretation.56 The amended 
rule specifies that the contract must provide for indemnification or 
insurance arrangements (or any combination of the foregoing) such that 
the fund will be adequately protected against the risk of loss of 
assets held in accordance with the contract.57
---------------------------------------------------------------------------

    \54\ Rule 17f-5(a)(1)(iii)(A).
    \55\ See Investment Company Institute (Nov. 4, 1987).
    \56\ Amended rule 17f-5(c)(2)(i)(A) (17 CFR 270.17f-
5(c)(2)(i)(A)).
    \57\ See Investment Company Institute, supra note 55.
---------------------------------------------------------------------------

b. Liens
    Rule 17f-5 currently requires the foreign custody contract to 
provide that the fund's assets will not be subject to any right, 
charge, security interest, lien or claim of any kind in favor of the 
foreign custodian or its creditors except a claim of payment for the 
safe custody or administration of the fund's assets.58 
Commenters suggested that in many jurisdictions, cash deposits may 
become subject to creditors' claims if a custodian becomes bankrupt. 
The rule as amended addresses this issue by providing that the 
prohibition against liens does not apply to cash deposits that may 
become subject to creditors' claims or rights arising under bankruptcy, 
insolvency, or other similar laws.59 If a fund places assets 
with a custodian in a jurisdiction in which the deposits can become 
subject to a lien, the Foreign Custody Manager should take this factor 
into account in determining whether the foreign custodian has the 
requisite financial strength to provide reasonable care for fund 
assets, and in establishing monitoring procedures with respect to the 
custodial arrangement.60 The Foreign Custody Manager, for 
example, should consider adopting procedures for assuring that the 
amount maintained in deposit accounts that could be subject to liens is 
kept to a minimum or explore reasonable alternatives to cash deposits.
---------------------------------------------------------------------------

    \58\ Rule 17f-5(a)(1)(iii)(B).
    \59\ Amended rule 17f-5(c)(2)(i)(B) (17 CFR 270.17f-
5(c)(2)(i)(B)).
    \60\ See infra Section III.C.3 of this Release.
---------------------------------------------------------------------------

c. Omnibus Accounts
    In an ``omnibus account'' structure, the assets of more than one 
custodial customer are contained in an account that has been 
established, typically by and in the name of an intermediary custodian, 
with a foreign bank or securities depository. Rule 17f-5 currently 
requires the foreign custody contract to provide that adequate records 
will be maintained identifying the assets in foreign custody as 
belonging to the fund.61 Although the Commission staff has 
taken the position that the current rule does not prescribe a specific 
manner for keeping custodial records, and therefore does not prohibit 
omnibus accounts,62 several commenters recommended amending 
the rule to specifically recognize the permissibility of omnibus 
accounts.
---------------------------------------------------------------------------

    \61\ Rule 17f-5(a)(1)(iii)(D).
    \62\ See State Street Bank & Trust Company (Feb. 28, 1995).
---------------------------------------------------------------------------

    The amended rule provides that the custodian's records may either 
identify the assets as belonging to the fund or as being held by a 
third party for the benefit of the fund.63 The amended rule 
therefore recognizes that in an omnibus account structure, the 
securities depository's books may show that the custodian is the owner 
of the fund's assets. The amended rule makes clear, however, that the 
fund's interest in the account should be reflected on the books of the 
custodian.64
---------------------------------------------------------------------------

    \63\ Amended rule 17f-5(c)(2)(i)(D) (17 CFR 270.17f-
5(c)(2)(i)(D)).
    \64\ Id. A conforming change has been made to paragraph 
(c)(2)(i)(F) of the rule, which requires that the fund receive 
notice of any transfers of fund assets to or from the custodian. 
This notice provision requires notice of transfers to or from third 
party accounts. Amended rule 17f-5(c)(2)(i)(F) (17 CFR 270.17f-
5(c)(2)(i)(F)).
---------------------------------------------------------------------------

d. Depository Arrangements
    The Commission understands that foreign depository arrangements 
typically are governed not by contract, but pursuant to rules or 
practices of the depository.65 To accommodate the use

[[Page 26930]]

of these depositories, the Commission is amending rule 17f-5 to clarify 
that the provisions required to be in the custody contract may be 
reflected in the rules or established practices or procedures of the 
depository, or in any combination of the foregoing.66
---------------------------------------------------------------------------

    \65\ Typically, the contractual arrangement pursuant to which 
fund assets are held in a foreign depository involves an eligible 
foreign bank that is itself a subcustodian of the fund's U.S. 
custodian. Rule 17f-5 currently does not require the foreign 
depository to be party to the fund's foreign custody contract. See 
Proposing Release, supra note 5, at nn. 98-100 and accompanying 
text.
    \66\ Amended rule 17f-5(c)(2) (17 CFR 270.17f-5(c)(2)).
---------------------------------------------------------------------------

3. Monitoring Custody Arrangements and Withdrawing Fund Assets
    Rule 17f-5 currently contains detailed provisions concerning board 
oversight and monitoring of foreign custodial 
arrangements.67 The amended rule replaces these provisions 
with a requirement that the Foreign Custody Manager establish a system 
to monitor the appropriateness of maintaining the fund's assets with a 
particular custodian and the fund's foreign custody 
contract.68 Commenters supported these amendments.
---------------------------------------------------------------------------

    \67\ Rule 17f-5(a) (2) through (4).
    \68\ Amended rule 17f-5(c)(3)(i) (17 CFR 270.17f-5(c)(3)(i)).
---------------------------------------------------------------------------

    If a foreign custody arrangement no longer meets the requirements 
of the amended rule, the fund must withdraw its assets from the 
custodian as soon as reasonably practicable.69 Rule 17f-5's 
monitoring requirement is intended to result in the Foreign Custody 
Manager receiving sufficient and timely information to permit it to 
respond to material changes in the fund's foreign custody arrangement. 
The amended rule focuses on the importance of taking prompt action 
based on the circumstances presented. For example, a fund that places 
substantially all of its assets with one custodian in a single country 
may require more time to withdraw those assets than a fund that has 
placed only a small percentage of its assets with a particular 
custodian in a particular country.
---------------------------------------------------------------------------

    \69\ Amended rule 17f-5(c)(3)(ii) (17 CFR 270.17f-5(c)(3)(ii)). 
Current rule 17f-5(a)(4) requires fund assets to be withdrawn within 
180 days under these circumstances.
---------------------------------------------------------------------------

D. Eligible Foreign Custodians

1. Foreign Banks and Trust Companies
    Rule 17f-5 currently limits the class of ``eligible foreign 
custodians'' to foreign banks and trust companies that have more than 
$200 million in shareholders' equity and U.S. bank subsidiaries that 
have more than $100 million in shareholders' equity.70 The 
Commission proposed eliminating these requirements in favor of a more 
flexible standard that allows the Foreign Custody Manager to take into 
account all factors that affect the foreign custodian's financial 
strength and its ability to provide custodial services, including 
credit and market risks.71 Commenters strongly supported 
these amendments.
---------------------------------------------------------------------------

    \70\ Rule 17f-5(c)(2)(i), (ii).
    \71\ See Proposing Release, supra note 5, at nn.124-126 and 
accompanying text.
---------------------------------------------------------------------------

    Under the amended rule, any foreign bank or trust company that is 
subject to foreign bank or trust company regulation, as well as any 
U.S. bank subsidiary, may be an eligible foreign 
custodian.72 As discussed above, a custodian's financial 
strength is an important factor to be considered in selecting a foreign 
custodian. The amended rule requires the Foreign Custody Manager to 
evaluate the financial strength of a foreign custodian in determining 
whether the fund's assets will be subject to reasonable care if 
maintained with that custodian.73
---------------------------------------------------------------------------

    \72\ Amended rule 17f-5(a)(1) (17 CFR 270.17f-5(a)(1)).
    \73\ See supra Section III.C.1.b.ii of this Release.
---------------------------------------------------------------------------

2. Affiliated Foreign Custodians
    Rule 17f-5 currently does not address affiliated foreign custody 
arrangements. Under the proposed amendments, eligible foreign banks and 
trust companies would have been prohibited from being affiliated 
persons of the fund or affiliated persons of such persons. The 
Commission proposed this approach because rule 17f-2 under the 
Investment Company Act, the rule that governs funds' self-custody 
arrangements and has been interpreted by the Commission staff to apply 
to affiliated custody arrangements, appeared to be unworkable in the 
foreign custody context.74
---------------------------------------------------------------------------

    \74\ See Proposing Release, supra note 5, at n.138; Pegasus 
Income and Capital Fund, Inc. (Dec. 31, 1977) (to guard against 
potential abuses resulting from control over fund assets by related 
persons, rule 17f-2 (17 CFR 270.17f-2) has been applied to 
affiliated custody arrangements). Rule 17f-2 requires, among other 
things, that fund assets be maintained in a bank that is subject to 
state or federal regulation; the fund's assets also must be subject 
to Commission inspection and verified by an independent public 
accountant. Rule 17f-2(b), (d), (e) (17 CFR 270.17f-2(b), (d), (e)).
---------------------------------------------------------------------------

    Commenters generally disagreed with the proposed prohibition, 
arguing that it would be particularly troublesome in certain markets 
where there is a limited number of eligible custodians. In response to 
these comments, and upon further consideration of the issue, the 
Commission is not including the proposed prohibition on foreign 
affiliated custody arrangements in rule 17f-5 as amended. The 
Commission will consider the issues raised by foreign affiliated 
custody arrangements when it considers comprehensive amendments to rule 
17f-2.
    The Commission understands, however, that a number of market 
participants currently use arrangements involving an unaffiliated 
primary custodian of the fund and a foreign sub-custodian that is 
affiliated with the fund.75 The Commission is of the view 
that such an arrangement, provided it is structured with appropriate 
oversight and controls by the unaffiliated intermediary (i.e., the 
primary custodian), may adequately address the concerns of self-
custody. The risks of misappropriation of fund assets are mitigated 
when the custody arrangement is entered into by, and operated through, 
an unaffiliated intermediary custodian and is subject to adequate 
independent scrutiny.
---------------------------------------------------------------------------

    \75\ See supra note 18 and accompanying text (discussing primary 
custodians).
---------------------------------------------------------------------------

    The Commission believes that this generally would be the case when 
the fund's assets are held by the foreign sub-custodian in an omnibus 
account in the name of the primary custodian, so as to preclude 
specific identification of fund assets by the affiliated sub-custodian. 
In addition, adequate involvement by an unaffiliated custodian would 
require that the sub-custodian be permitted to settle transactions 
involving fund assets solely on receipt of instructions from the 
primary custodian (which, in turn, receives its instructions from the 
fund).76 The primary custodian also should closely monitor 
the fund's account to assure that unauthorized transactions have not 
occurred, and the fund's auditors should review and test the monitoring 
and control safeguards for fund assets.
---------------------------------------------------------------------------

    \76\ The affiliated sub-custodian should not share personnel 
with other affiliates of the fund (e.g., the fund's investment 
adviser) to assure the integrity of the safeguards for fund assets.
---------------------------------------------------------------------------

3. Securities Depositories
    Rule 17f-5 currently includes among eligible foreign custodians a 
foreign securities depository or clearing agency that operates the only 
system for the central handling of securities or equivalent book-
entries in a country (the ``only system requirement'').77 
The only system requirement was designed to ensure a country's interest 
in establishing and maintaining a depository's integrity. Because the 
requirement has been unnecessarily restrictive, the Commission proposed 
to eliminate it.78 Commenters uniformly supported the 
proposed change.
---------------------------------------------------------------------------

    \77\ Rule 17f-5(c)(2)(iii).
    \78\ See Proposing Release, supra note 5, at nn.155-156 and 
accompanying text.
---------------------------------------------------------------------------

    The amended rule requires a securities depository or clearing 
agency that acts as a system for the central

[[Page 26931]]

handling of securities or equivalent book-entries to be regulated by a 
foreign financial regulatory authority.79 The Commission 
believes that foreign regulation of a depository demonstrates a 
country's interest in the depository's safety, thus achieving the 
Commission's objective.
---------------------------------------------------------------------------

    \79\ Amended rule 17f-5(a)(1)(ii) (17 CFR 270.17f-5(a)(1)(ii)). 
Rule 17f-5 currently also includes among eligible foreign custodians 
a security depository or clearing agency, incorporated or organized 
under the laws of a country other than the United States, that 
``operates'' a transnational system for the central handling of 
securities or equivalent book-entries. The amended rule refers to 
securities depositories or clearing agencies that ``act as'' such 
transnational systems. Amended rule 17f-5(a)(1)(iii) (17 CFR 
270.17f-5(a)(1)(iii). This change is intended to recognize that in 
some instances the service provider that operates or administers the 
transnational system may be organized under the laws of the United 
States (e.g., as a foreign branch of a U.S. bank).
---------------------------------------------------------------------------

E. Assets Maintained in Foreign Custody

    Rule 17f-5 currently permits a fund to use foreign custody 
arrangements for its foreign securities, cash, and cash 
equivalents.80 Rule 17f-5 defines foreign securities to 
include those that are issued and sold primarily outside the United 
States by foreign and U.S. issuers.81 By restricting the 
types of securities that may be maintained outside the United States, 
the rule seeks to establish a nexus between its scope and its purpose 
(i.e., to give funds the flexibility to keep abroad assets that are 
purchased or intended to be sold abroad). In addition, rule 17f-5 
currently limits the cash and cash equivalents that a fund may maintain 
outside the United States to amounts that are reasonably necessary to 
effect the fund's foreign securities transactions.82
---------------------------------------------------------------------------

    \80\ Rule 17f-5(a).
    \81\ Rule 17f-5(c)(1).
    \82\ Rule 17f-5(a).
---------------------------------------------------------------------------

    The Proposing Release requested comment whether the rule should 
continue to restrict the types of securities and amounts of cash and 
cash equivalents that a fund may maintain outside the United States. 
One commenter suggested that this provision may not permit a fund to 
maintain investments in other assets, such as foreign currencies, for 
which the primary market is outside of the United States. To better 
reflect these types of investment practices, the amended rule permits a 
fund to maintain in foreign custody any investment (including foreign 
currencies) for which the primary market is outside the United 
States.83
---------------------------------------------------------------------------

    \83\ Amended rule 17f-5(c) (17 CFR 270.17f-5(c)). As a result of 
this change, the rule no longer refers to ``foreign securities'' 
(which had been defined as securities ``issued and sold primarily 
outside of the United States''). The ``primary market'' formulation 
is designed to encompass foreign securities as well as other types 
of investments.
---------------------------------------------------------------------------

F. Canadian Funds

    Rule 17f-5 currently contains special provisions governing the 
foreign custody arrangements of Canadian funds registered in the United 
States.84 To address jurisdictional concerns underlying 
section 7(d) of the Act, these provisions are more restrictive than 
those applied to U.S. funds and allow Canadian funds to maintain their 
assets only in overseas branches of U.S. banks.85 Because 
Canadian funds have not sought to register under the Act for some time, 
and very few Canadian funds currently offer their shares in the United 
States, the proposed amendments would have made limited conforming 
changes in the foreign custody requirements applicable to Canadian 
funds.
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    \84\ Rule 174f-5(b)
    \85\ Section 7(d) of the Investment Company Act (15 U.S.C. 80a-
7(d)) prohibits foreign investment companies from publicly offering 
their securities in the United States unless the Commission issues 
an order permitting registration under the Act. Rule 7d-1 under the 
Investment Company Act (17 CFR 270.7d-1) sets forth conditions 
governing applications by Canadian funds that seek Commission orders 
pursuant to section 7(d). Among other conditions, rule 7d-1 provides 
that the assets of Canadian funds are to be held in the United 
States by a U.S. bank, except as provided under rule 17f-5. Rule 7d-
1(b)(8)(v) (17 CFR 270.7d-1(b)(8)(v)).
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    The Commission received one comment letter addressing Canadian 
funds. The commenter suggested that Canadian funds be permitted to use 
foreign custody arrangements on the same basis as their U.S. 
counterparts. The amended rule generally reflects this approach. As 
under the current rule, however, a Canadian fund's assets must be kept 
in the custody of an overseas branch of a U.S. bank. In addition, if 
the Canadian fund's board delegates its responsibilities under the 
rule, the only permissible delegates are the fund's officers, 
investment adviser or a U.S. bank.86
---------------------------------------------------------------------------

    \86\ Amended rule 17f-5(d) (1), (2) (17 CFR 270.17f-5(d) (1), 
(2)).
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IV. Effective Date; Compliance Dates

    The amendments to rule 17f-5 become effective thirty days after 
publication in the Federal Register. Funds that wish to rely on the 
amended rule prior to the effective date of the amendments may do so. 
Funds that have established foreign custody arrangements in accordance 
with rule 17f-5 prior to the effective date of these amendments 
(``existing foreign custody arrangements'') must bring these 
arrangements into compliance with the amended rule (i.e., have the 
fund's board make the findings required by the amended rule or appoint 
a delegate to do so) within one year of the effective date of these 
amendments. The one year period is designed to give funds the 
flexibility to bring an existing foreign custody arrangement into 
compliance with the amended rule either when that arrangement would 
have been subject to the fund board's annual review, as was required by 
the rule before these amendments, or at any board meeting within the 
one year period.

V. Cost/Benefit Analysis and Effects on Competition, Efficiency and 
Capital Formation

    The amendments to rule 17f-5 seek to give funds greater flexibility 
in their foreign custody arrangements consistent with investor 
protection. The amended rule permits a fund's board to delegate its 
responsibilities to select and monitor a fund's foreign custody 
arrangements and no longer requires the board to approve these 
arrangements annually. The amended rule does require delegates to 
provide fund boards with written reports regarding certain aspects of 
the foreign custody arrangements. This requirement is designed to 
facilitate board oversight and protect fund shareholders. The potential 
costs associated with this requirement are not expected to be 
significant, and are likely to be much less than the costs associated 
with the current requirement of providing fund boards with information 
pertaining to their annual review of foreign custody arrangements.
    The amendments also expand the class of foreign banks and 
securities depositories that may serve as custodians of fund assets 
overseas. These amendments give funds greater flexibility in selecting 
foreign custodians and eliminate the need for funds to request 
administrative relief for certain foreign custody arrangements.
    Section 2(c) of the Investment Company Act provides that whenever 
the Commission is engaged in rulemaking and is required to consider or 
determine whether an action is necessary or appropriate in the public 
interest, the Commission must consider, in addition to the protection 
of investors, whether the action will promote efficiency, competition, 
and capital formation.87 The Commission has considered the 
amendments to rule 17f-5 in light of these standards. The Commission 
believes that the amendments are consistent with the public interest 
and will promote efficiency and competition because the amendments (i) 
permit fund directors to

[[Page 26932]]

play a more traditional oversight role with respect to the custody of 
fund assets overseas, (ii) better focus the scope of the rule on 
safekeeping considerations, and (iii) expand the class of eligible 
foreign banks and securities depositories that may serve as custodians 
of fund assets. The Commission also believes that the amendments will 
have no adverse effect on capital formation.
---------------------------------------------------------------------------

    \87\ 15 U.S.C. 80a--2(c).
---------------------------------------------------------------------------

VI. Summary of Final 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. 21259. No comments were received on that 
Analysis. The Commission has prepared a Final Regulatory Flexibility 
Analysis (``FRFA'') in accordance with 5 U.S.C. 604. The FRFA states 
that the objective of the amendments is to give funds greater 
flexibility in their foreign custody arrangements by permitting fund 
boards to delegate their responsibilities to select and monitor foreign 
custodians, and by expanding the class of eligible foreign custodians. 
The FRFA provides that approximately 194 funds and 242 investment 
advisers that are small entities may be effected by the amendments. The 
FRFA explains that the amendments seek to reduce burdens on all funds, 
including those that are small entities, and that the amended rule's 
compliance requirements are necessary for the safekeeping of fund 
assets and investor protection. Finally, the FRFA states that in 
adopting the amendments the Commission considered (a) the establishment 
of differing compliance requirements that take into account the 
resources available to small entities; (b) simplification of the rule's 
requirements for small entities; (c) the use of performance rather than 
design standards; and (d) an exemption from the rule for small 
entities. The FRFA states that the Commission concluded that different 
requirements for small entities are not necessary and would be 
inconsistent with investor protection, and that the amended rule 
incorporates performance standards to the extent practicable. Cost-
benefit information reflected in the ``Cost/Benefit Analysis'' section 
of this Release also is reflected in the FRFA. A copy of the FRFA may 
be obtained by contacting Robin S. Gross, Mail Stop 10-2, Securities 
and Exchange Commission, 450 Fifth Street, NW., Washington, DC. 20549.

VII. Paperwork Reduction Act

    The amendments to rule 17f-5, among other things (i) permit a 
fund's board of directors to delegate its responsibilities under the 
rule upon a finding that it is reasonable to rely on the delegate to 
perform the delegated responsibilities, and (ii) require the delegate 
to notify the board of the placement of the fund's assets with a 
particular foreign custodian and of any material change in the fund's 
foreign custody arrangements. These provisions constitute a 
``collection of information'' requirement within the meaning of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501), because making the 
finding and providing the notices are necessary to be able to rely on 
the amended rule for foreign custody arrangements. 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.
    Accordingly, the Commission submitted the proposed amendments to 
the Office of Management and Budget (``OMB'') pursuant to 44 U.S.C. 
3507 and received approval of the amendments'' ``collection of 
information'' requirements (OMB control number 3235-0269). As discussed 
in section III.A. of this Release, the Commission has determined not to 
adopt the proposed amendment requiring a fund's board to make a finding 
that placing fund assets in a particular country would provide 
reasonable protection for fund assets. The Commission believes that 
this is not a material change for purposes of collection of information 
requirements and will not have any impact on the Commission's estimate 
of total burden hours. The amended rule does not require that the 
collection of information be made public or kept confidential by the 
parties; to the extent that the Commission obtains access to the 
collection of information through its inspection program, the 
information generally would not be available to third parties.

VIII. Statutory Authority

    The Commission is amending rule 17f-5 pursuant to the authority set 
forth in sections 6(c) and 38(a) of the Investment Company Act of 1940 
(15 U.S.C. 80a-6(c), 80a-37(a)).

List of Subjects in 17 CFR Part 270

    Investment companies, Reporting and recordkeeping requirements, 
Securities.

Text of Rule

    For the reasons set out in the preamble, Title 17, Chapter II of 
the 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. Section 270.17f-5 is revised to read as follows:


Sec. 270.17f-5.  Custody of investment company assets outside the 
United States.

    (a) Definitions. For purposes of this section:
    (1) Eligible Foreign Custodian means an entity that is incorporated 
or organized under the laws of a country other than the United States 
and that is:
    (i) A Qualified Foreign Bank or a majority-owned direct or indirect 
subsidiary of a U.S. Bank or bank-holding company;
    (ii) A securities depository or clearing agency that acts as a 
system for the central handling of securities or equivalent book-
entries in the country that is regulated by a foreign financial 
regulatory authority as defined under section 2(a)(50) of the Act (15 
U.S.C. 80a-2(a)(50)); or
    (iii) A securities depository or clearing agency that acts as a 
transnational system for the central handling of securities or 
equivalent book-entries.
    (2) Foreign Custody Manager means a Fund's or a Registered Canadian 
Fund's board of directors or any person serving as the board's delegate 
under paragraphs (b) or (d) of this section.
    (3) Fund means a management investment company registered under the 
Act (15 U.S.C. 80a) and incorporated or organized under the laws of the 
United States or of a state.
    (4) Qualified Foreign Bank means a banking institution or trust 
company, incorporated or organized under the laws of a country other 
than the United States, that is regulated as such by the country's 
government or an agency of the country's government.
    (5) Registered Canadian Fund means a management investment company 
incorporated or organized under the laws of Canada and registered under 
the Act pursuant to the conditions of Sec. 270.7d-1.
    (6) Securities Depository means a system for the central handling 
of securities as defined in Sec. 270.17f-4(a).
    (7) U.S. Bank means an entity that is:
    (i) A banking institution organized under the laws of the United 
States;

[[Page 26933]]

    (ii) A member bank of the Federal Reserve System;
    (iii) Any other banking institution or trust company organized 
under the laws of any state or of the United States, whether 
incorporated or not, doing business under the laws of any state or of 
the United States, a substantial portion of the business of which 
consists of receiving deposits or exercising fiduciary powers similar 
to those permitted to national banks under the authority of the 
Comptroller of the Currency and which is supervised and examined by 
State or Federal authority having supervision over banks, and which is 
not operated for the purpose of evading the provisions of this section, 
or
    (iv) A receiver, conservator, or other liquidating agent of any 
institution or firm included in paragraphs (a)(7)(i), (ii), or (iii) of 
this section.
    (b) Delegation. A Fund's board of directors may delegate to the 
Fund's investment adviser or officers or to a U.S. Bank or to a 
Qualified Foreign Bank the responsibilities set forth in paragraphs 
(c)(1), (c)(2), or (c)(3) of this section, provided that:
    (1) The board determines that it is reasonable to rely on the 
delegate to perform the delegated responsibilities;
    (2) The board requires the delegate to provide written reports 
notifying the board of the placement of the Fund's assets with a 
particular custodian and of any material change in the Fund's 
arrangements, with the reports to be provided to the board at such 
times as the board deems reasonable and appropriate based on the 
circumstances of the Fund's foreign custody arrangements; and
    (3) The delegate agrees to exercise reasonable care, prudence and 
diligence such as a person having responsibility for the safekeeping of 
Fund assets would exercise, or to adhere to a higher standard of care, 
in performing the delegated responsibilities.
    (c) Selecting an Eligible Foreign Custodian. A Fund may place and 
maintain in the care of an Eligible Foreign Custodian any investments 
(including foreign currencies) for which the primary market is outside 
the United States, and such cash and cash equivalents as are reasonably 
necessary to effect the Fund's transactions in such investments, 
provided that:
    (1) The Foreign Custody Manager determines that the Fund's assets 
will be subject to reasonable care, based on the standards applicable 
to custodians in the relevant market, if maintained with the custodian, 
after considering all factors relevant to the safekeeping of such 
assets, including, without limitation:
    (i) The custodian's practices, procedures, and internal controls, 
including, but not limited to, the physical protections available for 
certificated securities (if applicable), the method of keeping 
custodial records, and the security and data protection practices;
    (ii) Whether the custodian has the requisite financial strength to 
provide reasonable care for Fund assets;
    (iii) The custodian's general reputation and standing and, in the 
case of a Securities Depository, the depository's operating history and 
number of participants; and
    (iv) Whether the Fund will have jurisdiction over and be able to 
enforce judgments against the custodian, such as by virtue of the 
existence of any offices of the custodian in the United States or the 
custodian's consent to service of process in the United States.
    (2) Contract. The Fund's foreign custody arrangements must be 
governed by a written contract (or, in the case of a Securities 
Depository, by such a contract, by the rules or established practices 
or procedures of the depository, or by any combination of the 
foregoing) that the Foreign Custody Manager has determined will provide 
reasonable care for Fund assets based on the standards specified in 
paragraph (c)(1) of this section.
    (i) Such contract shall include provisions that provide:
    (A) For indemnification or insurance arrangements (or any 
combination of the foregoing) such that the Fund will be adequately 
protected against the risk of loss of assets held in accordance with 
such contract;
    (B) That the Fund's assets will not be subject to any right, 
charge, security interest, lien or claim of any kind in favor of the 
custodian or its creditors except a claim of payment for their safe 
custody or administration or, in the case of cash deposits, liens or 
rights in favor of creditors of the custodian arising under bankruptcy, 
insolvency, or similar laws;
    (C) That beneficial ownership for the Fund's assets will be freely 
transferable without the payment of money or value other than for safe 
custody or administration;
    (D) That adequate records will be maintained identifying the assets 
as belonging to the Fund or as being held by a third party for the 
benefit of the Fund;
    (E) That the Fund's independent public accountants will be given 
access to those records or confirmation of the contents of those 
records; and
    (F) That the Fund will receive periodic reports with respect to the 
safekeeping of the Fund's assets, including, but not limited to, 
notification of any transfer to or from the Fund's account or a third 
party account containing assets held for the benefit of the Fund.
    (ii) Such contract may contain, in lieu of any or all of the 
provisions specified in paragraph (c)(2)(i) of this section, such other 
provisions that the Foreign Custody Manager determines will provide, in 
their entirety, the same or a greater level of care and protection for 
Fund assets as the specified provisions, in their entirety.
    (3)(i) Monitoring the Foreign Custody Arrangements. The Foreign 
Custody Manager must have established a system to monitor the 
appropriateness of maintaining the Fund's assets with a particular 
custodian under paragraph (c)(1) of this section, and the contract 
governing the Fund's arrangements under paragraph (c)(2) of this 
section.
    (ii) If an arrangement no longer meets the requirements of this 
section, the Fund must withdraw its assets from the custodian as soon 
as reasonably practicable.
    (d) Registered Canadian Funds. Any Registered Canadian Fund may 
place and maintain outside the United States any investments (including 
foreign currencies) for which the primary market is outside the United 
States, and such cash and cash equivalents as are reasonably necessary 
to effect the Fund's transactions in such investments, in accordance 
with the requirements of this section, provided that:
    (1) The assets are placed in the care of an overseas branch of a 
U.S. Bank that has aggregate capital, surplus, and undivided profits of 
a specified amount, which must not be less than $500,000; and
    (2) The Foreign Custody Manager is the Fund's board of directors, 
its investment adviser or officers, or a U.S. Bank.

    May 12, 1997.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-12881 Filed 5-15-97; 8:45 am]
BILLING CODE 8010-01-P