On October 13, 2016, the Securities and Exchange Commission (the SEC) issued a release adopting final rules to modernize and enhance the reporting and disclosure of information by registered investment companies (the Final Rules).1 The Final Rules are part of the SEC’s initiative to enhance its monitoring and regulation of the asset management industry, particularly by allowing the SEC to more effectively collect and use data reported by registered investment companies.
This Legal Alert provides a summary of three particular changes to the current reporting regime implemented by the Final Rules:
Form N-PORT – The SEC adopted a new monthly portfolio reporting form, Form N-PORT. Form N-PORT will require certain registered investment companies to report information about their monthly portfolio holdings to the SEC in a structured data format no more than 30 days after the end of the month. Although Form N-PORT will be filed monthly with the SEC, only information reported for the third month of a fund’s fiscal quarter will be made publicly available, and then only 60 days after the end of the quarter. In connection with the adoption of Form N-PORT, the SEC will rescind Form N-Q, on which funds currently report portfolio holdings for their first and third fiscal quarters.
Form N-CEN – The SEC adopted Form N-CEN, which will require certain registered investment companies to annually report certain census-type information to the SEC in a structured data format within 75 days after the end of the fiscal year or, in the case of unit investment trusts (UITs), 75 days after the end of the calendar year. Form N-CEN will replace Form N-SAR, the current form on which the SEC collects census-type information on registered investment companies and UITs.
Regulation S-X – The SEC also adopted amendments to Regulation S-X to require standardized, enhanced disclosure about derivatives in investment company financial statements, among other amendments.
The SEC adopted tiered compliance dates for Form N-PORT, as follows:
June 1, 2018, for larger entities (i.e., funds that together with other investment companies in the same “group of related investment companies”2 have net assets of $1 billion or more as of the end of the most recent fiscal year).
Upshot – As a result, larger entities will be required to file their first reports on Form N-PORT (reflecting portfolio data as of June 30, 2018) no later than July 30, 2018.
June 1, 2019, for smaller entities (i.e., funds that together with other investment companies in the same “group of related investment companies” have net assets of less than $1 billion as of the end of the most recent fiscal year).
Upshot – As a result, smaller entities will be required to file their first reports on Form N-PORT (reflecting portfolio data as of June 30, 2019) no later than July 30, 2019.
The SEC adopted a compliance date of June 1, 2018, to comply with the new Form N-CEN reporting requirements.
Amendments to Regulation S-X
The SEC adopted a compliance date of August 1, 2017, for its various amendments to Regulation S-X.
Form N-PORT and Rescission of Form N-Q
Currently, management investment companies, other than small business investment companies (SBICs), are required to report on Forms N-Q and N-CSR their complete portfolio holdings on a quarterly basis.3 These funds file their portfolio schedules on Form N-Q after the close of their first and third fiscal quarters and file their shareholder reports, which include portfolio schedules and other information, on Form N-CSR after the close of their second and fourth fiscal quarters.
As set forth in the Final Rules, the SEC adopted the new Form N-PORT, which will require certain registered management investment companies to file with the SEC monthly portfolio holdings reports in a structured Extensible Markup Language (XML) format no later than 30 days after the close of each month. The Final Rules state that reporting information on Form N-PORT in a structured XML format will improve the ability of the SEC and the public to compile and analyze information across all funds and to link the reported information from other sources. In connection with the adoption of Form N-PORT, the SEC has rescinded Form N-Q because the information reported on Form N-PORT will include the portfolio holdings information contained in reports on Form N-Q and thus render reports on Form N-Q unnecessarily duplicative.
Who Must File Reports on Form N-PORT?
All registered management investment companies (except for SBICs and money market funds) and UITs that operate as exchange-traded funds (ETFs) will be required to file reports on Form N-PORT.
Information Required by Form N-PORT
Form N-PORT will require reporting of a fund’s complete portfolio holdings. In addition, Form N-PORT will require additional information concerning the fund’s portfolio holdings not currently required by Forms N-Q or N-CSR. Only information reported for the third month of each fund’s fiscal quarter on Form N-PORT will be made publicly available, 60 days after the end of the third month of the fund’s fiscal quarter.
Form N-CEN and Rescission of Form N-SAR
The Final Rules replace Form N-SAR, on which registered investment companies (except for face-amount certificate companies) report a variety of census-type information to the SEC, including information relating to a fund’s organization, service providers, fees and expenses, portfolio strategies and investments, portfolio transactions and share transactions, with new Form N-CEN.
Similar to Form N-SAR, Form N-CEN will require reporting of census information on the funds, but will replace Form N-SAR primarily to improve the SEC staff’s understanding of industry trends and to assist with the SEC’s examination programs by using a structured XML data format. While funds are required to file Form N-SAR semi-annually (except UITs, which file annually), Form N-CEN must be filed annually, no later than 75 days after the end of the fiscal year for funds other than UITs, and no later than 75 days after the end of the calendar year for UITs.
Like Form N-SAR, to better tailor the reporting requirements to specific types of funds, the sections of Form N-CEN that a fund must complete will depend on the type of registrant, as summarized in the below table.
Amendments to Regulation S-X
Regulation S-X establishes general requirements for the form and content of a fund’s financial statements; however, Regulation S-X currently does not require standardized information to be included for derivative instruments other than options. To address this, the Final Rules amend Regulation S-X to, among other things, standardize the reporting of certain derivative investments in a fund’s financial statements. In addition, the Final Rules update the disclosures for other investments and investments in and advances to affiliates and amend the rules regarding the general form and content of a fund’s financial statements.
The Final Rules will renumber the current schedules in Article 12 of Regulation S-X and break out into separate schedules the reporting of derivatives currently on Schedule 12-13, as summarized in the table below:
* Denotes new or renumbered schedules
Enhanced Derivatives Disclosures
To address the issues of inconsistent disclosure and lack of transparency in financial statements with regard to derivative instruments, the Final Rules amend Regulation S-X by adopting new schedules for open futures contracts (new rule 12-13A), open forward foreign currency contracts (new rule 12-13B), and open swap contracts (new rule 12-13C). The Final Rules also modify the current disclosure requirements for purchased and written option contracts (new rule 12-13 for open option contracts written and new rule 12-12 for options purchased).
Open Futures Contracts (New Rule 12-13A) – New rule 12-13A amends current rule 12-13 to require that funds report the notional amount and value of each open futures contract to provide investors with more insight into the economics of a fund’s investment in futures contracts.
Open Forward Currency Contracts (New Rule 12-13B) – New rule 12-13B amends current rule 12-13 to require that funds disclose the counterparty to each open forward currency contract to allow investors a better understanding of counterparty risk for such transactions.
Open Swap Contracts (New Rule 12-13C) – New rule 12-13C amends current rule 12-13 to require that funds report the counterparty to each open swap contract (except for exchange-traded and centrally cleared swaps), the value of the contract, and any upfront payments or receipts. The new requirements are intended to provide investors with a better picture of the economics of the relevant transaction and its associated risks.
In addition, with regard to swaps contracts with a referenced asset that is an index with components that are publicly available on a website as of the relevant fund’s balance sheet date, or if the notional amount of the portfolio holding constitutes 1% or less of the fund’s NAV as of the close of the period, new rule 12-13C requires that the fund provide information sufficient to identify the referenced asset, such as a description. Alternatively, if the referenced asset is an index or custom basket with components that are not publicly available on a website as of the date of the balance sheet, and the notional amount of the derivative exceeds 1% of the fund’s NAV as of the close of the period, the fund must describe the index or custom basket and list separately (i) the index’s or custom basket’s 50 largest components and (ii) any other components for which notional value exceeds 1% of the notional value of the index or custom basket. For each separately listed investment, the fund must, as part of the description, include the description of the underlying investment as would be required by Article 12 of Regulation S-X, the quantity held, the value at the close of the period, and the percentage value when compared to the net assets of the custom basket.
Amendments to Current Rules 12-12 through 12-12C and Instructions Common to Rules 12-12 through 12-12B and 12-13 through 12-13D
The Final Rules do not change the schedules for rules 12-12, 12-12A, and 12-12C, but rather provide additional rules for new schedules, as well as clarify existing rules, including by renumbering several schedules. With respect to the instructions to rule 12-12, the Final Rules adopted the following requirements:
With regard to variable rate debt securities, a fund must describe the referenced rate and spread, as well as provide each investment’s end-of-period interest rate, or disclose each referenced rate at the end of the period.
For securities with payments-in-kind (PIK), a fund must provide the PIK interest rate.
When identifying each issue of securities held in connection with open put or call option contracts and loans for short sales, a fund must disclose where any portion of the issue is on loan.
In addition, the Final Rules amended instructions common to rules 12-12 through 12-12B and 12-13 through 12-13D to be consistent with the disclosures required by current rules 12-12 and 12-13. For example, whereas current rule 12-13 instructs funds to identify “each investment not readily marketable,” the Final Rules will instead require funds to (1) indicate whether the fund valued an investment using significant unobservable inputs, and (2) identify any derivative that cannot be sold because of restrictions or conditions applicable to such derivative.
Investments in and Advances to Affiliates under Rule 12-14
The Final Rules also include amendments to rule 12-14, which currently requires a fund to make certain disclosures about its investments in and advances to any “affiliates” or companies in which the investment company owns 5% or more of the outstanding voting securities. The SEC’s amendments include changes to the instructions to rule 12-14 to conform the rule to the disclosure requirements in rules 12-12 and 12-13. Under the current rule, a fund must disclose the “amount of equity in net profit and loss for the period” for each affiliated company, but is not required to disclose realized or unrealized gains or losses. The Final Rules, however, modify rule 12-14 to require for each affiliated investment disclosure of “net realized gain or loss for the period” and “net increase or decrease in unrealized appreciation or depreciation for the period” instead of disclosure of the “amount of equity in net profit and loss for the period.”
In addition, to better correlate with the statement of operations the totals required to be disclosed by rule 12-14, the Final Rules amend the instructions to rule 12-14 to require funds to disclose total realized gain or loss and total net increase or decrease in unrealized appreciation or depreciation for affiliated investments. The Final Rules also add a new instruction to make the categorization of investment in and advances to affiliates consistent with the categorization method used in rules 12-12, 12-12A, and 12-12B. Other than the above, the amendments to rule 12-14 set forth in the Final Rules are consistent with the amendments described in the Proposing Release.7
The SEC’s new Forms N-PORT and N-CEN and amendments to Regulation S-X significantly change the current reporting regime for most funds by requiring more comprehensive disclosure and more frequent reporting of portfolio holdings. These reporting requirements will also serve to improve the SEC’s ability to review a fund’s financial information, and could potentially result in increased scrutiny and enforcement actions by the SEC.
Preparing to comply with the Final Rules will be a lengthy and involved process that funds should begin by taking the following steps:
Gain a better understanding of the Final Rules to assess the scope of the additional information required to be disclosed, which will vary depending on the fund’s investments. For instance, if a fund has significant debt exposure or engages in securities lending transactions or derivatives, it will likely have greater reporting obligations than funds that do not.
Create working groups to assign and coordinate responsibilities among operational, compliance, management and other functions within the fund, as well as among any service providers that support fund reporting, and develop a checklist outlining key events that must be completed prior to the compliance dates set forth under the Final Rules.
Determine to what extent current systems, whether at the fund or at service providers, will be able to meet the new data requirements and whether such systems will need to be modified or developed to collect, process and report the new information. To the extent that service providers need to modify existing systems or develop new systems to report the information required under the Final Rules, funds should consider the related cost implications with service providers, which may seek to pass on some or all of these costs to the fund in the form of higher fees.
Assess whether the fund’s existing resources will adequately establish and maintain the reporting systems necessary to meet the new functions, or whether the fund will need additional resources to meet such needs.
Review service provider agreements to determine whether the required new services, if any, are covered by the existing agreements and whether other contract provisions should be amended in light of the expanded responsibilities of the relevant service providers.
Develop a process to report to the fund’s board of directors or board of trustees the fund’s progress in preparing for compliance with the Final Rules.
1 The full text of the Final Rules can be found at https://www.sec.gov/rules/final/2016/33-10231.pdf.
2 The term “group of related investment companies” means two or more management companies (including series thereof) that:
(i) hold themselves out to investors as related companies for purposes of investment and investor services; and
(A) have a common investment adviser or have investment advisers that are affiliated persons of each other; or
(B) have a common administrator; and
In the case of a UIT, the term “group of related investment companies” shall mean two or more unit investment trusts (including series thereof) that have a common sponsor.
3 Though SBICs file reports on Form N-CSR, they are not currently required to file reports on Form N-Q.
4 Because only the report on Form N-PORT for the last month of each fiscal quarter will be made public, the Final Rules require that funds provide return information for each month in the quarter.
5 A provision of financial support relates to whether an affiliated person, promoter or principal underwriter of the registrant provided any form of financial support to the registrant during the reporting period, but does not include, among other things, routine waiver of fees or reimbursement of a fund’s expenses.
6 Current rule 12-12C has been renumbered as rule 12-12B.
7 The full text of the Proposing Release can be found at https://www.sec.gov/rules/proposed/2015/33-9776.pdf.