The Securities and Exchange Commission has voted to modernize the regulatory framework for derivatives use by registered investment companies, including mutual funds (other than money market funds), exchange-traded funds, closed-end funds, and business development companies.
“Derivatives have come to play an important role for many funds in portfolio strategy and risk management, but the regulatory approach for derivatives use has been inconsistent and outdated…,” said SEC chairman Jay Clayton. “Importantly, the new comprehensive limits on risk will prohibit derivatives use that is inconsistent with the leverage limits imposed by the Investment Company Act, but will allow virtually all funds to continue to serve their investors using the most efficient instruments.”
The Investment Company Act limits the ability of registered funds and business development companies to engage in transactions that involve potential future payment obligations, including obligations under derivatives such as forwards, futures, swaps and written options.
The new rule permits funds to enter into these transactions if they comply with certain conditions designed to protect investors. These conditions include adopting a derivatives risk management program and complying with a limit on the amount of leverage-related risk that the fund may obtain based on value-at-risk, or “VaR.”
A set of requirements will apply for funds that use derivatives in a limited way. The rule also permits a fund to enter into reverse repurchase agreements and similar financing transactions, as well as “unfunded commitments” to make certain loans or investments, subject to conditions tailored to these transactions.
Funds, including money market funds, will now be permitted under the rule to invest in securities on a forward-settling basis. Funds also will be subject to reporting and recordkeeping requirements regarding their derivatives use.
Finally, the new rule requirements also apply to leveraged or inverse ETFs. The SEC has directed the staff to review the effectiveness of existing regulatory requirements in protecting investors, particularly those with self-directed accounts, who invest in complex investment products (including leveraged or inverse products).
As part of this review, the SEC will consider whether the promulgation of any additional requirements for these products may be appropriate.
The rule and related amendments will become effective 60 days after publication in the Federal Register. The SEC has provided for an 18-month transition period for funds to comply with the rule and related reporting requirements.