The staff of the U.S. Securities and Exchange Commission’s (SEC) Division of Investment Management (Staff) on July 18, 2017, released answers to frequently asked questions (FAQs) about the rules and forms relating to Investment Company Reporting Modernization.1 The Staff’s answers are intended to help resolve certain questions that have been raised since the SEC adopted the new reporting regime, parts of which went into effect on August 1, 2017. This Dechert OnPoint provides a short background on Investment Company Reporting Modernization and discusses the most notable questions and answers provided by the Staff in the FAQs.
In October 2016, the SEC adopted new rules and forms, as well as amendments to certain rules and forms (Final Rule), to modernize the reporting of information by registered investment companies (funds).2 The Final Rule has four key components:
- Adoption of Form N-PORT, for reporting portfolio-wide and position-level information, and the rescission of Form N-Q;
- Adoption of Form N-CEN, for reporting census-type information, and the rescission of Form N-SAR;
- Amendments to Regulation S-X to require (among other changes) standardized reporting of derivatives holdings in a fund’s financial statements; and
- Amendments to Forms N-1A, N-3 and N-CSR to require certain disclosures regarding a fund’s securities lending activities.
As a result of certain ambiguities in the Adopting Release and in response to technical questions relating to the Final Rule, the Staff sought to clarify certain issues in the FAQs, which include the Staff’s responses to questions regarding: (1) compliance dates and general filing obligations; (2) Form N-PORT; (3) Regulation S-X; and (4) Form N-CEN. The Staff noted that the responses to the FAQs represent the views of the Staff and they are not rules, regulations or statements of the SEC.3
Compliance Dates and General Filing Obligations
Compliance Dates (Compliance Dates and General Filing Obligations FAQ No. 2)
In response to questions regarding the compliance dates for the new forms and disclosure requirements, the Staff provided a series of responses as set forth below.
Form N-PORT. In the Adopting Release, the SEC stated that the compliance date for Form N-PORT depends on the size of the fund family. The Adopting Release noted that the compliance date is June 1, 2018, for fund families with assets of $1 billion dollars or more and June 1, 2019, for fund families with less than $1 billion. Under the Final Rule, a fund must file information on Form N-PORT no later than 30 days after the end of each month. The Staff clarified in the FAQs that the compliance date should apply to the reporting period-end date and that, for example, a fund that is part of a fund family with assets of $1 billion or more would file its first report on Form N-PORT for the month-end June 30, 2018, no later than July 30, 2018.
Form N-CEN. The Adopting Release stated that the compliance date for Form N-CEN is June 1, 2018. Under the Final Rule, a fund (other than a unit investment trust) will be required to file a report on Form N-CEN no more than 75 days after the fund’s fiscal year-end.4 The Staff explained that the June 1, 2018, compliance date should be based on a fund’s reporting period-end date and that, for example, a fund with a fiscal year-end of May 31 would be required to file its first report on Form N-CEN no more than 75 days after May 31, 2019 (as opposed to July 2018). The Staff noted in FAQ No. 6, however, that a fund with fiscal year-end of April 30 or May 31 may choose to file its fiscal year 2018 report on Form N-SAR or Form N-CEN.
Amendments to Regulation S-X. The Adopting Release provided that the compliance date for the amendments to Regulation S-X is August 1, 2017. The Staff clarified that compliance with the new amendments should be based on a fund’s reporting period-end date. The Staff explained that, for example, a fund with a reporting period-end date of June 30, 2017 (or July 31, 2017) need not file its report on Form N-CSR, even though the fund’s filing deadline is after the compliance date. The Staff specified that financial statements relating to the reporting period ended August 31, 2017, would be the first sets of financial reports that would need to comply with the amendments to Regulation S-X.
Securities Lending Disclosures. The SEC stated in the Adopting Release that the compliance date for the amendments relating to the new securities lending disclosure requirements in Forms N-1A, N-3 and N‑CSR is August 1, 2017. The Staff noted in the FAQs that compliance with the new securities lending disclosure requirements is based on the fund’s reporting period-end date. The Staff explained that, for an open-end fund with a July 31 fiscal year-end, the fund should first reflect the amendments in its Statement of Additional Information filed on Form N-1A following the fund’s July 31, 2018, fiscal year-end. With respect to a closed-end fund, the Staff explained that the fund should include the amendments to Form N-CSR in the first Form N-CSR relating to an annual reporting period ended after the compliance date, which, for example, means that a closed-end fund with a February 28 fiscal year-end should first incorporate the amendments in its report on Form N-CSR for the annual reporting period ending February 28, 2018.
Continuing Obligations under Forms N-Q and N-CSR (Compliance Dates and General Filing Obligations FAQ No. 4)
In response to a question relating to a fund’s filing obligations with respect to Form N-Q and Form N-CSR once the fund is required to comply with Form N-PORT, the Staff explained that the fund’s obligation to file reports on Form N-Q will end once it begins filing reports on Form N-PORT. The Staff noted that, once a fund begins filing on Form N-PORT, the fund also will need to update the certification in its report on Form N-CSR to cover any changes to the fund’s internal controls over financial reporting in the last fiscal half-year (rather than the last fiscal quarter).
Money Market Funds (Compliance Dates and General Filing Obligations FAQ No. 5)
In response to a question regarding whether a money market fund must continue to file reports on Form N‑Q after the form is rescinded on August 1, 2019, the Staff noted that money market funds must continue to file reports on Form N-Q until the form is rescinded. The Staff explained that a money market fund’s final report on Form N-Q will be for the month-end of May 31, 2019. The Staff confirmed that, as with other funds that cease reporting on Form N-Q, money market funds will also need to update the certification in their report on Form N-CSR to cover any changes to the fund’s internal controls over financial reporting in the last fiscal half-year.
Filing Reports on Form N-PORT (Form N-PORT FAQ No. 1)
In response to a question about whether funds may use a T+1 basis for calculating their portfolio holdings and a T+0 basis for calculating their risk metrics, the Staff stated that it would not object if funds use different bases for calculating their portfolio holdings and risk metrics, provided that the information reported complies with General Instruction G. That instruction, among other things, authorizes a fund to use its own internal methodologies and conventions when responding to Form N-PORT, provided the information reported is consistent with the information that the fund reports internally and to investors.
Part F Attachments (Form N-PORT FAQ No. 2)
To address how a fund will file a Part F attachment to Form N-PORT, the Staff noted that, although the fund must file its Form N-PORT up to 30 days after the end of the reporting period, it may file Part F attachments up to 60 days after the end of the reporting period. The Staff explained that a fund may file a Part F attachment by separately submitting on EDGAR the exhibit that relates back to the Form N-PORT filed earlier and which corresponds to the same reporting period, without causing such Form N-PORT to be marked as amended in EDGAR.
Public Disclosure During the Initial Six Months (Form N-PORT FAQ No. 4)
The SEC stated in the Adopting Release that it would not make public the information filed on Form N‑PORT for the first six months following the compliance date. In the FAQs, the Staff explained that this means that reports filed on Form N-PORT for the period ended June 30, 2018, through November 30, 2018, will be non-public. However, the Staff clarified that, although the reports on Form N-PORT filed during the initial six months will not be made public, any exhibits under Part F (which includes the fund’s complete portfolio holdings) filed during that period will be made public.
Identifying Investments in Other Funds (Form N-PORT FAQ No. 9)
In connection with Item C.4 of Form N-PORT and the requirement for funds to identify in their schedule of portfolio investments the type of asset of each investment, the Staff indicated that investments in other funds for cash management purposes should be reported as “short-term investment vehicles” and investments in other funds for any other purpose should be reported as “equity-common.” With respect to the requirement under Item C.4 to identify the issuer type for investments in other funds, the Staff stated that a fund should report the issuer of a registered fund as a “registered fund” and a non-registered fund as a “private fund.”
Identifying Debt Securities (Form N-PORT FAQ No. 11)
To respond to questions relating to Item C.9.b.i of Form N-PORT and identifying the category that most closely reflects the coupon type of debt securities, the Staff stated its belief that funds may rely on the definitions in Rule 2a-7 to help distinguish between types of debt securities.
Aggregating Principal Amounts and Collateral Values (Form N-PORT FAQ No. 12)
The Staff stated that, for responses to Item C.10.f of Form N-PORT (which requires funds to disclose certain information about securities serving as collateral for repurchase agreements, including the principal amount and the value of the collateral), it would not object if funds aggregate the principal amount and collateral values of securities that fall into the same category of instruments, even if the securities are from different issuers.
Calculating Notional Amounts of Derivatives (Form N-PORT FAQ No. 14)
Form N-PORT and the amendments to Regulation S-X require funds to disclose the notional amounts of derivative instruments. The Staff acknowledged that funds may use different methods for calculating notional amounts depending on the type of derivative instrument, but noted that funds “would not delta-adjust the notional amount for options.”
Components of Underlying Indexes and Custom Baskets (Regulation S-X FAQ Nos. 2 and 3)
Several of the new rules under Article 12 of Regulation S-X require funds to disclose, in certain circumstances, information about the components of indexes or custom baskets underlying a derivative investment, including the top 50 largest components of the index or basket. In response to how a fund should determine the “magnitude” of a sub-component that is a short position, the Staff indicated that “short positions should be treated in terms of their absolute values.” With respect to other types of components, the Staff acknowledged that the metric used to determine a component’s magnitude may differ depending on the type of instrument. The Staff explained that, for example, notional value should be used for swaps, but that par value could be used for bonds and value could be used for equities.
The Staff further stated it would not object if a fund, when describing a component of an index or basket pursuant to Article 12, provided the same information that would be required to be disclosed in a schedule of investments for that type of instrument in Column A of the applicable rule under Article 12.
Identifying Restricted Derivatives Positions (Regulation S-X FAQ No. 4)
The new Rules 12-13, 12-13A, 12-13B and 12-13C of Regulation S-X require funds to indicate in their schedule of investments whether certain derivative positions cannot be sold due to “restrictions or conditions applicable to the investment.” In the FAQs, the Staff acknowledged that funds have various means at their disposal to exit a derivative position in addition to simply selling the position. With this in mind, the Staff stated its belief that a fund should indicate in its schedule of investments that a particular derivative position is restricted if the fund “would not have been able to exit the transaction” as of the date of the balance sheet.
Disclosing Net Margin or Collateral (Regulation S-X FAQ No. 6)
Under Rule 6-04.6 of Regulation S-X, a fund is required to separately state on its balance sheet any deposits held by others in connection with the fund’s short sales, open option contracts, futures contracts, forward foreign currency contracts, swap contracts and certain other investments. In situations where a counterparty posts a single net amount of margin or collateral for all open derivative transactions, the Staff stated in the FAQs that it would not object if the fund disclosed in the notes to the financial statements the net amount held by others, as long as the fund also disclosed the “rights of setoff associated with the investments and the effect of the arrangements with counterparties on the fund’s balance sheet.”
Disclosure of Sub-Transfer Agents (Form N-CEN FAQ No. 2)
In connection with the requirement set forth in Item C.10.vii of Form N-CEN for a fund to disclose information about its transfer agent and whether the transfer agent is a sub-transfer agent, the Staff stated its view that Item C.10 would not require funds to identify intermediary arrangements that are “administrative service type arrangements,” such as broker-dealer firms that provide sub-transfer agent services.
Variable Insurance Products (Form N-CEN FAQ No. 3)
In response to a question regarding whether variable insurance products that no longer file post-effective prospectus amendments must file a report on Form N-CEN, the Staff stated that the variable insurance products must continue to file reports on Form N-CEN even if the products stop filing post-effective amendments.
The Final Rule imposes substantially increased reporting burdens on funds, both with respect to the frequency of reporting and the granularity of information required. The Staff’s responses to the FAQs are designed to help clarify certain requirements of, and assist funds in preparing to comply with, the Final Rule. As the various compliance dates for the Final Rule quickly approach, funds should become familiar with the Staff’s positions as indicated in its answers to the FAQs when developing the processes that will need to be implemented to comply with the Final Rule.