Comprehensive Regulatory Regime for U.S.

Mutual Funds

Regulated U.S. funds are subject to comprehensive requirements under the Investment
Company Act of 1940, other federal securities laws, and related Securities and Exchange Commission
(SEC) regulations. These protections, both individually and collectively, serve to protect the interests of
fund investors and to mitigate risk to the broader financial system.

This discussion focuses on the regulation of mutual funds, which are the predominant form of
regulated fund in the United States. Daily redeemability of fund shares at net asset value is a defining
feature of mutual funds and one around which many of the requirements applicable to them are built.
The regulatory framework is slightly different—but no less stringent—for closed-end funds, which do
not promise daily redeemability but rather list their shares for trading on a national securities exchange;
for UITs, which are redeemable but are required by law to have a largely fixed portfolio that is not
actively managed or traded; and for exchange-traded funds (ETFs), which are organized as mutual
funds or UITs, but with shares that trade intraday on stock exchanges like closed-end funds.

For a more thorough discussion of the comprehensive regulatory framework applicable to

Daily Valuation of Fund Assets

U.S. mutual funds must value all their portfolio holdings on a daily basis, based on market
values if readily available. If there is no current market quotation for a security or the market quotation
is unreliable, the fund’s board of directors or trustees (a substantial majority of whom typically are
independent of the fund’s manager)1 has a statutory duty to “fair value” the security in good faith.2 The
mutual fund uses the values for each portfolio holding to calculate the net asset value (NAV) of its
shares each business day, using pricing methodologies established by the fund board. The daily NAV is
the price used for all transactions in fund shares. As the SEC has observed, these pricing requirements
are critical to ensuring that mutual fund shares are purchased and redeemed at fair prices and that
shareholder interests are not diluted.3 They also promote market confidence, because they allow
investors, counterparties, and others to understand easily the actual valuations of fund portfolios.

Given the importance of the pricing process, mutual funds have extensive policies and
procedures designed to ensure that fund portfolio securities are properly valued and that the fund’s
NAV accurately reflects the fund’s net asset value per share. Valuation policies generally serve to: define
the roles of various parties involved in the valuation process; describe how the fund will monitor for
situations that may necessitate fair valuation of one or more securities; describe board-approved

1
For further discussion of the fund board’s role and responsibilities, see Independent Board Oversight below.
2
Fair value refers to the amount the fund might reasonably expect to receive for the security upon its current sale. See
Accounting Series Release No. 118, SEC Release No. IC-6295, 35 Fed. Reg. 19986 (Dec. 23, 1970).
3
See, e.g., Compliance Programs of Investment Companies and Investment Advisers, SEC Release No. IC-26299, 68 Fed.
Reg. 74714, 74718 (Dec. 24, 2003) (adopting Rule 38a-1 under the Investment Company Act).

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valuation methodologies for particular types of securities; and describe how the fund will review and
test fair valuations to evaluate whether the valuation procedures are working as intended. These policies
are a critical component of a mutual fund’s governance process and compliance program, and
accordingly are a significant area of focus for the SEC during inspections and examinations.4 Valuation
is also a critical component of the audit process.5

Liquidity to Support Redemptions

At least 85 percent of a mutual fund’s portfolio must be invested in “liquid securities,” which
are defined as any assets that can be disposed of within seven days at a price approximating market
value.6 On an ongoing basis, mutual funds monitor the overall level of liquidity in their portfolios as
well as the liquidity of particular securities, as circumstances warrant. Many mutual funds adopt a
specific policy with respect to investments in illiquid securities; these policies are sometimes more
restrictive than the SEC guidelines. Although an unexpected market event potentially could cause
certain previously liquid securities to become illiquid, the SEC has determined that the 85 percent
standard should ensure a mutual fund’s ability to meet redemptions.7

Leverage

The Investment Company Act and related guidance from the SEC and its staff strictly limit
mutual funds’ ability to take on leverage. These limitations stem from Section 18(f) of the Investment
Company Act, which prohibits a mutual fund from issuing a class of senior security or selling any senior
security of which it is the issuer, but permits borrowing from a bank, provided that there is asset
coverage of at least 300 percent for all such borrowings. As a result, the maximum ratio of debt-to-assets
allowed by law is 1-to-3, which translates into a maximum allowable leverage ratio of 1.5-to-1.

Transactions with Affiliates

The Investment Company Act contains a number of strong and detailed prohibitions on
transactions between a mutual fund and affiliated organizations such as the fund’s manager, a corporate

4
For more detail, see generally ICI, Independent Directors Council, and ICI Mutual Insurance Company, An Introduction
to Fair Valuation, (Spring 2005), available at http://www.ici.org/pdf/05_fair_valuation_intro.pdf.
5
A mutual fund’s financial statements must be audited annually by an independent public accountant registered with the
U.S. Public Company Accounting Oversight Board (PCAOB). Among other things, the independent accountant examines
the fund’s valuation policies and procedures to confirm that the prices used to value the fund’s security holdings are
consistent with generally accepted accounting principles. As required by SEC rules, the independent accountant must verify
100 percent of the security valuations applied to the fund’s portfolio at the balance sheet date; the accountant also would
typically review valuations for selected dates throughout the year. We note that the auditing of security values and fair value
measurements is a significant area of focus in PCAOB inspections of public accounting firms.
6
See Revisions of Guidelines to Form N-1A, SEC Release No. IC-18612 (Mar. 12, 1992); SEC Division of Investment
Management, IM Guidance Update No. 2014-1 at 6 (Jan. 2014), available at
http://www.sec.gov/divisions/investment/guidance/im-guidance-2014-1.pdf (explaining that the 1992 Guidelines are
Commission guidance and remain in effect).
7
SEC Release No. IC-18612, supra note 6 (stating that the 85 percent standard was “designed to ensure that mutual funds
will be ready at all times to meet even remote contingencies”).

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parent of the fund’s manager, or an entity under common control with the fund’s manager. Among
other things, Section 17 of the Investment Company Act prohibits transactions between a fund and an
affiliate acting for its own account, such as the buying or selling of securities (other than those issued by
the fund) or other property, or the lending of money or property. It also prohibits joint transactions
involving a mutual fund and an affiliate. In some cases, transactions involving an affiliate are permitted
in accordance with SEC rules and exemptive orders, which impose conditions designed to protect
investors and require the fund’s board of directors, including the independent directors, to adopt and
review procedures designed to ensure compliance with those conditions. The detailed and restrictive
provisions of the Investment Company Act governing dealings with affiliates are no less stringent than
those contained in Sections 23A and B of the U.S. Federal Reserve Act. These Investment Company
Act provisions also prevent most types of sponsor support, absent prior approval by the SEC on a case-
by-case basis.

Custody of Assets

The Investment Company Act requires mutual funds to maintain strict custody of fund assets,
separate from the assets of the fund manager. This requirement is intended to safeguard fund assets
from theft or misappropriation. Nearly all mutual funds use a bank custodian for domestic securities,
and the custody agreement is typically far more elaborate than the arrangements used for other bank
clients.8 Notably, under the Investment Company Act regulatory structure, collateral posted by a
mutual fund must be placed with an eligible custodian and maintained as required under the
Investment Company Act. The benefits of this approach were highlighted following the collapse of
Lehman Brothers, as mutual funds with such custody arrangements were able to take control of both
their own collateral and the collateral posted by Lehman with far less difficulty than market
participants with different custody arrangements.

Diversification Requirements

All U.S. mutual funds are required by federal tax laws to be, among other things, diversified.9
Generally speaking, with respect to half of the fund’s assets, no more than 5 percent may be invested in
the securities of any one issuer; with respect to the other half, the limit is 25 percent. In other words, the
minimum diversification a fund could have is 25 percent of its assets in each of two issuers, and 5
percent of its assets in each of 10 additional issuers. If a fund elects to be diversified for purposes of the
Investment Company Act (and most do), the requirements are more stringent—with respect to 75
percent of its portfolio, no more than 5 percent may be invested in any one issuer.

Transparency

Under the federal securities laws and applicable SEC regulations, mutual funds are subject to
the most extensive disclosure requirements of any financial product. Funds provide a vast array of

8
The Investment Company Act and rules thereunder permit other limited custodial arrangements: Rule 17f-1 (broker-
dealer custody); Rule 17f-2 (self custody); Rule 17f-4 (securities depositories); Rule 17f-5 (foreign banks); Rule 17f-6
(futures commission merchants); and Rule 17f-7 (foreign securities depositories). Foreign securities are required to be held
in the custody of a foreign bank or securities depository.
9
See Subchapter M of the Internal Revenue Code.

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information about their operations, financial conditions, contractual relationships with their managers,
and other matters to regulators, the investing public, media, and vendors such as Morningstar. The
marketplace simply does not have access to anything even approaching this degree of transparency
about banks and their holdings. In fact, some believe that the opacity of banks’ balance sheets
contributed to the spread and severity of the 2008 financial crisis.10

More specifically, mutual funds are required to maintain a current prospectus, updated at least
annually, which provides investors with information about the fund and its operations, investment
objectives, investment strategies, risks, fees and expenses, and performance, among other things. The
prospectus also must describe all principal investment strategies and risks of a fund. The prospectus
must be provided to investors in connection with a purchase of fund shares.11

Mutual fund investors receive annual reports containing audited financial statements within 60
days after the end of the fund’s fiscal year, and semiannual reports containing unaudited financials
within 60 days after the fiscal year midpoint. These reports must contain updated financial statements,
a comprehensive list of the fund’s portfolio securities including derivatives contracts, management’s
discussion of financial performance, and other specified information. Following their first and third
quarters, funds file an additional form with the SEC, Form N-Q, disclosing their complete portfolio
holdings. The SEC makes Form N-Q publicly available upon receiving it. These quarterly portfolio
holdings disclosures include any assets earmarked against derivatives transactions, as well as any assets
posted as collateral.12 They also list open derivatives positions, including terms of the contracts, their
notional value, and fair value. The SEC staff takes the view that for over-the-counter derivatives such as
swaps, “terms” of the contracts include the identity of the counterparty.13 This high degree of
transparency allows investors and other market participants a clear understanding of a fund’s
investment strategy, holdings, and financial condition.

10
The Financial Crisis of 2008 in Fixed Income Markets, Gerald P. Dwyer and Paula Tkac, Working Paper 2009-20, Federal
Reserve Bank of Atlanta (Aug. 2009).
11
Additional information must be made available to investors upon request in a statement of additional information,
commonly referred to as the SAI.
12
Funds typically do not post substantial portions of their portfolios as collateral.
13
See Letter from Barry Miller, Associate Director, Office of Legal and Disclosure, Division of Investment Management,
SEC to Karrie McMillan, General Counsel, ICI (July 30, 2010).

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 Independent Board Oversight

Mutual funds are required by statute to have a board of directors (or trustees), which generally
must have at least a majority of members who are independent of the fund’s investment manager.14
Fund directors are subject to duties of care and loyalty under state law, and the U.S. Supreme Court has
said that the independent directors serve as “watchdogs” for the interests of fund investors.15 In broad
terms, the fund board oversees the management, operations, and investment performance of the fund.
Directors also have significant and specific responsibilities under the federal securities laws, including
signing the fund’s registration statement (and assuming strict liability for any material misstatements or
omissions therein), approving the contract with the fund’s investment manager and overseeing the
manager’s provision of services under that contract, and overseeing potential conflicts of interest as well
as the fund’s compliance program.16

Mandatory Compliance Programs

While compliance has always been a cornerstone for mutual funds, the adoption of the fund
compliance program rule (Rule 38a-1 under the Investment Company Act) in late 2003 introduced
formalized practices and new requirements for funds and their boards, and presented fund boards with
new tools for overseeing compliance. Under the rule, mutual funds must adopt and implement written
policies and procedures reasonably designed to prevent violations of the federal securities laws. These
policies and procedures must provide for the oversight of compliance by the fund’s key service
providers—its investment manager(s), principal underwriter(s), administrator(s), and transfer agent(s).
At least annually, funds must review the adequacy, and the effectiveness of the implementation, of their
own policies and procedures and of the policies and procedures of fund service providers.

Rule 38a-1 also requires mutual funds to designate a chief compliance officer (fund CCO) who
is responsible for administering the fund’s compliance policies and procedures.17 The rule contains
provisions designed to promote the independence of the fund CCO from the fund’s investment
manager. Specifically, the fund board, including a majority of the independent directors, must approve
the appointment and compensation (and, if necessary, the removal) of the fund CCO. At least
annually, the fund CCO must provide a written report to the fund board that addresses, among other
things, the operation of the fund’s (and its service providers’) policies and procedures and each material
compliance matter that occurred since the date of the last report. Although the rule requires

14
In fact, the number of independent directors on a fund board is typically far higher than required by law. As of year-end
2012, independent directors made up three-quarters of boards in 85 percent of fund complexes. See Independent Directors
Council and Investment Company Institute, Overview of Fund Governance Practices, 1994–2012, available at
http://www.idc.org/pdf/pub_13_fund_governance.pdf.
15
Burks v. Lasker, 441 U.S. 471 (1979).
16
For a more complete discussion of the oversight role of fund boards, see Frequently Asked Questions About Mutual Fund
Directors, available at http://www.idc.org/pubs/faqs/faq_fund_gov_idc; Fundamentals for Newer Directors, available at
http://fundamentals.idc.org/; and American Bar Association Section of Business Law, Fund Director’s Guidebook
(3rd ed. 2006), available at
http://apps.americanbar.org/abastore/index.cfm?pid=5070526&section=main&fm=Product.AddToCart.
17
Rule 206(4)-7 under the Investment Advisers Act of 1940 imposes similar requirements on all federally registered
investment managers (including managers of mutual funds).

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compliance reviews and reports to be undertaken at least annually, such reviews and reports may occur
on a more frequent basis, or on an ongoing basis throughout the year.

SEC Oversight

The SEC is tasked with monitoring and enforcing mutual funds’ compliance with the
Investment Company Act as well as all other applicable federal securities laws and regulations. The SEC
staff promotes compliance with the federal securities laws through outreach, publications, and
inspections of mutual funds and their managers conducted by SEC examiners, accountants, and
lawyers. These inspections include a detailed review of the funds’ advertisements, books and records,
capital structure, fee structure, investment management contracts, corporate governance, best
execution, and sales practices. In addition, as part of its robust disclosure review, the SEC reviews all
mutual fund registration statements. This disclosure document includes, among other things, the funds’
investment objectives and goals, capital structure, risk disclosures, fee table, financial highlights
information, and financial intermediary compensation.