Chicago Mercantile Exchange
December 19, 2014
RESPONSE OF THE OFFICE OF CHIEF COUNSEL
Our Ref. No. 201412181148
In letters to you dated December 26, 2013 and July 10, 2013, the staff of the Division of Investment Management indicated that we would not recommend enforcement action to the Commission under Section 17(f) of the Investment Company Act of 1940 (“1940 Act”) against any registered investment company (a “Fund”) if the Fund or its custodian places and maintains cash and/or certain securities (“assets”) in the custody of the Chicago Mercantile Exchange (“CME”), a derivatives clearing organization registered with the Commodity Futures Trading Commission (“CFTC”) or a CME or Board of Trade of the City of Chicago (“CBOT”) clearing member (a “CME Clearing Member”) that is a futures commission merchant registered with the CFTC (“FCM”), for purposes of meeting CME’s or a CME Clearing Member’s margin requirements for certain interest rate swaps (“IRS”), credit default swaps (“CDS”), cash-settled commodity index swap contracts (“CIS”) and foreign currency swap contracts (“FXS”) that are cleared by CME (“Letters”). We extended these temporary no-action assurances and now extend them until December 31, 2015.
In particular, we rely on your representations in the Letters, as updated to reflect rules adopted by the CFTC, that each CME Clearing Member that holds assets for an unaffiliated Fund customer wishing to clear IRS, CDS, CIS and FXS transactions on the CME will address each of the requirements of Rule 17f-6 under the 1940 Act, as follows:
As the Commission stated in adopting Rule 17f-6 under the 1940 Act, maintaining assets in an FCM’s custody is not without risk. As a result, we encourage Funds to weigh carefully the risks and benefits of maintaining assets to effect transactions in IRS, CDS, CIS and FXS with CME or a CME Clearing Member.
Based on your facts and representations, we would not recommend enforcement action to the Commission under Section 17(f) of the 1940 Act against a Fund if the Fund or its custodian places and maintains assets in the custody of CME or a CME Clearing Member for purposes of meeting CME’s or a CME Clearing Member’s margin requirements for IRS, CDS, CIS and FXS that are cleared by CME.
Our position herein is temporary, and will expire December 31, 2015. Because our position is based on your facts and representations, you should note that any different facts or circumstances might require a different conclusion. This letter represents only the Division’s position on enforcement action and does not purport to express any legal conclusion on the questions presented.
 See, e.g., Chicago Mercantile Exchange, SEC Staff No-Action Letters (Dec. 26, 2013) (relating to CDS and IRS), (July 10, 2013) (relating to CIS and FXS), (Sept. 27, 2012) (relating to IRS), (Sept. 27, 2012) (relating to CDS), (July 29, 2011) (relating to IRS), (July 29, 2011) (relating to CDS) and (Mar. 24, 2011) (relating to IRS).
 These representations were confirmed by Christopher K. Bowen of CME to Rachel Loko of the staff on December 8, 2014.
 See Rule 17f-6(a)(1) under the 1940 Act.
 See Rule 17f-6(a)(1)(i) under the 1940 Act. In February 2012 the CFTC adopted final rules implementing the segregation requirements for swap collateral, including collateral securing IRS, CDS, CIS and FXS (“Collateral Protection Rules”) and conforming amendments to its Part 190 Bankruptcy Rules. The CFTC had originally adopted amendments to its Part 190 Bankruptcy Rules to create a separate “cleared over-the-counter derivatives” account class (“OTC Derivatives Account Class”) that would apply in the event of a bankruptcy of an FCM that became effective May 6, 2010. See 75 Fed. Reg. 17297 (Apr. 6, 2010). The Collateral Protection Rules and conforming amendments to the CFTC’s Part 190 Bankruptcy Rules replace the OTC Derivatives Account Class with a new cleared swap account class. See 77 Fed. Reg. 6336 (Feb. 7, 2012) (adopting final rules regarding the protection of cleared swaps customer collateral and conforming bankruptcy provisions). In addition, the CFTC has adopted Part 22 of its Rules, governing the treatment of cleared swaps margin by FCMs and derivatives clearing organizations, including FCMs’ custody of Cleared Swaps Customer Accounts, as defined in CFTC Rule 22.1.
 See Rule 17f-6(a)(1)(ii) under the 1940 Act.
 See Rule 17f-6(a)(1)(iii) under the 1940 Act.
 See Rule 17f-6(a)(2) under the 1940 Act.
 See Rule 17f-6(a)(3) under the 1940 Act.
 See Custody of Investment Company Assets with Futures Commission Merchants, Investment Company Act Release No. 22389 (Dec. 11, 1996).