Investment Company Act of 1940 — Section 17(f)
Depository Trust Company of Delaware, LLC dba Delaware Depository
September 12, 2016
RESPONSE OF THE OFFICE OF CHIEF COUNSEL
DIVISION OF INVESTMENT MANAGEMENT
Your letter dated September 8, 2016 (“Letter”) requests our assurance that we would not recommend enforcement action to the Securities and Exchange Commission (“Commission”) under Section 17(f)(1) of the Investment Company Act of 1940 (“1940 Act”) against any registered investment company (“Fund”) if the Fund places and maintains custody of its gold or silver bullion in a vault or other secure custody facility in the United States operated by the Depository Trust Company of Delaware, LLC d/b/a/ Delaware Depository, a Delaware limited liability company (the “Company”).
You state that the Company:
- is a private, Delaware-chartered limited purpose trust company;
- provides custody, accounting, and distribution services for precious metals, including but not limited to gold and silver bullion; and
- provides such services for national and state banks, individual retirement account custodians, investment banks, government agencies, and commercial Precious Metals dealers.
You state that the Company, as a limited purpose trust company in the State of Delaware, has certain trust company powers, but: (i) is prohibited under Delaware law from accepting cash deposits, issuing certificates of deposit, and making loans; and (ii) currently does not exercise fiduciary powers. You state that the Company is subject to the State of Delaware’s banking laws and regulations, and supervised by the Office of the Delaware Bank Commissioner (“Delaware Commissioner”). You also state that the Company must meet or exceed a $500,000 net capital requirement, and, subject to criminal penalties in Delaware: (i) submit unaudited quarterly financial reports to the Delaware Commissioner; and (ii) have its operations and management examined periodically by the Delaware Commissioner.
You state that many Precious Metals custodians are exiting such business because of the risks and costs of operating state-of-the-art vaults and secure storage facilities. You state that the Company adheres to a “defense-in-depth” philosophy that combines successive levels of physical safeguards and risk controls that are designed to protect customer assets. You state that such defense-in-depth approach includes: (i) physical security and surveillance; (ii) access controls and electronic security; (iii) internal control procedures; (iv) ensuring the qualifications and integrity of personnel; and (v) insurance. You state that, in addition to its annual Precious Metals audit, the Company recently obtained an unqualified opinion after an independent third-party audit by a Public Company Accounting Oversight Board-registered auditor of the internal controls for its custody operations, including its electronic security controls. Finally, you state that the Company currently has in place: (i) a Precious Metals information and data security plan; (ii) a business continuity and disaster recovery plan; and (iii) a $2 million cybersecurity liability insurance policy.
The Company maintains all-risk Precious Metals storage insurance coverage of $1 billion that is available to cover any Gold or Silver losses sustained by its customers while the Gold or Silver is in the custody of the Company. This amount of insurance coverage is available for each and every claim, which means that previous claims do not reduce the amount of insurance coverage available for future claims. The insurance covers mysterious disappearance, unexplained loss or shortage, and employee infidelity, without an exclusion for fraud or theft by officers or senior managers. In addition, the Company maintains $3 million insurance coverage, per customer, for an out-shipment of Precious Metals that is delivered to the customer by armored carrier.
In the United States, transactions in Gold and Silver can occur under the rules of the CME Group, Inc. (“CME”) or ICE Futures U.S., Inc. (“ICE”). The Company is a CME licensed depository for Gold, and an ICE licensed depository for Gold and Silver (individually or together, a “Licensed Depository”). You state that, as a CME Licensed Depository for Gold, the Company must: (i) have in force insurance against loss of Gold in an amount satisfactory to CME; (ii) provide CME with annual audited financial statements, as they become available; (iii) immediately report to CME any substantial reduction in capital; (iv) at its own expense, have an independent auditor annually audit the Licensed Depository’s inventory in compliance with procedures established by CME, and provide the resulting audit report to CME within thirty days of the date of the completion of the audit; and (v) permit CME, at any time, to examine any and all books and records of the Licensed Depository, for the purpose of ascertaining the stocks relating to Gold on hand. You state that the Company, as an ICE Licensed Depository, has a Vault Regularity Agreement with ICE for Gold and Silver that contains confidential and proprietary provisions. Such provisions of ICE’s Vault Regularity Agreement impose financial reporting and operating requirements on the Company that are substantially similar to the requirements that CME places on a Precious Metals licensed depository. As an ICE Licensed Depository for Gold and Silver, the Company has an ongoing obligation to comply with its Vault Regularity Agreement(s) with ICE. Finally, you state that, because it is an ICE Licensed Depository, the Company is required immediately to report any 20% or more reduction in its tangible net worth to ICE.
In order to qualify as a Licensed Depository of either CME or ICE, each Company facility is subject to approval by CME or ICE, respectively, and, thereafter, is subject to the continuing oversight of CME or ICE. The same approval and continuing oversight applies to each bank Licensed Depository. CME and ICE each is also a “designated contract market” (“DCM”), i.e., an organized exchange for trading commodity-based futures or options contracts that operates under the regulatory oversight of the Commodity Futures Trading Commission (“CFTC”). The DCM designation requires ongoing compliance with the CFTC’s twenty-three “Core Principles.”
The Company is not a reporting company under the Securities and Exchange Act of 1934, as amended (“Exchange Act”). You state that the Company will provide each of its Fund custody customers with: (i) audited annual financial statements for both itself and its parent company, each of which is prepared in accordance with Generally Accepted Accounting Principles by a PCAOB-registered auditor; (ii) the unaudited quarterly financial reports that it files with the Delaware Commissioner subject to criminal penalties; and (iii) if applicable, a report as set forth in your Letter that promptly will inform a Fund of events that materially affect the Company’s Gold and Silver custody operations for Funds (“Material Events Report”).
You also state that the Company will provide management accountability for the Company’s internal controls over financial reporting (“ICFR”) and certain periodic reports. You state, for example, that the Company’s principal executive and financial officers will certify its annual reports, consistent with the requirements of SOX Section 302. You also state that, consistent with the requirements of SOX Sections 406 and 407, the Company: (i) has a code of ethics that applies to its principal executive officer and senior financial officers (or persons performing similar functions); and (ii) will disclose to the Company’s Fund custody customers the composition of its audit committee, including whether it has at least one “audit committee financial expert” serving on its audit committee. Finally, you state that the Company’s annual report will contain an ICFR report by the Company’s management, consistent with SOX section 404(a), and that such report will be provided to the Company’s Fund custody customers. In particular, you state that the Company has updated its ICFR policies and procedures based on the 2013 Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) internal control guidance.
You believe that permitting the Company to serve as a Fund’s Gold or Silver custodian in the United States satisfies the concerns Congress sought to address in adopting Section 17(f)(1) of the 1940 Act, even though the Company is not a bank as defined in Section 2(a)(5) of the 1940 Act or other qualified custodian under Section 17(f) of the 1940 Act and the rules thereunder, as described below.
Section 17(f) of the 1940 Act and the rules thereunder govern the safekeeping of Fund assets, and generally provide that a Fund must place and maintain its securities and similar investments only with certain qualified custodians. These qualified custodians include, for example, banks satisfying the qualifications specified within Section 26(a)(1) of the 1940 Act, a member of a national securities exchange, or other entities that the Commission has prescribed by rule, regulation, or order for the protection of investors. Section 26(a)(1) provides that a bank’s “aggregate capital, surplus, and undivided profits… not be less than $500,000.” The legislative history and requirements of Section 17(f) indicate that Congress intended Fund assets to be kept by financially secure entities that have sufficient safeguards against misappropriation.
The Company is not a bank as defined in Section 2(a)(5) of the 1940 Act, a member of a national securities exchange, or any of the other entities permitted to serve as a custodian to a Fund pursuant to rules and regulations adopted by the Commission under Section 17(f) of the 1940 Act. Nonetheless, you argue that the Company’s safekeeping of Precious Metals is at least as secure and competent as the same services available through any entity that would qualify under Section 17(f) of the 1940 Act.
In support of your contention, you represent that the Company and its parent company have an amount of shareholder equity and surplus that each of CME and ICE deems to be satisfactory, and that is substantially greater than the amount required under Sections 17(f)(1) and 26(a)(1) of the 1940 Act (i.e., approximately 100 times greater than required under Sections 17(f)(1) and 26(a)(1)). You further represent that the Company maintains $1 billion of insurance coverage, which is available to cover any Precious Metals losses sustained by the Company’s customers, including Funds, while in the custody of the Company. You note that this amount of insurance coverage is available for each and every claim, which means that previous claims do not reduce the amount of insurance coverage available for future claims. You contend that the vault and secure storage facilities owned and operated by the Company to store Gold and Silver are not materially distinguishable from the analogous vault facilities used by banks. Therefore, you believe that the Company’s vault and secure storage facilities provide an equally secure storage location for Gold and Silver. Moreover, you believe that permitting Funds to place and maintain custody of their Gold and Silver with the Company would: (i) provide Funds with a geographically diverse option to custody Gold and Silver; and (ii) enhance competition in this market, resulting in greater efficiencies and lower costs with respect to Gold and Silver custody services for Funds.
Based upon the facts and representations that are set forth in your letter, we would not recommend enforcement action to the Commission under Section 17(f)(1) of the 1940 Act against a Fund if the Fund places and maintains custody of its Gold or Silver in a vault or other secure custody facility owned and operated by the Company in the United States, provided that a majority of the Fund’s board members, including a majority of the board members who are not “interested persons” under Section 2(a)(19) of the 1940 Act, determines that maintaining custody of a Fund’s Gold or Silver with the Company is in the best interest of the Fund and its shareholders. In making these determinations, the board or its delegate also should consider whether: (i) the Gold and Silver will be subject to reasonable care; and (ii) the Company can provide services at least equal in nature and quality to the services that could be provided by bank custodians in the same market(s) after consideration of all of the relevant factors.
In particular, we rely on your representations that:
- Delaware Depository will provide financial and material event disclosure about its operations as detailed in your Letter.
- Delaware Depository will remain a CME Licensed Depository or an ICE Licensed Depository with respect to each vault or secure facility that will be used to custody a Fund’s Gold or Silver.
- Delaware Depository continues to maintain insurance coverage of at least $1 billion with respect to each such vault or secure facility to cover any custody-related losses incurred by its customers, including Funds. The insurance coverage must be available for each and every claim, which means that previous claims do not reduce the $1 billion of insurance coverage per vault or secure facility available for future claims.
Our letter provides our position on enforcement action only, and does not provide any legal conclusions on the issues presented. Because our position is based on all of the facts and representations made in your letter, you should note that any different facts or circumstances might require a different conclusion.
Stephan N. Packs
 The term “gold or silver bullion,” as used herein: (i) includes gold or silver bullion in bar, plate, ingot, sponge, or coin form; and (ii) is not held as an investment in the dollar value denomination that is ascribed to a certain gold or silver coin by federal law, see, e.g., 31 U.S.C. § 5112(a)(7) - (11) (setting forth the diameter, weight, and metal content of certain dollar-amount coins that the U.S. Treasury is authorized to mint and issue) (hereafter “Gold” and/or “Silver”). Any Gold or Silver that is held in custody by the Company for a Fund is investment property that will be held solely based on the intrinsic value of its metal content. As used herein, the term “Precious Metals” includes Gold, Silver, and platinum group metals.
 You state that the Company does not own or operate armored carrier transportation for Precious Metals. Distribution services that are offered by the Company for the delivery of Gold and Silver to or from its vaults include, for example, advanced shipment preparation; customs clearing arrangements; and delivery to an armored, postal, or other customer-approved carrier.
 See 5 Del.C. § 773(4) (trust company powers). You also state that the Company qualifies as a “bank” under the Internal Revenue Code provision for individual retirement accounts. See 26 U.S.C. § 408(n)(3).
 You state that such quarterly financial reports are signed and verified under oath by the Company’s President and attested to by at least two company directors. You also state that the Delaware Commissioner historically has examined the Company once every 12-15 months.
 You explain that each building in which the Company stores Gold and Silver is owned outright, without a mortgage or other third-party financing, by a limited liability real estate holding company that is under common ownership with, and exclusively owned by, the Company’s parent company.
 The Company uses multiple measures to protect and safely operate its Gold and Silver custody facilities. For example, the Company uses: (i) Universal Laboratories-rated vaults and secure warehouses that are located in and around Wilmington, Delaware; (ii) surveillance by all-weather, all-light cameras; closed circuit television; and alarms equipped with motion, sound, and vibration detection technology; (iii) access controls, including mantraps with interlocking doors and pre-programmed, permission-limited keycards; (iv) walk-through metal detectors with an integrated metal content software program; and (v) background checks, drug testing, and a company-wide ethics policy with sanctions to oversee the competency and integrity of all the Company’s personnel.
 See note 14 and accompanying text, infra .
 In the interests of strengthening investor protection, the Sarbanes Oxley Act of 2002 (“SOX”) created the Public Company Accounting Oversight Board (“PCAOB”) to provide independent oversight of brokers, dealers, and the auditors of U.S. public companies.
 You state that a Service Organization Control 1 (SOC 1), Type I audit report in accordance with the American Institute of Certified Public Accountants’ (AICPA) Statement on Standards for Attestation Engagements No. 16 (SSAE 16) evaluates, among other things, the suitability of the design of internal controls as of a specified date. You also state that: (i) the scope of such April 2015 SOC 1, SSAE 16 audit, as defined by the Company and its auditor, tested the Company’s internal controls over physical security, information security, account administration, transaction processing and reconciliation, client reporting, and layers of electronic security controls; and (ii) if there is a material change in such scope or to any internal control audited in such SOC 1, SSAE 16 audit, the Company will initiate a new SOC 1, SSAE 16 audit within 60 calendar days of such change. Finally, you state that the Company will undergo a SOC 1, SSAE 16 audit at least once every three years, and provide the resulting audit report to each of the Company’s Fund custody customers.
 Such insurance supplements the insurance coverage of the armored carrier.
 CME owns the NYMEX and COMEX independent exchanges. NYMEX is the New York Mercantile Exchange Inc. COMEX is the Commodity and Metals Exchange, Inc.
 See NYMEX Rule 703.A.(2).
 See NYMEX Rule 703.A.(6).
 See NYMEX Rule 703.A.(5).
 See Section 5(d) of the CEA. A DCM is subject to oversight by the CFTC’s Division of Market Oversight (“DMO”). Through its different branches, DMO uses several regulatory tools to determine compliance with the Core Principles, such as, for example: (i) assessment of a DCM’s detailed quarterly reports about financial resources; and (ii) rule enforcement review (“RER”) examinations that typically focus on audit trail, disciplinary programs, trade practice, and market surveillance.
 A Material Events Report: (i) is modeled, in pertinent part, on Exchange Act Form 8-K; and (ii) will be provided within four business days of such material event. In particular and in accordance with SOX section 406(b) and its implementing rules, the Company’s Material Events Report will include the prompt disclosure to a Fund custody customer of any material change in or waiver of the code of ethics for senior financial officers.
 See 15 U.S.C. § 7241 (corporate responsibility for financial reports). Such certification requirements and other protective measures implemented by SOX apply to not only operating companies, but also to Funds. See, e.g., Certification of Management Investment Company Shareholder Reports and Designation of Certified Shareholder Reports as Exchange Act Periodic Reporting Forms; Disclosure Required by Sections 406 and 407 of the Sarbanes-Oxley Act of 2002, Investment Company Act Release No. 25914 (Jan. 27, 2003) (extending such Exchange Act certification requirements to Fund Form N-CSR), available at http://www.sec.gov/rules/final/34-47262.htm.
 You state that, measuring the Company’s size by its tangible net worth and assuming it were a reporting company under the Exchange Act, SOX Section 404(c) would exempt the Company from the auditor attestation requirement of SOX Section 404(b). The Commission in 2010 adopted amendments to its rules and forms under the Exchange Act to conform them to SOX Section 404(c), as added by Section 989G of the Dodd-Frank Act of 2010. See Internal Control Over Financial Reporting In Exchange Act Periodic Reports of Non-Accelerated Filers, Exchange Act Release No. 62914, Sept. 15, 2010.
 See COSO’s Internal Control - Integrated Framework (2013) (superseding after Dec. 15, 2014 COSO’s 2006 Internal Control over Financial Reporting - Guidance for Smaller Public Companies, see, e.g., http://www.coso.org/IC.htm. COSO is a voluntary private organization dedicated to improving organizational performance and governance through effective internal control, enterprise risk management, and fraud deterrence. The Commission does not mandate the use of any particular framework for ICFR, but has stated that COSO’s framework satisfies the Commission’s criteria and may be used for management’s evaluation and disclosure requirements. See, e.g., Management’s Report on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports, Exchange Act Release No. 34-47986 (Jun. 5, 2003).
 Investment Trusts and Investment Companies: Hearings on S. 3580 Before a Subcomm. of the Senate Comm. on Banking and Currency, 76th Cong., 3d Sess. 264 (1940). Cf. 10 SEC ANN.REP. 169 (1994) (discussing Section 17(f) of the 1940 Act and its protections against theft and embezzlement by affiliated persons).
 You state that the majority of Precious Metals custodians in the United States are located in the greater New York City area, largely as a result of CME rules. See NYMEX Rule 703.A.(11) (with respect to the conditions for approval as a metal service provider, stating, in pertinent part, that a depository for Gold “must qualify and be designated as a weighmaster and must be located within a 150-mile radius of the City of New York”).
 See also Privately Offered Securities under the Investment Advisers Act Custody Rule, IM Guidance Update No. 2013-04 (Aug. 2013) (in the context of the Investment Advisers Act of 1940, investment advisers argued that maintaining certain stock certificates at a qualified custodian did not add meaningful protection to investors in pooled investment vehicles, but instead could add substantial costs typically borne by these investors).
 The board may delegate its responsibilities to assess the custodial risks of maintaining Precious Metals in the custody of the Company to the same extent as permitted by Rule 17f-5 under the 1940 Act.
 Cf. Rule 17f-5 under the 1940 Act.
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