# Money Market Fund Reform; Amendments to Form PF > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2013-13687 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** June 19, 2013 - **Citation:** 78 FR 36834 ## Text SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 210, 230, 239, 270, 274 and 279 [Release No. 33-9408, IA-3616; IC-30551; File No. S7-03-13] RIN 3235-AK61 Money Market Fund Reform; Amendments to Form PF AGENCY: Securities and Exchange Commission. ACTION: Proposed rule. SUMMARY: The Securities and Exchange Commission (“Commission” or “SEC”) is proposing two alternatives for amending rules that govern money market mutual funds (or “money market funds”) under the Investment Company Act of 1940. The two alternatives are designed to address money market funds' susceptibility to heavy redemptions, improve their ability to manage and mitigate potential contagion from such redemptions, and increase the transparency of their risks, while preserving, as much as possible, the benefits of money market funds. The first alternative proposal would require money market funds to sell and redeem shares based on the current market-based value of the securities in their underlying portfolios, rounded to the fourth decimal place ( e.g., $1.0000), i.e., transact at a “floating” net asset value per share (“NAV”). The second alternative proposal would require money market funds to impose a liquidity fee (unless the fund's board determines that it is not in the best interest of the fund) if a fund's liquidity levels fell below a specified threshold and would permit the funds to suspend redemptions temporarily, i.e., to “gate” the fund under the same circumstances. Under this proposal, we could adopt either alternative by itself or a combination of the two alternatives. The SEC also is proposing additional amendments that are designed to make money market funds more resilient by increasing the diversification of their portfolios, enhancing their stress testing, and increasing transparency by requiring money market funds to provide additional information to the SEC and to investors. The proposal also includes amendments requiring investment advisers to certain unregistered liquidity funds, which can resemble money market funds, to provide additional information about those funds to the SEC. DATES: Comments should be received on or before September 17, 2013. ADDRESSES: Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( http://www.sec.gov/rules/proposed.shtml ); or • Send an email to rule-comments@sec.gov . Please include File Number S7-03-13 on the subject line; or • Use the Federal eRulemaking Portal ( http://www.regulations.gov ). Follow the instructions for submitting comments. Paper Comments • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090. All submissions should refer to File Number S7-03-13. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( http://www.sec.gov/rules/proposed.shtml ). Comments are also available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. FOR FURTHER INFORMATION CONTACT: Adam Bolter, Senior Counsel; Brian McLaughlin Johnson, Senior Counsel; Kay-Mario Vobis, Senior Counsel; Amanda Hollander Wagner, Senior Counsel; Thoreau A. Bartmann, Branch Chief; or Sarah G. ten Siethoff, Senior Special Counsel, Investment Company Rulemaking Office, at (202) 551-6792, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-8549. SUPPLEMENTARY INFORMATION: The Commission is proposing for public comment amendments to rules 419 [17 CFR 230.419] and 482 [17 CFR 230.482] under the Securities Act of 1933 [15 U.S.C. 77a—z-3] (“Securities Act”), rules 2a-7 [17 CFR 270.2a-7], 12d3-1 [17 CFR 270.12d3-1], 18f-3 [17 CFR 270.18f-3], 22e-3 [17 CFR 270.22e-3], 30b1-7 [17 CFR 270.30b1-7], 31a-1 [17 CFR 270.31a-1], and new rule 30b1-8 [17 CFR 270.30b1-8] under the Investment Company Act of 1940 [15 U.S.C. 80a] (“Investment Company Act” or “Act”), Form N-1A under the Investment Company Act and the Securities Act, Form N-MFP under the Investment Company Act, and section 3 of Form PF under the Investment Advisers Act [15 U.S.C. 80b], and new Form N-CR under the Investment Company Act. 1 1 Unless otherwise noted, all references to statutory sections are to the Investment Company Act, and all references to rules under the Investment Company Act, including rule 2a-7, will be to Title 17, Part 270 of the Code of Federal Regulations [17 CFR 270]. Table of Contents I. Introduction II. Background A. Role of Money Market Funds B. Economics of Money Market Funds 1. Incentives Created by Money Market Funds' Valuation and Pricing Methods 2. Incentives Created by Money Market Funds' Liquidity Needs 3. Incentives Created by Imperfect Transparency, Including Sponsor Support 4. Incentives Created by Money Market Funds Investors' Desire To Avoid Loss 5. Effects on Other Money Market Funds, Investors, and the Short-Term Financing Markets C. The 2007-2008 Financial Crisis D. Examination of Money Market Fund Regulation Since the Financial Crisis 1. The 2010 Amendments 2. The Eurozone Debt Crisis and U.S. Debt Ceiling Impasse of 2011 3. Our Continuing Consideration of the Need for Additional Reforms III. Discussion A. Floating Net Asset Value 1. Certain Considerations Relating to the Floating NAV Proposal 2. Money Market Fund Pricing 3. Exemption to the Floating NAV Requirement for Government Money Market Funds 4. Exemption to the Floating NAV Requirement for Retail Money Market Funds 5. Effect on Other Money Market Fund Exemptions 6. Tax and Accounting Implications of Floating NAV Money Market Funds 7. Operational Implications of Floating NAV Money Market Funds 8. Disclosure Regarding Floating NAV 9. Transition B. Standby Liquidity Fees and Gates 1. Analysis of Certain Effects of Liquidity Fees and Gates 2. Terms of the Liquidity Fees and Gates 3. Exemptions To Permit Liquidity Fees and Gates 4. Amendments to Rule 22e-3 5. Exemptions From the Liquidity Fees and Gates Requirement 6. Operational Considerations Relating to Liquidity Fees and Gates 7. Tax Implications of Liquidity Fees 8. Disclosure Regarding Liquidity Fees and Gates 9. Alternative Redemption Restrictions C. Potential Combination of Standby Liquidity Fees and Gates and Floating Net Asset Value 1. Potential Benefits of a Combination 2. Potential Drawbacks of a Combination 3. Effect of Combination 4. Operational Issues D. Certain Alternatives Considered 1. Alternatives in the FSOC Proposed Recommendations 2. Alternatives in the PWG Report E. Macroeconomic Effects of the Proposals 1. Effect on Current Investment in Money Market Funds 2. Effect on Current Issuers and the Short-Term Financing Markets F. Amendments to Disclosure Requirements 1. Financial Support Provided to Money Market Funds 2. Daily Disclosure of Daily Liquid Assets and Weekly Liquid Assets 3. Daily Web Site Disclosure of Current NAV per Share 4. Disclosure of Portfolio Holdings 5. Daily Calculation of Current NAV per Share Under the Liquidity Fees and Gates Proposal 6. Money Market Fund Confirmation Statements G. New Form N-CR 1. Proposed Disclosure Requirements Under Both Reform Alternatives 2. Additional Proposed Disclosure Requirements Under Liquidity Fees and Gates Alternative 3. Economic Analysis H. Amendments to Form N-MFP Reporting Requirements 1. Amendments Related to Rule 2a-7 Reforms 2. New Reporting Requirements 3. Clarifying Amendments 4. Public Availability of Information 5. Request for Comment on Frequency of Filing 6. Operational Implications I. Amendments to Form PF Reporting Requirements 1. Overview of Proposed Amendments to Form PF 2. Utility of New Information, Including Benefits, Costs, and Economic Implications J. Diversification 1. Treatment of Certain Affiliates for Purposes of Rule 2a-7's Five Percent Issuer Diversification Requirement 2. Asset-Backed Securities 3. The Twenty-Five Percent Basket 4. Additional Diversification Alternatives Considered K. Issuer Transparency L. Stress Testing 1. Stress Testing Under the Floating NAV Alternative 2. Stress Testing Under the Liquidity Fees and Gates Alternative 3. Economic Analysis 4. Combined Approach M. Clarifying Amendments 1. Definitions of Daily Liquid Assets and Weekly Liquid Assets 2. Definition of Demand Feature 3. Short-Term Floating Rate Securities 4. Second Tier Securities N. Proposed Compliance Date 1. Compliance Period for Amendments Related to Floating NAV 2. Compliance Period for Amendments Related to Liquidity Fees and Gates 3. Compliance Period for Other Amendments to Money Market Fund Regulation 4. Request for Comment O. Request for Comment and Data IV. Paperwork Reduction Act Analysis A. Alternative 1: Floating Net Asset Value 1. Rule 2a-7 2. Rule 22e-3 3. Rule 30b1-7 and Form N-MFP 4. Rule 30b1-8 and Form N-CR 5. Rule 34b-1(a) 6. Rule 482 7. Form N-1A 8. Advisers Act Rule 204(b)-1 and Form PF B. Alternative 2: Standby Liquidity Fees and Gates 1. Rule 2a-7 2. Rule 22e-3 3. Rule 30b1-7 and Form N-MFP 4. Rule 30b1-8 and Form N-CR 5. Rule 34b-1(a) 6. Rule 482 7. Form N-1A 8. Advisers Act Rule 204(b)-1 and Form PF C. Request for Comments V. Regulatory Flexibility Act Certification VI. Statutory Authority Text of Proposed Rules and Forms I. Introduction Money market funds are a type of mutual fund registered under the Investment Company Act and regulated under rule 2a-7 under the Act. 2 Money market funds pay dividends that reflect prevailing short-term interest rates, generally are redeemable on demand, and, unlike other investment companies, seek to maintain a stable net asset value per share (“NAV”), typically $1.00. 3 This combination of principal stability, liquidity, and payment of short-term yields has made money market funds popular cash management vehicles for both retail and institutional investors. As of February 28, 2013, there were approximately 586 money market funds registered with the Commission, and these funds collectively held over $2.9 trillion of assets. 4 2 Money market funds are also sometimes called “money market mutual funds” or “money funds.” 3 See generally Valuation of Debt Instruments and Computation of Current Price Per Share by Certain Open-End Investment Companies (Money Market Funds), Investment Company Act Release No. 13380 (July 11, 1983) [48 FR 32555 (July 18, 1983)] (“1983 Adopting Release”). Most money market funds seek to maintain a stable net asset value per share of $1.00, but a few seek to maintain a stable net asset value per share of a different amount, e.g., $10.00. For convenience, throughout this Release, the discussion will simply refer to the stable net asset value of $1.00 per share. 4 Based on Form N-MFP data. SEC regulations require that money market funds report certain portfolio information on a monthly basis to the SEC on Form N-MFP. See rule 30b1-7. Money market funds seek to maintain a stable share price by limiting their investments to short-term, high-quality debt securities that fluctuate very little in value under normal market conditions. 5 They also rely on exemptions provided in rule 2a-7 that permit them to value their portfolio securities using the “amortized cost” method of valuation and to use the “penny-rounding” method of pricing. 6 Under the amortized cost method, a money market fund's portfolio securities generally are valued at cost plus any amortization of premium or accumulation of discount, rather than at their value based on current market factors. 7 The penny rounding method of pricing permits a money market fund when pricing its shares to round the fund's net asset value to the nearest one percent ( i.e., the nearest penny). 8 Together, these valuation and pricing techniques create a “rounding convention” that permits a money market fund to sell and redeem shares at a stable share price without regard to small variations in the value of the securities that comprise its portfolio. 9 Other types of mutual funds not regulated by rule 2a-7, must calculate their daily NAVs using market-based factors (with some exceptions) and do not use penny rounding. 10 We note, however, that banks and other companies also make wide use of amortized cost accounting to value certain of their assets. 11 5 Throughout this Release, we generally use the term “stable share price” to refer to the stable share price that money market funds seek to maintain and compute for purposes of distribution, redemption and repurchases of fund shares. 6 Money market funds use a combination of the two methods so that, under normal circumstances, they can use the penny rounding method to maintain a price of $1.00 per share without pricing to the third decimal point like other mutual funds, and the amortized cost method so that they need not strike a daily market-based NAV. See infra text accompanying nn.163, 177. 7 See rule 2a-7(a)(2). See also infra note 10. 8 See rule 2a-7(a)(20). 9 When the Commission initially established its regulatory framework allowing money market funds to maintain a stable share price through use of the amortized cost method of valuation and/or the penny rounding method of pricing (so long as they abided by certain risk limiting conditions), it did so understanding the benefits that stable value money market funds provided as a cash management vehicle, particularly for smaller investors, and focusing on minimizing inappropriate dilution of assets and returns for shareholders. See Proceedings before the Securities and Exchange Commission in the Matter of InterCapital Liquid Asset Fund, Inc. et al., 3-5431, Dec. 28, 1978, at 1533 (Statement of Martin Lybecker, Division of Investment Management at the Securities and Exchange Commission) (stating that Commission staff had learned over the course of the hearings the strong preference of money market fund investors to have a stable share price and that with the right risk limiting conditions the Commission could limit the likelihood of a deviation from that stable value, addressing Commission concerns about dilution); 1983 Adopting Release, supra note 3, at nn.42-43 and accompanying text (“[T]he provisions of the rule impose obligations on the board of directors to assess the fairness of the valuation or pricing method and take appropriate steps to ensure that shareholders always receive their proportionate interest in the money market fund.”). At that time, the Commission was persuaded that deviations to an extent that would cause material dilution generally would not occur given the risk limiting conditions of the rule. See id., at nn.41-42 and accompanying text (noting that testimony from the original money market fund exemptive order hearings alleged that the risk limiting conditions, short of extraordinarily adverse conditions in the market, should ensure that a properly managed money market fund should be able to maintain a stable price per share and that rule 2a-7 is based on that representation). 10 For a mutual fund not regulated under rule 2a-7, the Investment Company Act and applicable rules generally require that it price its securities at the current net asset value per share by valuing portfolio instruments at market value or, if market quotations are not readily available, at fair value as determined in good faith by the fund's board of directors. See section 2(a)(41)(B) of the Act and rules 2a-4 and 22c-1. The Commission, however, has stated that it would not object if a mutual fund board of directors determines, in good faith, that the value of debt securities with remaining maturities of 60 days or less is their amortized cost, unless the particular circumstances warrant otherwise. See Valuation of Debt Instruments by Money Market Funds and Certain Other Open-End Investment Companies, Investment Company Act Release No. 9786 (May 31, 1977) [42 FR 28999 (June 7, 1977)] (“1977 Valuation Release”). In this regard, the Commission has stated that the “fair value of securities with remaining maturities of 60 days or less may not always be accurately reflected through the use of amortized cost valuation, due to an impairment of the credit worthiness of an issuer, or other factors. In such situations, it would appear to be incumbent upon the directors of a fund to recognize such factors and take them into account in determining `fair value.' ” Id. 11 See FASB ASC paragraph 320-10-35-1c indicating investments in debt securities classified as held-to-maturity shall be measured subsequently at amortized cost in the statement of financial position. See also Vincent Ryan, FASB Exposure Draft Alarms Bank CFOs (June 2, 2010) available at http://www.cfo.com/article.cfm/14502294 . In exchange for the ability to rely on the exemptions provided by rule 2a-7, the rule imposes important conditions designed to limit deviations between the fund's $1.00 share price and the market value of the fund's portfolio. It requires money market funds to maintain a significant amount of liquid assets and to invest in securities that meet the rule's credit quality, maturity, and diversification requirements. 12 For example, a money market fund's portfolio securities must meet certain credit quality requirements, such as posing minimal credit risks. 13 The rule also places limits on the remaining maturity of securities in the fund's portfolio to limit the interest rate and credit spread risk to which a money market fund may be exposed. A money market fund generally may not acquire any security with a remaining maturity greater than 397 days, and the dollar-weighted average maturity of the securities owned by the fund may not exceed 60 days and the fund's dollar-weighted average life to maturity may not exceed 120 days. 14 Money market funds also must maintain sufficient liquidity to meet reasonably foreseeable redemptions, and generally must invest at least 10% of their portfolios in assets that can provide daily liquidity and invest at least 30% of their portfolios in assets that can provide weekly liquidity. 15 Finally, rule 2a-7 also requires money market funds to diversify their portfolios by generally limiting the funds to investing no more than 5% of their portfolios in any one issuer and no more than 10% of their portfolios in securities issued by, or subject to guarantees or demand features ( i.e., puts) from, any one institution. 16 12 See rule 2a-7(c)(2), (3), (4), and (5). 13 See rule 2a-7(a)(12), (c)(3)(ii). 14 Rule 2a-7(c)(2). 15 See rule 2a-7(c)(5). The 10% daily liquid asset requirement does not apply to tax exempt funds. 16 See rule 2a-7(c)(4). Rule 2a-7 also includes certain procedural requirements overseen by the fund's board of directors. These include the requirement that the fund periodically calculate the market-based value of the portfolio (“shadow price”) 17 and compare it to the fund's stable share price; if the deviation between these two values exceeds 1/2 of 1 percent (50 basis points), the fund's board of directors must consider what action, if any, should be initiated by the board, including whether to re-price the fund's securities above or below the fund's $1.00 share price (an event colloquially known as “breaking the buck”). 18 17 See rule 2a-7(c)(8)(ii)(A). 18 See rule 2a-7(c)(8)(ii)(A) and (B). Regardless of the extent of the deviation, rule 2a-7 imposes on the board of a money market fund a duty to take appropriate action whenever the board believes the extent of any deviation may result in material dilution or other unfair results to investors or current shareholders. Rule 2a-7(c)(8)(ii)(C). In addition, the money market fund can use the amortized cost or penny-rounding methods only as long as the board of directors believes that they fairly reflect the market-based net asset value per share. See rule 2a-7(c)(1). Different types of money market funds have been introduced to meet the differing needs of money market fund investors. Historically, most investors have invested in “prime money market funds,” which hold a variety of taxable short-term obligations issued by corporations and banks, as well as repurchase agreements and asset-backed commercial paper. 19 “Government money market funds” principally hold obligations of the U.S. government, including obligations of the U.S. Treasury and federal agencies and instrumentalities, as well as repurchase agreements collateralized by government securities. Some government money market funds limit themselves to holding only U.S. Treasury obligations or repurchase agreements collateralized by U.S. Treasury securities and are called “Treasury money market funds.” Compared to prime funds, government and Treasury money market funds generally offer greater safety of principal but historically have paid lower yields. “Tax-exempt money market funds” primarily hold obligations of state and local governments and their instrumentalities, and pay interest that is generally exempt from federal income tax for individual taxpayers. 19 See Investment Company Institute, 2013 Investment Company Fact Book, at 178, Table 37 (2013), available at http://www.ici.org/pdf/2013_factbook.pdf . In the analysis that follows, we begin by reviewing the role of money market funds and the benefits they provide investors. We then review the economics of money market funds. This includes a discussion of several features of money market funds that, when combined, can create incentives for fund shareholders to redeem shares during periods of stress, as well as the potential impact that such redemptions can have on the fund and the markets that provide short-term financing. 20 We then discuss money market funds' experience during the 2007-2008 financial crisis against this backdrop. We next analyze our 2010 reforms and their impact on the heightened redemption activity during the 2011 Eurozone sovereign debt crisis and U.S. debt ceiling impasse. 20 Throughout this Release, we generally refer to “short-term financing markets” to describe the markets for short-term financing of corporations, banks, and governments. Based on these analyses as well as other publicly available analytical works, some of which are contained in the report responding to certain questions posed by Commissioners Aguilar, Paredes and Gallagher (“RSFI Study”) 21 prepared by staff from the Division of Risk, Strategy, and Financial Innovation (“RSFI”), we propose two alternative frameworks for additional regulation of money market funds. Each alternative seeks to preserve the ability of money market funds to function as an effective and efficient cash management tool for investors, but also address certain features in money market funds that can make them susceptible to heavy redemptions, provide them with better tools to manage and mitigate potential contagion from high levels of redemptions, and increase the transparency of their risks. We are also proposing amendments that would apply under each alternative that would result in additional changes to money market fund disclosure, diversification limits, and stress testing, among other reforms. 22 21 See Response to Questions Posed by Commissioners Aguilar, Paredes, and Gallagher, a report by staff of the Division of Risk, Strategy, and Financial Innovation (Nov. 30, 2012), available at http://www.sec.gov/news/studies/2012/money-market-funds-memo-2012.pdf. 22 We note that we have consulted and coordinated with the Consumer Financial Protection Bureau regarding this proposed rulemaking in accordance with section 1027(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. II. Background A. Role of Money Market Funds The combination of principal stability, liquidity, and short-term yields offered by money market funds, which is unlike that offered by other types of mutual funds, has made money market funds popular cash management vehicles for both retail and institutional investors, as discussed above. Retail investors use money market funds for a variety of reasons, including, for example, to hold cash for short or long periods of time or to take a temporary “defensive position” in anticipation of declining equity markets. Institutional investors commonly use money market funds for cash management in part because, as discussed later in this Release, money market funds provide efficient diversified cash management due both to the scale of their operations and their expertise. 23 23 See infra notes 72-73 and accompanying text. Money market funds, due to their popularity with investors, have become an important source of financing in certain segments of the short-term financing markets, as discussed in more detail in section III.E.2 below. Money market funds' ability to maintain a stable share price contributes to their popularity. Indeed, the $1.00 stable share price has been one of the fundamental features of money market funds. As discussed in more detail in section III.A.7 below, the funds' stable share price facilitates the funds' role as a cash management vehicle, provides tax and administrative convenience to both money market funds and their shareholders, and enhances money market funds' attractiveness as an investment option. Rule 2a-7, in addition to facilitating money market funds' maintenance of stable share prices, also benefits investors by making available an investment option that provides an efficient and diversified means for investors to participate in the short-term financing markets through a portfolio of short-term, high quality debt securities. 24 Many investors likely would find it impractical or inefficient to invest directly in the short-term financing markets, and some investors likely would not want the relatively undiversified exposure that can result from investing in those markets on a smaller scale or that could be associated with certain alternatives to money market funds, like bank deposits. 25 Although other types of mutual funds can and do invest in the short-term financing markets, investors may prefer money market funds because the risk the funds may undertake is limited under rule 2a-7 (and because of the funds' corresponding ability to maintain a stable share price). 26 24 See, e.g., Comment Letter of Harvard Business School Professors Samuel Hanson, David Scharfstein, & Adi Sunderam (Jan. 8, 2013) (available in File No. FSOC-2012-0003) (“Harvard Business School FSOC Comment Letter”) (explaining that prime money market funds, by providing a way for investors to invest in the short-term financing markets indirectly, “provides MMF investors with a diversified pool of deposit-like instruments with the convenience of a single deposit-like account,” and that, “[g]iven the fixed costs of managing a portfolio of such instruments, MMFs provide scale efficiencies for small-balance savers ( e.g., households and small and mid-sized nonfinancial corporations) along with a valuable set of transactional services ( e.g., check-writing and other cash-management functions).”). 25 Id. See also, e.g., Comment Letter of Investment Company Institute (Jan. 24, 2013) (available in File No. FSOC-2012-0003) (“ICI Jan. 24 FSOC Comment Letter”) (explaining that although bank deposits are an alternative to money market funds, “corporate cash managers and other institutional investors do not view an undiversified holding in an uninsured (or underinsured) bank account as having the same risk profile as an investment in a diversified short-term money market fund subject to the risk-limiting conditions of Rule 2a-7”). 26 See, e.g., ICI Jan. 24 FSOC Comment Letter, supra note 25 (“The regulatory regime established by Rule 2a-7 has proven to be effective in protecting investors' interests and maintaining their confidence in money market funds.”). Therefore, although rule 2a-7 permits money market funds to use techniques to value and price their shares not permitted to other mutual funds (or not permitted to the same extent), the rule also imposes additional protective conditions on money market funds. These additional conditions are designed to make money market funds' use of the pricing techniques permitted by rule 2a-7 consistent with the protection of investors, and more generally, to make available an investment option for investors that seek an efficient way to obtain short-term yields. These conditions thus reflect the differences in the way money market funds operate and the ways in which investors use money market funds compared to other types of mutual funds. We recognize, and considered when developing the reform proposals we are putting forward today, that money market funds are a popular investment product and that they provide many benefits to investors and to the short-term financing markets. Indeed, it is for these reasons that we are proposing reforms designed to make the funds more resilient, as discussed throughout this Release, while preserving, to the extent possible, the benefits of money market funds. These reform proposals may, however, make money market funds less attractive to certain investors as discussed more fully below. B. Economics of Money Market Funds The combination of several features of money market funds can create an incentive for their shareholders to redeem shares heavily in periods of financial stress, as discussed in greater detail in the RSFI Study. We discuss these factors below, as well as the harm that can result from heavy redemptions in money market funds. 1. Incentives Created by Money Market Funds' Valuation and Pricing Methods Money market funds are unique among mutual funds in that rule 2a-7 permits them to use the amortized cost method of valuation and the penny-rounding method of pricing. As discussed above, these valuation and pricing techniques allow a money market fund to sell and redeem shares at a stable share price without regard to small variations in the value of the securities that comprise its portfolio, and thus to maintain a stable $1.00 share price under most conditions. Although the stable $1.00 share price calculated using these methods provides a close approximation to market value under normal market conditions, differences may exist because market prices adjust to changes in interest rates, credit risk, and liquidity. We note that the vast majority of money market fund portfolio securities are not valued based on market prices obtained through secondary market trading because the secondary markets for most portfolio securities such as commercial paper, repos, and certificates of deposit are not actively traded. Accordingly, most money market fund portfolio securities are valued largely through “mark-to-model” or “matrix pricing” estimates. 27 The market value of a money market fund's portfolio securities also may experience relatively large changes if a portfolio asset defaults or its credit profile deteriorates. 28 Today differences within the tolerance defined by rule 2a-7 are reflected only in a fund's shadow price, and not the share price at which the fund satisfies purchase and redemption transactions. 27 See, e.g., Harvard Business School FSOC Comment Letter, supra note 24 (“secondary markets for commercial paper and other private money market assets such as CDs are highly illiquid. Therefore, the asset prices used to calculate the floating NAV would largely be accounting or model-based estimates, rather than prices based on secondary market transactions with sizable volumes.”); Institutional Money Market Funds Association, The Use of Amortised Cost Accounting by Money Market Funds, available at http://www.immfa.org/assets/files/IMMFA%20The%20use%20of%20amortised%20cost%20accounting%20by%20MMF.pdf (noting that “investors typically hold money market instruments to maturity, and so there are relatively few prices from the secondary market or broker quotes,” that as a result most money market funds value their assets using yield curve pricing, discounted cash flow pricing, and amortized cost valuation, and surveying several money market funds and finding that only U.S. Treasury bills are considered “level one” assets under the relevant accounting standards for which traded or quoted prices are generally available). 28 The credit quality standards in rule 2a-7 are designed to minimize the likelihood of such a default or credit deterioration. Deviations that arise from changes in interest rates and credit risk are temporary as long as securities are held to maturity, because amortized cost values and market-based values converge at maturity. If, however, a portfolio asset defaults or an asset sale results in a realized capital gain or loss, deviations between the stable $1.00 share price and the shadow price become permanent. For example, if a portfolio experiences a 25 basis point loss because an issuer defaults, the fund's shadow price falls from $1.0000 to $0.9975. Even though the fund has not broken the buck, this reduction is permanent and can only be rebuilt internally in the event that the fund realizes a capital gain elsewhere in the portfolio, which generally is unlikely given the types of securities in which money market funds typically invest. 29 29 It is important to understand that, in practice, a money market fund cannot use future portfolio earnings to rebuild its shadow price because Subchapter M of the Internal Revenue Code effectively forces money market funds to distribute virtually all of their earnings to investors. These restrictions can cause permanent reductions in shadow prices to persist over time, even if a fund's other portfolio securities are otherwise unimpaired. If a fund's shadow price deviates far enough from its stable $1.00 share price, investors may have an economic incentive to redeem money market fund shares. 30 For example, investors may have an incentive to redeem shares when a fund's shadow price is less than $1.00. 31 If investors redeem shares when the shadow price is less than $1.00, the fund's shadow price will decline even further because portfolio losses are spread across a smaller asset base. If enough shares are redeemed, a fund can “break the buck” due, in part, to heavy investor redemptions and the concentration of losses across a shrinking asset base. In times of stress, this reason alone provides an incentive for investors to redeem shares ahead of other investors: early redeemers get $1.00 per share, whereas later redeemers may get less than $1.00 per share even if the fund experiences no further losses. 30 The value of this economic incentive is determined in part by the volatility of the fund's underlying assets, which is, in turn, affected by the volatility of interest rates, the likelihood of default, and the maturities of the underlying assets. Since the risk limiting conditions imposed by rule 2a-7 require funds to hold high quality assets with short maturities, the volatility of the underlying assets is very low (which implies that the corresponding value of this economic incentive is low), except when the fund is under stress. 31 We recognize that, absent the fund breaking the buck, arbitraging fluctuations in a money market fund's shadow price would require some effort and may not be compelling in many cases given the small dollar value that could be captured. See, e.g., Money Market Fund Reform, Investment Company Act Release No. 28807 (June 30, 2009) [74 FR 32688 (July 8, 2009)] (“2009 Proposing Release”), at nn.304-305 and accompanying text (discussing how to arbitrage around price changes from rising interest rates, investors would need to sell money market fund shares for $1.00 and reinvest the proceeds in equivalent short-term debt securities at then-current interest rates). To illustrate the incentive for investors to redeem shares early, consider a money market fund that has one million shares outstanding and holds a portfolio worth exactly $1 million. Assume the fund's stable share price and shadow price are both $1.00. If the fund recognizes a $4,000 loss, the fund's shadow price will fall below $1.00 as follows: EP19JN13.001 If investors redeem one quarter of the fund's shares (250,000 shares), the redeeming shareholders are paid $1.00. Because redeeming shareholders are paid more than the shadow price of the fund, the redemptions further concentrate the loss among the remaining shareholders. In this case, the amount of redemptions is sufficient to cause the fund to “break the buck.” EP19JN13.002 This example shows that if a fund's shadow price falls below $1.00 and the fund experiences redemptions, the remaining investors have an incentive to redeem shares to potentially avoid holding shares worth even less, particularly if the fund re-prices its shares below $1.00. This incentive exists even if investors do not expect the fund to incur further portfolio losses. As discussed in greater detail in the RSFI Study and as we saw during the 2007-2008 financial crisis as further discussed below, money market funds, although generally able to maintain stable share prices, remain subject to credit, interest rate, and liquidity risks, all of which can cause a fund's shadow price to decline below $1.00 and create an incentive for investors to redeem shares ahead of other investors. 32 Although defaults are very low probability events, the resulting losses will be most acute if the default occurs in a position that is greater than 0.5% of the fund's assets, as was the case in the Reserve Primary Fund's investment in Lehman Brothers commercial paper in September 2008. 33 As discussed further in section III.J of this Release, we note that money market funds hold significant numbers of such larger positions. 34 32 See generally RSFI Study, supra note 21, at section 4.A. 33 See generally infra section II.C. 34 FSOC, in formulating possible money market reform recommendations, solicited and received comments from the public (FSOC Comment File, File No. FSOC-2012-0003, available at http://www.regulations.gov/#!docketDetail;D=FSOC-2012-0003 ), some of which have made similar observations about the concentration and size of money market fund holdings. See, e.g., Harvard Business School FSOC Comment Letter, supra note 24 (noting that “prime MMFs mainly invest in money-market instruments issued by large, global banks” and providing information about the size of the holdings of “the 50 largest non-government issuers of money market instruments held by prime MMFs as of May 2012”). 2. Incentives Created by Money Market Funds' Liquidity Needs The incentive for money market fund investors to redeem shares ahead of other investors also can be heightened by liquidity concerns. Money market funds, by definition and like all other mutual funds, offer investors the ability to redeem shares upon demand. A money market fund has three sources of internal liquidity to meet redemption requests: cash on hand, cash from investors purchasing shares, and cash from maturing securities. If these internal sources of liquidity are insufficient to satisfy redemption requests on any particular day, money market funds may be forced to sell portfolio securities to raise additional cash. 35 Since the secondary market for many portfolio securities is not deeply liquid (in part because most money market fund securities are held to maturity), funds may have to sell securities at a discount from their amortized cost value, or even at fire-sale prices, 36 thereby incurring additional losses that may have been avoided if the funds had sufficient liquidity. 37 This, itself, can cause a fund's portfolio to lose value. In addition, redemptions that deplete a fund's most liquid assets can have incremental adverse effects because they leave the fund with fewer liquid assets, making it more difficult to avoid selling less liquid assets, potentially at a discount, to meet further redemption requests. 35 Although the Act permits a money market fund to borrow money from a bank, such loans, assuming the proceeds of which are paid out to meet redemptions, create liabilities that must be reflected in the fund's shadow price, and thus will contribute to the stresses that may force the fund to “break the buck.” See section 18(f) of the Investment Company Act. 36 Money market funds normally meet redemptions by disposing of their more liquid assets, rather than selling a pro rata slice of all their holdings, which typically include less liquid securities such as certificates of deposit, commercial paper, or term repurchase agreements (“repo”). See Harvard Business School FSOC Comment Letter, supra note 24 (“MMFs forced to liquidate commercial paper and bank certificates of deposits are likely to sell them at heavily discounted, `fire sale' prices. This creates run risk because early investor redemptions can be met with the sale of liquid Treasury bills, which generate enough cash to fully pay early redeemers. In contrast, late redemptions force the sale of illiquid assets at discounted prices, which may not generate enough revenue to fully repay late redeemers. Thus, each investor benefits from redeeming earlier than others, setting the stage for runs.”); Jonathan Witmer, Does the Buck Stop Here? A Comparison of Withdrawals from Money Market Mutual Funds with Floating and Constant Share Prices, Bank of Canada Working Paper 2012-25 (Aug. 2012) (“Witmer”), available at http://www.bankofcanada.ca/wp-content/uploads/2012/08/wp2012-25.pdf . “Fire sales” refer to situations when securities deviate from their information-efficient values typically as a result of sale price pressure. For an overview of the theoretical and empirical research on asset “fire sales,” see Andrei Shleifer & Robert Vishny, Fire Sales in Finance and Macroeconomics, 25 Journal of Economic Perspectives, Winter 2011, at 29-48 (“ Fire Sales” ). 37 The RSFI Study examined whether money market funds are more resilient to redemptions following the 2010 reforms and notes that, “As expected, the results show that funds with a 30 percent [weekly liquid asset requirement] are more resilient to both portfolio losses and investor redemptions” than those funds without a 30 percent weekly liquid asset requirement. RSFI Study, supra note 21, at 37. 3. Incentives Created by Imperfect Transparency, Including Sponsor Support Lack of investor understanding and complete transparency concerning the risks posed by particular money market funds can exacerbate the concerns discussed above. If investors do not know a fund's shadow price and/or its underlying portfolio holdings (or if previous disclosures of this information are no longer accurate), investors may not be able to fully understand the degree of risk in the underlying portfolio. 38 In such an environment, a default of a large-scale commercial paper issuer, such as a bank holding company, could accelerate redemption activity across many funds because investors may not know which funds (if any) hold defaulted securities and initiate redemptions to avoid potential rather than actual losses in a “flight to transparency.” 39 Since many money market funds hold securities from the same issuer, investors may respond to a lack of transparency about specific fund holdings by redeeming assets from funds that are believed to be holding highly correlated positions. 40 38 See, e.g., RSFI Study, supra note 21, at 31 (stating that although disclosures on Form N-MFP have improved fund transparency, “it must be remembered that funds file the form on a monthly basis with no interim updates,” and that “[t]he Commission also makes the information public with a 60-day lag, which may cause it to be stale”); Comment Letter of the Presidents of the 12 Federal Reserve Banks (Feb. 12, 2013) (available in File No. FSOC-2012-0003) (“Federal Reserve Bank Presidents FSOC Comment Letter”) (stating that “[e]ven more frequent and timely disclosure may be warranted to increase the transparency of MMFs” and noting that “[d]uring times of stress, [. . .] uncertainty regarding portfolio composition could heighten investors' incentives to redeem in between reporting periods [of money market funds' portfolio information], as they will not be able to determine if their fund is exposed to certain stressed assets”); see also infra section III.H where we request comment on whether we should require money market funds to file Form N-MFP more frequently. 39 See Nicola Gennaioli, Andrei Shleifer & Robert Vishny, Neglected Risks, Financial Innovation, and Financial Fragility, 104 J. Fin. Econ. 453 (2012) (“A small piece of news that brings to investors' minds the previously unattended risks catches them by surprise and causes them to drastically revise their valuations of new securities and to sell them. . . . When investors realize that the new securities are false substitutes for the traditional ones, they fly to safety, dumping these securities on the market and buying the truly safe ones.”). 40 See infra notes 65-67 and accompanying text. Based on Form N-MFP data as of February 28, 2013, there were 27 different issuers whose securities were held by more than 100 prime money market funds. Money market funds' sponsors on a number of occasions have voluntarily chosen to provide financial support for their money market funds 41 for various reasons, including to keep a fund from re-pricing below its stable value, but also, for example, to protect the sponsors' reputations or brands. Considering that instances of sponsor support are not required to be disclosed outside of financial statements, and thus were not particularly transparent to investors, voluntary sponsor support has played a role in helping some money market funds maintain a stable value and, in turn, may have lessened investors' perception of the risk in money market funds. 42 Even those investors who were aware of sponsor support could not be assured it would be available in the future. 43 Instances of discretionary sponsor support were relatively common during the financial crisis. For example, during the period from September 16, 2008 to October 1, 2008, a number of money market fund sponsors purchased large amounts of portfolio securities from their money market funds or provided capital support to the funds (or received staff no-action assurances in order to provide support). 44 Commission staff provided no-action assurances to 100 money market funds in 18 different fund groups so that the fund groups could enter into such arrangements. 45 Although a number of advisers to money market funds obtained staff no-action assurances in order to provide sponsor support, several did not subsequently provide the support because it was no longer necessary. 46 41 Rule 17a-9 currently allows for discretionary support of money market funds by their sponsors and other affiliates. 42 See, e.g., Comment Letter of Occupy the SEC (Feb. 15, 2013) (available in File No. FSOC-2012-0003) (“Occupy the SEC FSOC Comment Letter”) (“The current strategies for maintaining a stable NAV—rounding and discretionary fund sponsor support—both serve to conceal important market signals of mounting problems within the fund's portfolio.”). See also Federal Reserve Bank Presidents FSOC Comment Letter, supra note 38 (warning that “[g]iven the perception of stability that discretionary support creates, this practice may attract investors that are not willing to accept the underlying risks in MMFs and who therefore are more prone to run in times of potential stress.”) 43 See, e.g., U.S. Securities and Exchange Commission, Roundtable on Money Market Funds and Systemic Risk, unofficial transcript (May 10, 2011), available at http://www.sec.gov/spotlight/mmf-risk/mmf-risk-transcript-051011.htm (“Roundtable Transcript”) (Bill Stouten, Thrivent Financial) (“I think the primary factor that makes money funds vulnerable to runs is the marketing of the stable NAV. And I think the record of money market funds and maintaining the stable NAV has largely been the result of periodic voluntary sponsor support. I think sophisticated investors that understand this and doubt the willingness or ability of the sponsor to make that support know that they need to pull their money out before a declining asset is sold.”); (Lance Pan, Capital Advisors Group) (“over the last 30 or 40 years, [investors] have relied on the perception that even though there is risk in money market funds, that risk is owned somehow implicitly by the fund sponsors. So once they perceive that they are not able to get that additional assurance, I believe that was one probable cause of the run”); see also Federal Reserve Bank Presidents FSOC Comment Letter, supra note 38 (stating that “[t]hough [sponsor support] creates a perception of stability, it may not truly provide stability in times of stress. Indeed, events of 2008 showed that sponsor support cannot always be relied upon.”); infra section III.F.1. 44 See Steffanie A. Brady et al., The Stability of Prime Money Market Mutual Funds: Sponsor Support from 2007 to 2011, Federal Reserve Bank of Boston Risk and Policy Analysis Unit Working Paper No. 12-3 (Aug. 13, 2012), available at http://www.bos.frb.org/bankinfo/qau/wp/2012/qau1203.pdf . Staff in the Federal Reserve Bank of Boston's Risk and Policy Analysis Unit examine 341 money market funds and find that 78 of the funds disclosed sponsor support on Form N-CSR between 2007 and 2011 (some multiple times). This analysis excludes Capital Support Agreements and/or Letters of Credit that were not drawn upon. Large sponsor support (in aggregate) representing over 0.5% of assets under management occurred in 31 money market funds, and the primary reasons disclosed for such support include losses on Lehman Brothers, AIG, and Morgan Stanley securities. Moody's Investors Service Special Comment, Sponsor Support Key to Money Market Funds (Aug. 9, 2010) (“Moody's Sponsor Support Report”), reported that 62 money market funds required sponsor support during 2007-2008. 45 Our staff estimated that during the period from August 2007 to December 31, 2008, almost 20% of all money market funds received some support (or staff no-action assurances concerning support) from their money managers or their affiliates. We note that not all of such support required no-action assurances from Commission staff (for example, fund affiliates were able to purchase defaulted Lehman Brothers securities from fund portfolios under rule 17a-9 under the Investment Company Act without the need for any no-action assurances). See, e.g., http://www.sec.gov/divisions/investment/im-noaction.shtml#money . 46 See, e.g., Comment Letter of The Dreyfus Corporation (Aug. 7, 2012) (available in File No. 4-619) (stating that no-action relief to provide sponsor support “was sought by many money funds as a precautionary measure”). The 2007-2008 financial crisis is not the only instance in which some money market funds have come under strain, although it is unique in the amount of money market funds that requested or received sponsor support. 47 Interest rate changes, issuer defaults, and credit rating downgrades can lead to significant valuation losses for individual funds. Table 1 documents that since 1989, in addition to the 2007-2008 financial crisis, 11 events were deemed to have been sufficiently negative that some fund sponsors chose to provide support or to seek staff no-action assurances in order to provide support. 48 The table indicates that these events potentially affected 158 different money market funds. This finding is consistent with estimates provided by Moody's that at least 145 U.S. money market funds received sponsor support to maintain either price stability or share liquidity before 2007. 49 Note that although these events affected money market funds and their sponsors, there is no evidence that these events caused systemic problems, most likely because the events were isolated either to a single entity or class of security. Table 1 is consistent with the interpretation that outside a crisis period, these events did not propagate risk more broadly to the rest of the money market fund industry. However, a caveat that prevents making a strong inference about the impact of sponsor support on investor behavior from Table 1 is that sponsor support generally was not immediately disclosed, and was not required to be disclosed by the Commission, and so investors may have been unaware that their money market fund had come under stress. 50 47 See Moody's Sponsor Support Report, supra note 44. 48 The table does not comprehensively describe every instance of sponsor support of a money market fund or request for no-action assurances to provide support, but rather summarizes some of the more notable instances of sponsor support. 49 See Moody's Sponsor Support Report, supra note 44, noting in particular 13 funds requiring support in 1990 due to credit defaults or deterioration at MNC Financial, Mortgage & Realty Trust, and Drexel Burnham; 79 funds requiring support in 1994 due to the Orange County bankruptcy and holdings of certain floating rate securities when interest rates increased; and 25 funds requiring support in 1999 after the credit of certain General American Life Insurance securities deteriorated. 50 Note that we are proposing changes to our rules and forms to require more comprehensive and timely disclosure of such sponsor support. See infra sections III.F.1 and III.G. 51 The estimated total numbers of money market funds are from Table 38 of the Investment Company Institute's 2013 Fact Book, available at http://www.ici.org/pdf/2013_factbook.pdf . The numbers of money market funds are as of the end of the relevant year, and not necessarily as of the date that any particular money market fund received support (or whose sponsor received no-action assurances in order to provide support). 52 See Jack Lowenstein, Should the Rating Agencies be Downgraded?, Euromoney (Feb. 1, 1990) (noting that Integrated Resources had been rated A-2 by Standard & Poor's until two days before default); Jonathan R. Laing, Never Say Never—Or, How Safe Is Your Money-Market Fund?, Barron's (Mar. 26, 1990) (“Laing”), at 6; Randall W. Forsyth, Portfolio Analysis of Selected Fixed-Income Funds—Muni Money-Fund Risks, Barron's (July 2, 1990) (“Forsyth”), at 33; Georgette Jasen, SEC Is Accelerating Its Inspections of Money Funds, Wall St. J. (Dec. 4, 1990) (“Jasen”), at C1. One $630 million money market fund held a 3.5% position in Integrated Resources when it defaulted. See Linda Sandler, Cloud Cast on `Junk' IOUs By Integrated Resources, Wall St. J. (June 28, 1989). 53 See Laing, supra note 52; Forsyth, supra note 52; Jasen, supra note 52. 54 See Revisions to Rules Regulating Money Market Funds, Investment Company Act Release No. 19959 (Dec. 17, 1993) [58 FR 68585 (Dec. 28, 1993)] at n.12 (“1993 Proposing Release”). See also Leslie Eaton, Another Close Call—An Adviser Bails Out Its Money Fund, Barron's (Mar. 11, 1991), at 42 (noting that Mercantile Bancorp bought out $28 million of MNC Financial notes from its affiliated money market fund, which had accounted for 3% of the money market fund's assets). Table 1 Year Number of money market funds from 2013 ICI mutual fund fact book 51 Estimated number of money market funds supported by affiliate or for which no-action assurances obtained Event 1989 673 4 Default of Integrated Resources commercial paper (rated A-2 by Standard & Poor's until shortly prior to default). 52 1990 741 11 Default of Mortgage & Realty Trust commercial paper (rated A-2 by Standard & Poor's until shortly prior to default). 53 1990 741 10 MNC Financial Corp. commercial paper downgraded from being a second tier security. 54 1991 820 10 Mutual Benefit Life Insurance (“MBLI”) seized by state insurance regulators, causing it to fail to honor put obligations after those holding securities with these features put the obligations en masse to MBLI. 55 1994 963 40 Rising interest rates damaged the value of certain adjustable rate securities held by money market funds. 56 1994 963 43 Orange County, California bankruptcy. 57 1997 1,103 3 Mercury Finance Corp. defaults on its commercial paper. 1999 1,045 25 Credit rating downgrade of General American Life Insurance Co. triggered a wave of demands for repayment on its funding contracts, leading to liquidity problems and causing it to be placed under administrative supervision by state insurance regulators. 58 2001 1,015 6 Pacific Gas & Electric Co. and Southern California Edison Co. commercial paper went from being first tier securities to defaulting in a 2-week period. 59 2007 805 51 Investments in SIVs. 2008 783 109 Investments in Lehman Brothers, America International Group, Inc. (“AIG”) and other financial sector debt securities. 2010 652 3 British Petroleum Gulf oil spill affects price of BP debt securities held by some money market funds. 2011 632 3 Investments in Eksportfinans, which was downgraded from being a first tier security to junk-bond status. It also is important to note that, as discussed above, fund sponsors may provide financial support for a number of different reasons. Sponsors may support funds to protect their reputations and their brands or the credit rating of the fund. 60 Support also may be used to keep a fund from breaking a buck or to increase a fund's shadow price if its sponsor believes investors avoid funds that may have low shadow prices. We note that the fact that no-action assurances were obtained or sponsor support was provided does not necessarily mean that a money market fund would have broken the buck without such support or assurances. 55 At the time of its seizure, MBLI debt was rated in the highest short-term rating category by Standard & Poor's. See 1993 Proposing Release, supra note 54, at n.28 and accompanying text. The money market fund sponsors either repurchased the MBLI-backed instruments from the funds at their amortized cost or obtained a replacement guarantor in order to prevent shareholder losses. Id. 56 See Money Market Fund Prospectuses, Investment Company Act Release No. 21216 (July 19, 1995) [60 FR 38454, (July 26, 1995)], at n.17; Investment Company Institute, Report of the Money Market Working Group (Mar. 17, 2009), available at http://www.ici.org/pdf/ppr_09_mmwg.pdf (“ICI 2009 Report”), at 177; Leslie Wayne, Investors Lose Money in `Safe' Fund, N.Y. Times, Sept. 28, 1994; Leslie Eaton, New Caution About Money Market Funds, N.Y. Times, Sept. 29, 1994. 57 See ICI 2009 Report, supra note 56, at 178; Tom Petruno, Orange County in Bankruptcy: Investors Weigh Their Options: Muni Bond Values Slump but Few Trade at Fire-Sale Prices, L.A. Times, Dec. 8, 1994. 58 See Sandra Ward, Money Good? How some fund managers sacrificed safety for yield, Barron's (Aug. 23, 1999), at F3. 59 See Aaron Lucchetti & Theo Francis, Parents Take on Funds' Risks Tied to Utilities, Wall St. J. (Feb. 28, 2001), at C1; Lewis Braham, Commentary: Money Market Funds Enter the Danger Zone, Businessweek (Apr. 8, 2001). 60 See, e.g., Marcin Kacperczyk & Philipp Schnabl, How Safe are Money Market Funds?, 128 Q. J. Econ. (forthcoming Aug. 2013) (“Kacperczyk & Schnabl”) (“. . . fund sponsors with more non-money market fund business expect to incur large costs if their money market funds fail. Such costs are typically reputational in nature, in that an individual fund's default generates negative spillovers to the fund's sponsor['s] other business. In practice, these costs could be outflows from other mutual funds managed by the same sponsor or a loss of business in the sponsor's commercial banking, investment banking, or insurance operations.”); Patrick E. McCabe, The Cross Section of Money Market Fund Risks and Financial Crises, Federal Reserve Board Finance and Economic Discussion Series Paper No. 2010-51 (2010) (“Cross Section”) (“Nothing required these sponsors to provide support, but because allowing a fund to break the buck would have been destructive to a sponsor's reputation and franchise, sponsors backstopped their funds voluntarily.”); Value Line Posts Loss for 1st Period, Cites Charge of $7.5 Million, Wall St. J. (Sept. 18, 1989) (“In discussing the charge in its fiscal 1989 annual report [for buying out defaulted commercial paper from its money market fund], Value Line said it purchased the fund's holdings in order to protect its reputation and the continuing income from its investment advisory and money management business.”); Comment Letter of James J. Angel (Feb. 6, 2013) (available in File No. FSOC-2012-0003) (“Angel FSOC Comment Letter”) (“Sponsors have a strong commercial incentive to stand behind their funds. Breaking the buck means the immediate and catastrophic end of the sponsor's entire asset management business.”). Finally, the government assistance provided to money market funds during 2007-2008 financial crisis, discussed in more detail below, may have contributed to investors' perceptions that the risk of loss in money market funds is low. 61 If investors perceive money market funds as having an implicit government guarantee in times of crisis, any potential instability of a money market fund's NAV could be mis-estimated. Investors will form expectations about the likelihood of a potential intervention to support money market funds, either by the U.S. government or fund sponsors. To the extent these forecasts are based on inaccurate information, investor estimates of potential losses will be biased. 61 See, e.g, Marcin Kacperczyk & Philipp Schnabl, Money Market Funds: How to Avoid Breaking the Buck, in Regulating Wall St: The Dodd-Frank Act and the New Architecture of Global Finance (Viral V. Acharya, et al., eds., 2011), at 313 (“Given that money market funds provide both payment services to investors and refinancing to financial intermediaries, there is a strong case for the government to support money market funds during a financial crisis by guaranteeing the value of money market fund investments. As a result of such support, money market funds have an ex ante incentive to take on excessive risk, similarly to other financial institutions with explicit or implicit government guarantees . . . after the [government] guarantees were provided in September 2008 [to money market funds], most investors will expect similar guarantees during future financial crises. . . .”). But see Comment Letter of Fidelity (Apr. 26, 2012) (available in File No. 4-619) (“Fidelity April 2012 PWG Comment Letter”) (citing a survey of Fidelity's retail customers in which 75% of responding customers did not believe that money market funds are guaranteed by the government and 25% either believed that they were guaranteed or were not sure whether they were guaranteed). We note that investor belief that money market funds are not guaranteed by the government does not necessarily mean that investors do not believe that the government will support money market funds if there is another run on money market funds. 4. Incentives Created by Money Market Funds Investors' Desire To Avoid Loss In addition to the incentives described above, other characteristics of money market funds create incentives to redeem in times of stress. Investors in money market funds have varying investment goals and tolerances for risk. Many investors use money market funds for principal preservation and as a cash management tool, and, consequently, these funds can attract investors who are unable or unwilling to tolerate even small losses. These investors may seek to minimize possible losses, even at the cost of forgoing higher returns. 62 Such investors may be very loss averse for many reasons, including general risk tolerance, legal or investment restrictions, or short-term cash needs. 63 These overarching considerations may create incentives for money market investors to redeem and would be expected to persist, even if valuation and pricing incentives were addressed. 62 See, e.g., Comment Letter of Investment Company Institute (Apr. 19, 2012) (available in File No. 4-619) (“ICI Apr 2012 PWG Comment Letter”) (enclosing a survey commissioned by the Investment Company Institute and conducted by Treasury Strategies, Inc. finding, among other things. that 94% of respondents rated safety of principal as an “extremely important” factor in their money market fund investment decision and 64% ranked safety of principal as the “primary driver” of their money market fund investment). 63 See, e.g., Comment Letter of County Commissioners Assoc. of Ohio (Dec. 21, 2012) (available in File No. FSOC-2012-0003) (“County governments in Ohio operate under legal constraints or other policies that limit them from investing in instruments without a stable value.”). The desire to avoid loss may cause investors to redeem from money market funds in times of stress in a “flight to quality.” For example, as discussed in the RSFI Study, one explanation for the heavy redemptions from prime money market funds and purchases in government money market fund shares during the financial crisis may be a flight to quality, given that most of the assets held by government money market funds have a lower default risk than the assets of prime money market funds. 64 64 One study documented that investors redirected assets from prime money market funds into government money market funds during September 2008. See Russ Wermers et al., Runs on Money Market Funds (Jan. 2, 2013), available at http://www.rhsmith.umd.edu/cfp/pdfs_docs/papers/WermersMoneyFundRuns.pdf (“Wermers Study”). Another study found that redemption activity in money market funds during the financial crisis was higher for riskier money market funds. See Cross Section, supra note 60. 5. Effects on Other Money Market Funds, Investors, and the Short-Term Financing Markets The analysis above generally describes how potential losses may create shareholder incentives to redeem at a specific money market fund. We now discuss how stress at one money market fund can be positively correlated across funds in at least two ways. Some market observers have noted that if a money market fund suffers a loss on one of its portfolio securities—whether because of a deterioration in credit quality, for example, or because the fund sold the security at a discount to its amortized-cost value—other money market funds holding the same security may have to reflect the resultant discounts in their shadow prices. 65 Any resulting decline in the shadow prices of other funds could, in turn, lead to a contagion effect that could spread even further. 66 For example, a number of commenters have observed that many money market fund holdings tend to be highly correlated, making it more likely that multiple money market funds will experience contemporaneous decreases in share prices. 67 65 See generally Douglas W. Diamond & Raghuram G. Rajan, Fear of Fire Sales, Illiquidity Seeking, and Credit Freezes, 126 Q. J. Econ. 557 (May 2011); Fire Sales, supra note 36; Markus Brunnermeier et al., The Fundamental Principles of Financial Regulation, in Geneva Reports on the World Economy 11 (2009). 66 For example, supra Table 1, which identifies certain instances in which money market fund sponsors supported their funds or sought staff no-action assurances to do so, tends to show that correlated holdings across funds resulted in multiple funds experiencing losses that appeared to motivate sponsors to provide support or seek staff no-action assurances in order to provide support. 67 See, e.g., Comment Letter of Better Markets, Inc. (Feb. 15, 2013) (available in File No. FSOC-2012-0003) (“Better Markets FSOC Comment Letter”) (agreeing with FSOC's analysis and stating that “MMFs tend to have similar exposures due to limits on the nature of permitted investments. As a result, losses creating instability and a crisis of confidence in one MMF are likely to affect other MMFs at the same time.”); Comment Letter of Robert Comment (Dec. 31. 2012) (available in File No. FSOC-2012-0003) (“Robert Comment FSOC Comment Letter”) (discussing correlation in money market funds' portfolios and stating, among other things, that “now that bank‐issued money market instruments have come to comprise half the holdings of the typical prime fund, the SEC should acknowledge correlated credit risk by requiring that prime funds practice sector diversification (in addition to issuer diversification)”); Occupy the SEC FSOC Comment Letter, supra note 42 (discussing concentration of risk across money market funds). As discussed above, in times of stress if investors do not wish to be exposed to a distressed issuer (or correlated issuers) but do not know which money market funds own these distressed securities at any given time, investors may redeem from any money market funds that could own the security ( e.g., redeeming from all prime funds). 68 A fund that did not own the security and was not otherwise under stress could nonetheless experience heavy redemptions which, as discussed above, could themselves ultimately cause the fund to experience losses if it does not have adequate liquidity. 68 See, e.g., Wermers Study, supra note 64 (based on an empirical analysis of data from the 2008 run on money market funds, finding that, during 2008, “[f]unds that cater to institutional investors, which are the most sophisticated and informed investors, were hardest hit,” and that “investor flows from money market funds seem to have been driven both by strategic externalities . . . and information.”). As was experienced during the financial crisis, the potential for liquidity-induced contagion may have negative effects on investors and the markets for short-term financing of corporations, banks, and governments. This is in large part because of the significance of money market funds' role in such short-term financing markets. 69 Indeed, money market funds had experienced steady growth before the financial crisis, driven in part by growth in the size of institutional cash pools, 70 which grew from under $100 billion in 1990 to almost $4 trillion just before the 2008 financial crisis. 71 Money market funds' suitability for cash management operations also has made them popular among corporate treasurers, municipalities, and other institutional investors, some of whom rely on money market funds for their cash management operations because the funds provide diversified cash management more efficiently due both to the scale of their operations and their expertise. 72 For example, according to one survey, approximately 19% of organizations' short-term investments were allocated to money market funds (and, according to this observer, this figure is down from almost 40% in 2008 due in part to the reallocation of cash investments to bank deposits following temporary unlimited Federal Deposit Insurance Corporation deposit insurance for non-interest bearing bank transaction accounts, which recently expired). 73 69 See infra Panels A, B, and C in section III.E for statistics on the types and percentages of outstanding short-term debt obligations held by money market funds. 70 See Zoltan Pozsar, Institutional Cash Pools and the Triffin Dilemma of the U.S. Banking System, IMF Working Paper 11/190 (Aug. 2011) (“Pozsar”); Gary Gorton & Andrew Metrick, Securitized Banking and the Run on Repo, 104 J. Fin. Econ. 425 (2012) (“Gorton & Metrick”); Jeremy C. Stein, Monetary Policy as Financial Stability Regulation, 127 Q. J. Econ. 57 (2012); Nicola Gennaioli, Andrei Shleifer & Robert W. Vishny, A Model of Shadow Banking, J. Fin. (forthcoming 2013). The Pozsar paper defines institutional cash pools as “large, centrally managed, short-term cash balances of global non-financial corporations and institutional investors such as asset managers, securities lenders and pension funds.” Pozsar, at 4. 71 See Pozsar, supra note 70, at 5-6. These institutional cash pools can come from corporations, bank trust departments, securities lending operations of brokerage firms, state and local governments, hedge funds, and other private funds. The rise in institutional cash pools increased demand for investments that were considered to have a relatively low risk of loss, including, in addition to money market funds, Treasury bonds, insured deposit accounts, repurchase agreements, and asset-backed commercial paper. See Ben S. Bernanke, Carol Bertaut, Laurie Pounder DeMarco & Steven Kamin, International Capital Flows and the Returns to Safe Assets in the United States, 2003-2007, Board of Governors of the Federal Reserve System International Finance Discussion Paper No. 1014 (Feb. 2011); Pozsar, supra note 70; Gorton & Metrick, supra note 70; Daniel M. Covitz, Nellie Liang & Gustavo A. Suarez, The Evolution of a Financial Crisis: Collapse of the Asset-Backed Commercial Paper Market, J. Fin . (forthcoming 2013) (“Covitz”). The incentive among these cash pools to search for alternate “safe” investments was only heightened by factors such as limits on deposit insurance coverage and historical bans on banks paying interest on institutional demand deposit accounts, which limited the utility of deposit accounts for large pools of cash. See Pozsar, supra note 70; Gary Gorton & Andrew Metrick, Regulating the Shadow Banking System, Brookings Papers on Economic Activity (Fall 2010), at 262-263 (“Gorton Shadow Banking”). 72 See, e.g., Roundtable Transcript, supra note 43 (Travis Barker, Institutional Money Market Funds Association) (“[money market funds are] there to provide institutional investors with greater diversification than they could otherwise achieve”); (Lance Pan, Capital Advisors Group) (noting diversification benefits of money market funds and investors' need for a substitute to bank products to mitigate counterparty risk); (Kathryn L. Hewitt, Government Finance Officers Association) (“Most of us don't have the time, the energy, or the resources at our fingertips to analyze the credit quality of every security ourselves. So we're in essence, by going into a pooled fund, hiring that expertise for us . . . it gives us diversification, it gives us immediate cash management needs where we can move money into and out of it, and it satisfies much of our operating cash investment opportunities.”); (Brian Reid, Investment Company Institute) (“there's a very clear stated demand out there on the part of investors for a non-bank product that creates a pooled investment in short-term assets . . . banks can't satisfy this because an undiversified exposure to a single bank is considered to be far riskier. . . .”); (Carol A. DeNale, CVS Caremark) (“I think that it would be very small investment [in] deposits in banks. I don't think there's—you know, the ratings of some of the banks would make me nervous, also; [sic] they're not guaranteed. I'm not going to put a $20 million investment in some banks.”). 73 See 2012 Association for Financial Professionals Liquidity Survey, at 15, available at http://www.afponline.org/liquidity (subscription required) (“2012 AFP Liquidity Survey”). The size of this allocation to money market funds is down substantially from prior years. For example, prior AFP Liquidity Surveys show higher allocations of organizations' short-term investments to money market funds: Almost 40% in the 2008 survey, approximately 25% in the 2009 and 2010 surveys, and almost 30% in the 2011 survey. This shift has largely reflected a re-allocation of cash investments to bank deposits, which rose from representing 25% of organizations' short-term investment allocations in the 2008 Association for Financial Professionals Liquidity Survey, available at http://www.afponline.org/pub/pdf/2008_Liquidity_Survey.pdf (“2008 AFP Liquidity Survey”), to 51% of organizations' short-term investment allocations in the 2012 survey. The 2012 survey notes that some of this shift has been driven by the temporary unlimited FDIC deposit insurance coverage for non-interest bearing bank transaction accounts (which expired at the end of 2012) and the above-market rate that these bank accounts are able to offer in the low interest rate environment through earnings credits. See 2012 AFP Liquidity Survey, this note. As of August 14, 2012, approximately 66% of money market fund assets were held in money market funds or share classes intended to be sold to institutional investors according to iMoneyNet data. All of the AFP Liquidity Surveys are available at http://www.afponline.org . Money market funds' size and significance in the short-term markets, together with their features that can create an incentive to redeem as discussed above, have led to concerns that money market funds may contribute to systemic risk. Heavy redemptions from money market funds during periods of financial stress can remove liquidity from the financial system, potentially disrupting the secondary market. Issuers may have difficulty obtaining capital in the short-term markets during these periods because money market funds are focused on meeting redemption requests through internal liquidity generated either from maturing securities or cash from subscriptions, and thus may be purchasing fewer short-term debt obligations. 74 To the extent that multiple money market funds experience heavy redemptions, the negative effects on the short-term markets can be magnified. Money market funds' experience during the 2007-2008 financial crisis illustrates the impact of heavy redemptions, as we discuss in more detail below. 74 See supra text preceding and accompanying n.35. Although money market funds also can build liquidity internally by retaining (rather than investing) cash from investors purchasing shares, this is not likely to be a material source of liquidity for a distressed money market fund experiencing heavy redemptions. Heavy redemptions in money market funds may disproportionately affect slow-moving shareholders because, as discussed further below, redemption data from the 2007-2008 financial crisis show that some institutional investors are likely to redeem from distressed money market funds more quickly than other investors and to redeem a greater percentage of their prime fund holdings. 75 Slower-to-redeem shareholders may be harmed because, as discussed above, redemptions at a money market fund can concentrate existing losses in the fund or create new losses if the fund must sell assets at a discount. In both cases, redemptions leave the fund's portfolio more likely to lose value, to the detriment of slower-to-redeem investors. 76 Retail investors—who tend to be slower moving—also could be harmed if market stress begins at an institutional money market fund and spreads to other funds, including funds composed solely or primarily of retail investors. 77 75 This likely is because some institutional investors generally have more capital at stake, sophisticated tools, and professional staffs to monitor risk. See 2009 Proposing Release, supra note 31, at nn.46-48 and 178 and accompanying text. 76 See, e.g., RSFI Study, supra note 21, at 10 (“Investor redemptions during the 2008 financial crisis, particularly after Lehman's failure, were heaviest in institutional share classes of prime money market funds, which typically hold securities that are illiquid relative to government funds. It is possible that sophisticated investors took advantage of the opportunity to redeem shares to avoid losses, leaving less sophisticated investors (if co-mingled) to bear the losses.”). 77 As discussed further below, retail money market funds experienced a lower level of redemptions in 2008 than institutional money market funds, although the full predictive power of this empirical evidence is tempered by the introduction of the Treasury Department's temporary guarantee program for money market funds, which may have prevented heavier shareholder redemptions among generally slower moving retail investors. See infra n.91. C. The 2007-2008 Financial Crisis There are many possible explanations for the redemptions from money market funds during the 2007-2008 financial crisis. 78 Regardless of the cause (or causes), money market funds' experience in the 2007-2008 financial crisis demonstrates the harm that can result from such rapid heavy redemptions in money market funds. 79 As explained in the RSFI study, on September 16, 2008, the day after Lehman Brothers Holdings Inc. announced its bankruptcy, The Reserve Fund announced that as of that afternoon, its Primary Fund—which held a $785 million (or 1.2% of the fund's assets) position in Lehman Brothers commercial paper—would “break the buck” and price its securities at $0.97 per share. 80 At the same time, there was turbulence in the market for financial sector securities as a result of the bankruptcy of Lehman Brothers and the near failure of American International Group (“AIG”), whose commercial paper was held by many prime money market funds. In addition to Lehman Brothers and AIG, there were other stresses in the market as well, as discussed in greater detail in the RSFI Study. 81 78 See generally RSFI Study, supra note 21, at section 3. 79 See generally RSFI Study, supra note 21, at section 3. See also 2009 Proposing Release supra note 31, at section I.D; infra section II.D.2 (discussing the financial distress in 2011 caused by the Eurozone sovereign debt crisis and U.S. debt ceiling impasse and money market funds' experience during that time). 80 See also 2009 Proposing Release, supra note 31, at n.44 and accompanying text. We note that the Reserve Primary Fund's assets have been returned to shareholders in several distributions made over a number of years. We understand that assets returned constitute approximately 99% of the fund's assets as of the close of business on September 15, 2008, including the income earned during the liquidation period. Any final distribution to former Reserve Primary Fund shareholders will not occur until the litigation surrounding the fund is complete. See Consolidated Class Action Complaint, In Re The Reserve Primary Fund Sec. & Derivative Class Action Litig., No. 08-CV-8060-PGG (S.D.N.Y. Jan. 5, 2010). 81 See generally RSFI Study, supra note 21, at section 3. Redemptions in the Primary Fund were followed by redemptions from other Reserve money market funds. 82 Prime institutional money market funds more generally began experiencing heavy redemptions. 83 During the week of September 15, 2008, investors withdrew approximately $300 billion from prime money market funds or 14% of the assets in those funds. 84 During that time, fearing further redemptions, money market fund managers began to retain cash rather than invest in commercial paper, certificates of deposit, or other short-term instruments. 85 Commenters have stated that money market funds were not the only investors in the short-term financing markets that reduced or halted investment in commercial paper and other riskier short-term debt securities during the 2008 financial crisis. 86 Short-term financing markets froze, impairing access to credit, and those who were still able to access short-term credit often did so only at overnight maturities. 87 82 See 2009 Proposing Release, supra note 31, at Section I.D. 83 See RSFI Study, supra note 21, at section 3. 84 See INVESTMENT COMPANY INSTITUTE, REPORT OF THE MONEY MARKET WORKING GROUP, at 62 (Mar. 17, 2009), available at http://www.ici.org/pdf/ppr_09_mmwg.pdf (“ICI REPORT”) (analyzing data from iMoneyNet). The latter figure describes aggregate redemptions from all prime money market funds. Some money market funds had redemptions well in excess of 14% of their assets. Based on iMoneyNet data (and excluding the Reserve Primary Fund), the maximum weekly redemptions from a money market fund during the 2008 financial crisis was over 64% of the fund's assets. 85 See Philip Swagel, “The Financial Crisis: An Inside View,” Brookings Papers on Economic Activity, at 31 (Spring 2009) (conference draft), available at http://www.brookings.edu/economics/bpea/~/media/Files/Programs/ES/BPEA/2009_spring_bpea_papers/2009_spring_bpea_swagel.pdf ; Christopher Condon & Bryan Keogh, Funds' Flight from Commercial Paper Forced Fed Move, BLOOMBERG, Oct. 7, 2008, available at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=a5hvnKFCC_pQ . 86 See, e.g., ICI Jan. 24 FSOC Comment Letter, supra note 25. 87 See 2009 Proposing Release, supra note 31, at nn.51-53 & 65-68 and accompanying text (citing to minutes of the Federal Open Market Committee, news articles, Federal Reserve Board data on commercial paper spreads over Treasury bills, and books and academic articles on the financial crisis). Figure 1, below, provides context for the redemptions that occurred during the financial crisis. Specifically, it shows daily total net assets over time, where the vertical line indicates the date that Lehman Brothers filed for bankruptcy, September 15, 2008. Investor redemptions during the 2008 financial crisis, particularly after Lehman's failure, were heaviest in institutional share classes of prime money market funds, which typically hold securities that are less liquid and of lower credit quality than those typically held by government money market funds. The figure shows that institutional share classes of government money market funds, which include Treasury and government funds, experienced heavy inflows. 88 The aggregate level of retail investor redemption activity, in contrast, was not particularly high during September and October 2008, as shown in Figure 1. 89 88 As discussed in section III.A.3, government money market funds historically have faced different redemption pressures in times of stress and have different risk characteristics than other money market funds because of their unique portfolio composition, which typically has lower credit default risk and greater liquidity than non-government portfolio securities typically held by money market funds. 89 We understand that iMoneyNet differentiates retail and institutional money market funds based on factors such as minimum initial investment amount and how the fund provider self-categorizes the fund. EP19JN13.003 On September 19, 2008, the U.S. Department of the Treasury (“Treasury”) announced a temporary guarantee program (“Temporary Guarantee Program”), which would use the $50 billion Exchange Stabilization Fund to support more than $3 trillion in shares of money market funds, and the Board of Governors of the Federal Reserve System authorized the temporary extension of credit to banks to finance their purchase of high-quality asset-backed commercial paper from money market funds. 90 These programs successfully slowed redemptions in prime money market funds and provided additional liquidity to money market funds. The disruptions to the short-term markets detailed above could have continued for a longer period of time but for these programs. 91 90 See 2009 Proposing Release, supra note 31, at nn.55-59 and accompanying text for a fuller description of the various forms of governmental assistance provided to money market funds during this time. 91 Treasury used the $50 billion Exchange Stabilization Fund to fund the Temporary Guarantee Program, but legislation has since been enacted prohibiting Treasury from using this fund again for guarantee programs for money market funds. See Emergency Economic Stabilization Act of 2008 § 131(b), 12 U.S.C. § 5236 (2008). The $50 billion Exchange Stabilization Fund was never drawn upon by money market funds under this program and the Temporary Guarantee Program expired on September 18, 2009. The Federal Reserve Board also established the Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility (“AMLF”), through which credit was extended to U.S. banks and bank holding companies to finance purchases of high-quality asset-backed commercial paper (“ABCP”) from money market funds, and it may have mitigated fire sales to meet redemptions requests. See Burcu Duygan-Bump et al., How Effective Were the Federal Reserve Emergency Liquidity Facilities? Evidence from the Asset-Backed Commercial Paper Money Market Mutual Fund Liquidity Facility, 68 J. Fin. 715 (Apr. 2013) (“Our results suggest that the AMLF provided an important source of liquidity to MMMFs and the ABCP market, as it helped to stabilize MMMF asset flows and to reduce ABCP yields.”). The AMLF expired on February 1, 2010. Given the significant decline in money market investments in ABCP since 2008, reopening the AMLF would provide little benefit to money market funds today. For example, ABCP investments accounted for over 20% of Moody's-rated U.S. prime money market fund assets at the end of August 2008, but accounted for less than 10% of those assets by the end of August 2011. See Moody's Investors Service, Money Market Funds: ABCP Investments Decrease, Dec. 7, 2011, at 2. Form N-MFP data shows that as of February 28, 2013, prime money market funds held 6.9% of their assets in ABCP. D. Examination of Money Market Fund Regulation Since the Financial Crisis 1. The 2010 Amendments In March 2010, we adopted a number of amendments to rule 2a-7. 92 These amendments were designed to make money market funds more resilient by reducing the interest rate, credit, and liquidity risks of fund asset portfolios. More specifically, the amendments decreased money market funds' credit risk exposure by further restricting the amount of lower quality securities that funds can hold. 93 The amendments, for the first time, also require that money market funds maintain liquidity buffers in the form of specified levels of daily and weekly liquid assets. 94 These liquidity buffers provide a source of internal liquidity and are intended to help funds withstand high redemptions during times of market illiquidity. Finally, the amendments reduce money market funds' exposure to interest rate risk by decreasing the maximum weighted average maturities of fund portfolios from 90 to 60 days. 95 92 Money Market Fund Reform, Investment Company Act Release No. 29132 (Feb. 23, 2010) [75 FR 10060 (Mar. 4, 2010)] (“2010 Adopting Release”). 93 Specifically, the amendments placed tighter limits on a money market fund's ability to acquire “second tier” securities by (1) restricting a money market fund from investing more than 3% of its assets in second tier securities (rather than the previous limit of 5%), (2) restricting a money market fund from investing more than 1/2 of 1% of its assets in second tier securities issued by any single issuer (rather than the previous limit of the greater of 1% or $1 million), and (3) restricting a money market fund from buying second tier securities that mature in more than 45 days (rather than the previous limit of 397 days). See rule 2a-7(c)(3)(ii) and (c)(4)(i)(C). Second tier securities are eligible securities that, if rated, have received other than the highest short-term term debt rating from the requisite NRSROs or, if unrated, have been determined by the fund's board of directors to be of comparable quality. See rule 2a-7(a)(24) (defining “second tier security”); rule 2a-7(a)(12) (defining “eligible security”); rule 2a-7(a)(23) (defining “requisite NRSROs”). 94 The requirements are that, for all taxable money market funds, at least 10% of assets must be in cash, U.S. Treasury securities, or securities that convert into cash ( e.g., mature) within one day and, for all money market funds, at least 30% of assets must be in cash, U.S. Treasury securities, certain other Government securities with remaining maturities of 60 days or less, or securities that convert into cash within one week. See rule 2a-7(c)(5)(ii) and (iii). 95 The 2010 amendments also introduced a weighted average life requirement of 120 days, which limits the money market fund's ability to invest in longer-term floating rate securities. See rule 2a-7(c)(2)(ii) and (iii). In addition to reducing the risk profile of the underlying money market fund portfolios, the reforms increased the amount of information that money market funds are required to report to the Commission and the public. Money market funds are now required to submit to the SEC monthly information on their portfolio holdings using Form N-MFP. 96 This information allows the Commission, investors, and third parties to monitor compliance with rule 2a-7 and to better understand and monitor the underlying risks of money market fund portfolios. Money market funds are now required to post portfolio information on their Web sites each month, providing investors with important information to help them make better-informed investment decisions and helping them impose market discipline on fund managers. 97 96 See rule 30b1-7. 97 See rule 2a-7(c)(12). Finally, money market funds must undergo stress tests under the direction of the board of directors on a periodic basis. 98 Under this stress testing requirement, each fund must periodically test its ability to maintain a stable NAV per share based upon certain hypothetical events, including an increase in short-term interest rates, an increase in shareholder redemptions, a downgrade of or default on portfolio securities, and widening or narrowing of spreads between yields on an appropriate benchmark selected by the fund for overnight interest rates and commercial paper and other types of securities held by the fund. This reform was intended to provide money market fund boards and the Commission a better understanding of the risks to which the fund is exposed and give fund managers a tool to better manage those risks. 99 98 See rule 2a-7(c)(10)(v). 99 See 2009 Proposing Release, supra note 31, at section II.C.3. 2. The Eurozone Debt Crisis and U.S. Debt Ceiling Impasse of 2011 One way to evaluate the efficacy of the 2010 reforms is to examine redemption activity during the summer of 2011. Money market funds experienced substantial redemptions during this time as the Eurozone sovereign debt crisis and impasse over the U.S. debt ceiling unfolded. As a result of concerns about exposure to European financial institutions, prime money market funds began experiencing substantial redemptions. 100 Assets held by prime money market funds declined by approximately $100 billion (or 6%) during a three-week period beginning June 14, 2011. 101 Some prime money market funds had redemptions of almost 20% of their assets in each of June, July, and August 2011, and one fund lost 23% of its assets during that period after articles began to appear in the financial press that warned of indirect exposure of money market funds to Greece. 102 Figures 2 and 3 below show the redemptions from prime money market funds during this time, and also show that investors purchased shares of government money market funds in late June and early July in response to these concerns, but then began redeeming government money market fund shares in late July and early August, likely as a result of concerns about the U.S. debt ceiling impasse and possible ratings downgrades of government securities. 103 100 See RSFI Study, supra note 21, at 32. 101 Id. 102 Id. 103 See also id. at 33. EP19JN13.004 While it is difficult to isolate the effects of the 2010 amendments, these events highlight the potential increased resilience of money market funds after the reforms were adopted. Most significantly, no money market fund had to re-price below its stable $1.00 share price. As discussed in greater detail in the RSFI Study, unlike September 2008, money market funds did not experience significant capital losses that summer, and the funds' shadow prices did not deviate significantly from the funds' stable share prices; also unlike in 2008, money market funds in the summer of 2011 had sufficient liquidity to satisfy investors' redemption requests, which were made over a longer period than in 2008, suggesting that the 2010 amendments acted as intended to enhance the resiliency of money market funds. 104 The redemptions in the summer of 2011 also did not take place against the backdrop of a broader financial crisis, and therefore may have reflected more targeted concerns by investors (concern about exposure to the Eurozone and U.S. government securities as the debt ceiling impasse unfolded). Money market funds' experience in 2008, in contrast, may have reflected a broader range of concerns as reflected in the RSFI Study, which discusses a number of possible explanations for redemptions during the financial crisis. 105 104 Id. at 33-34. 105 Id. at 7-13. Although money market funds' experiences differed in 2008 and the summer of 2011, the heavy redemptions money market funds experienced in the summer of 2011 appear to have negatively affected the markets for short-term financing. Academics researching these issues have found, as detailed in the RSFI Study, that “creditworthy issuers may encounter financing difficulties because of risk taking by the funds from which they raise financing”; “local branches of foreign banks reduced lending to U.S. entities in 2011”; and that “European banks that were more reliant on money funds experienced bigger declines in dollar lending.” 106 Thus, while such redemptions often exemplify rational risk management by money market fund investors, they can also have certain contagion effects on the short-term financing markets. 106 See id. at 34-35 (“It is important to note, however, investor redemptions has a direct effect on short-term funding liquidity in the U.S. commercial paper market. Chernenko and Sunderam (2012) report that `creditworthy issuers may encounter financing difficulties because of risk taking by the funds from which they raise financing.' Similarly, Correa, Sapriza, and Zlate (2012) finds U.S. branches of foreign banks reduced lending to U.S. entities in 2011, while Ivashina, Scharfstein, and Stein (2012) document European banks that were more reliant on money funds experienced bigger declines in dollar lending.”) (internal citations omitted); Sergey Chernenko & Adi Sunderam, Frictions in Shadow Banking: Evidence from the Lending Behavior of Money Market Funds, Fisher College of Business Working Paper No. 2012-4 (Sept. 2012); Ricardo Correa et al., Liquidity Shocks, Dollar Funding Costs, and the Bank Lending Channel During the European Sovereign Crisis, Federal Reserve Board International Finance Discussion Paper No. 2012-1059 (Nov. 2012); Victoria Ivashina et al., Dollar Funding and the Lending Behavior of Global Banks, National Bureau of Economic Research Working Paper No. 18528 (Nov. 2012). 3. Our Continuing Consideration of the Need for Additional Reforms When we proposed and adopted the 2010 amendments, we acknowledged that money market funds' experience during the 2007-2008 financial crisis raised questions of whether more fundamental changes to money market funds might be warranted. 107 We solicited and received input from a number of different sources analyzing whether or not additional reforms may be necessary, and we began to solicit and evaluate potential options for additional regulation of money market funds to address these vulnerabilities. In the 2009 Proposing Release we requested comment on certain options, including whether money market funds should be required to move to the “floating net asset value” used by all other mutual funds or satisfy certain redemptions in-kind. 108 We received over 100 comments on this aspect of the 2009 Proposing Release. 109 In adopting the 2010 amendments, we noted that we would continue to explore more significant regulatory changes in light of the comments we received. 110 At the time, we stated that we had not had the opportunity to fully explore possible alternatives and analyze the potential costs, benefits, and consequences of those alternatives. 107 See 2009 Proposing Release, supra note 31, at section III; 2010 Adopting Release, supra note 92, at section I. 108 See 2009 Proposing Release, supra note 31, at section III.A. 109 Comments on the 2009 Proposing Release can be found at http://www.sec.gov/comments/s7-11-09/s71109.shtml . 110 See 2010 Adopting Release, supra note 92, at section I. Our subsequent consideration of money market funds has been informed by the work of the President's Working Group on Financial Markets, which published a report on money market fund reform options in 2010 (the “PWG Report”). 111 We solicited comment on the features of money market funds that make them susceptible to heavy redemptions and potential options for reform both through our request for comment on the PWG Report and by hosting a May 2011 roundtable on Money Market Funds and Systemic Risk (the “2011 Roundtable”). 112 111 Report of the President's Working Group on Financial Markets, Money Market Fund Reform Options (Oct. 2010) (“PWG Report”), available at http://www.treasury.gov/press-center/press-releases/Documents/10.21%20PWG%20Report%20Final.pdf . The members of the PWG included the Secretary of the Treasury Department (as chairman of the PWG), the Chairman of the Board of Governors of the Federal Reserve System, the Chairman of the SEC, and the Chairman of the Commodity Futures Trading Commission. 112 See President's Working Group Report on Money Market Fund Reform, Investment Company Act Release No. 29497 (Nov. 3, 2010) [75 FR 68636 (Nov. 8, 2010)]. See also Roundtable Transcript, supra note 43. The potential financial stability risks associated with money market funds also have attracted the attention of the Financial Stability Oversight Council (“FSOC”), which has been tasked with monitoring and responding to threats to the U.S. financial system and which superseded the PWG. 113 On November 13, 2012, FSOC proposed to recommend that we implement one or a combination of three reforms designed to address risks to financial companies and markets that money market funds may pose. 114 The first option would require money market funds to use floating NAVs. 115 The second option would require money market funds to have a NAV buffer with a tailored amount of assets of up to 1% (raised through various means) to absorb day-to-day fluctuations in the value of the funds' portfolio securities and allow the funds to maintain a stable NAV. 116 The NAV buffer would be paired with a requirement that 3% of a shareholder's highest account value in excess of $100,000 during the previous 30 days—a “minimum balance at risk” (“MBR”)—be made available for redemption on a delayed basis. These requirements would not apply to certain money market funds that invest primarily in U.S. Treasury obligations and repurchase agreements collateralized with U.S. Treasury securities. The third option would require money market funds to have a risk-based NAV buffer of 3%. This 3% NAV buffer potentially could be combined with other measures aimed at enhancing the effectiveness of the buffer and potentially increasing the resiliency of money market funds, and thereby justifying a reduction in the level of the required NAV buffer. 117 Finally, in addition to proposing to recommend these three reform options, FSOC requested comment on other potential reforms, including standby liquidity fees and temporary restrictions on redemptions (“gates”), which would be implemented during times of market stress to reduce money market funds' vulnerability to runs. 118 113 The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) established the FSOC: (A) To identify risks to the financial stability of the United States that could arise from the material financial distress or failure, or ongoing activities, of large, interconnected bank holding companies or nonbank financial companies, or that could arise outside the financial services marketplace; (B) to promote market discipline, by eliminating expectations on the part of shareholders, creditors, and counterparties of such companies that the Government will shield them from losses in the event of failure; and (C) to respond to emerging threats to the stability of the United States financial system. The ten voting members of the FSOC include the Treasury Secretary (who serves as Chairman of the FSOC), the Chairmen of the Commission, the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Federal Deposit Insurance Corporation, and the National Credit Union Administration Board, the Directors of the Bureau of Consumer Financial Protection and the Federal Housing Finance Agency, the Comptroller of the Currency, and an independent insurance expert appointed by the President of the United States. See Dodd-Frank Act, Public Law 111-203, 124 Stat. 1376 §§ 111-112 (2010). 114 See Proposed Recommendations Regarding Money Market Mutual Fund Reform, Financial Stability Oversight Council [77 FR 69455 (Nov. 19, 2012)] (the “FSOC Proposed Recommendations”). Under section 120 of the Dodd-Frank Act, if the FSOC determines that the conduct, scope, nature, size, scale, concentration, or interconnectedness of a financial activity or practice conducted by bank holding companies or nonbank financial companies could create or increase the risk of significant liquidity, credit, or other problems spreading among bank holding companies and nonbank financial companies, the financial markets of the United States, or low-income, minority or under-served communities, the FSOC may provide for more stringent regulation of such financial activity or practice by issuing recommendations to primary financial regulators, like the Commission, to apply new or heightened standards or safeguards. FSOC has proposed to issue a recommendation to the Commission under this authority concerning money market funds. If FSOC issues a final recommendation to the Commission, the Commission, under section 120, would be required to impose the recommended standards, or similar standards that FSOC deems acceptable, or explain in writing to FSOC why the Commission has determined not to follow FSOC's recommendation. 115 See FSOC Proposed Recommendations, supra note 114, at section V.A. 116 See id. at section V.B. 117 See id. at section V.C. 118 See id. at section V.D. In its proposed recommendation FSOC stated that the Commission, “by virtue of its institutional expertise and statutory authority, is best positioned to implement reforms to address the risk that [money market funds] present to the economy,” and that if the Commission “moves forward with meaningful structural reforms of [money market funds] before [FSOC] completes its Section 120 process, [FSOC] expects that it would not issue a final Section 120 recommendation.” 119 We strongly agree that the Commission is best positioned to consider and implement any further reforms to money market funds, and we have considered FSOC's analysis of its proposed recommended reform options and the public comments that FSOC has received in formulating the money market reforms we are proposing today. 119 See id. at section III.B. The RSFI Study, discussed throughout this Release, also has informed our consideration of the risks that may be posed by money market funds and our formulation of today's proposals. The RSFI Study contains, among other things, a detailed analysis of our 2010 amendments to rule 2a-7 and some of the amendments' effects to date, including changes in some of the characteristics of money market funds, the likelihood that a fund with the maximum permitted weighted average maturity (“WAM”) would “break the buck” before and after the 2010 reforms, money market funds' experience during the 2011 Eurozone sovereign debt crisis and the U.S. debt-ceiling impasse, and how money market funds would have performed during September 2008 had the 2010 reforms been in place at that time. 120 120 See generally RSFI Study, supra note 21, at section 4. In particular, the RSFI Study found that under certain assumptions the expected probability of a money market fund breaking the buck was lower with the additional liquidity required by the 2010 reforms. 121 In addition, funds in 2011 had sufficient liquidity to withstand investors' redemptions during the summer of 2011. 122 The fact that no fund experienced a credit event during that time also contributed to the evidence that funds' were able to withstand relatively heavy redemptions while maintaining a stable $1.00 share price. Finally, using actual portfolio holdings from September 2008, the RSFI Study analyzed how funds would have performed during the financial crisis had the 2010 reforms been in place at that time. While funds holding 30% weekly liquid assets are more resilient to portfolio losses, funds will “break the buck” with near certainty if capital losses of the fund's non-weekly liquid assets exceed 1%. 123 The RSFI Study concludes that the 2010 reforms would have been unlikely to prevent a fund from breaking the buck when faced with large credit losses like the ones experienced in 2008. 124 The inferences that can be drawn from the RSFI Study lead us to conclude that while the 2010 reforms were an important step in making money market funds better able to withstand heavy redemptions when there are no portfolio losses (as was the case in the summer of 2011), they are not sufficient to address the incentive to redeem when credit losses are expected to cause fund's portfolios to lose value or when the short-term financing markets more generally are expected to, or do, come under stress. Accordingly, we preliminarily believe that the alternative reforms proposed in this Release could lessen money market funds' susceptibility to heavy redemptions, improve their ability to manage and mitigate potential contagion from high levels of redemptions, and increase the transparency of their risks, while preserving, as much as possible, the benefits of money market funds. 121 Id. at 30. 122 Id. at 34. 123 Id. at 38, Table 5. In fact, even at capital losses of only 0.75% of the fund's non-weekly liquid assets and no investor redemptions, funds are already more likely than not (64.6%) to “break the buck.” Id. 124 To further illustrate the point, the RSFI Study noted that the Reserve Primary Fund “would have broken the buck even in the presence of the 2010 liquidity requirements.” Id. at 37. III. Discussion We are proposing alternative amendments to rule 2a-7, and related rules and forms, that would either (i) require money market funds (other than government and retail money market funds) 125 to “float” their NAV per share or (ii) require that a money market fund (other than a government fund) whose weekly liquid assets fall below 15% of its total assets be required to impose a liquidity fee of 2% on all redemptions (unless the fund's board determines that the liquidity fee is not in the best interest of the fund). Under the second alternative, once the money market fund crosses this threshold, the fund's board also would have the ability to temporarily suspend redemptions (or “gate”) the fund for a limited period of time if the board determines that doing so is in the fund's best interest. 126 We discuss each of these alternative proposals in this section, along with potential tax, accounting, operational, and economic implications. We also discuss a potential combination of our floating NAV proposal and liquidity fees and gates proposal, as well as the potential benefits, drawbacks, and operational issues associated with such a potential combination. We also discuss various alternative approaches that we have considered for money market fund reform. 125 Our proposed exemptions for government and retail money market funds (including our proposed definition for a retail money market fund) are discussed in sections III.A.3 and III.A.4, respectively. The exemptive amendments we are proposing are within the Commission's broad authority under section 6(c) of the Act. Section 6(c) authorizes the Commission to exempt by rule, conditionally or unconditionally, any person, security, or transaction (or classes of persons, securities, or transactions) from any provision of the Act “if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions” of the Act. 15 U.S.C. 80a-6(c). For the reasons discussed throughout this Release, the Commission preliminarily believes that the proposed amendments to rules 2a-7, 12d3-1, 18f-3, and 22e-3 meet these standards. 126 In the text of the proposed rules and forms below we refer to our floating NAV alternative as “Alternative 1,” and our liquidity fees and gates alternative as “Alternative 2.” In addition, we are proposing a number of other amendments that would apply under either alternative proposal to enhance the disclosure of money market fund operations and risks. Certain of our proposed disclosure requirements would vary depending on the alternative proposal adopted (if any) as they specifically relate to the floating NAV proposal or the liquidity fees and gates proposal. In addition, we are proposing additional disclosure reforms to improve the transparency of risks present in money market funds, including daily Web site disclosure of funds' daily and weekly liquid assets and market-based NAV per share and historic instances of sponsor support. We also are proposing to establish a new current event disclosure form that would require funds to make prompt public disclosure of certain events, including portfolio security defaults, sponsor support, a fall in the funds' weekly liquid assets below 15% of total assets, and a fall in the market-based price of the fund below $0.9975. We are proposing to amend Form N-MFP to provide additional information relevant to assessing the risk of funds and make this information public immediately upon filing. In addition, we are proposing to require that a large liquidity fund adviser that manages a private liquidity fund provide security-level reporting on Form PF that are substantially the same as those currently required to be reported by money market funds on Form N-MFP. 127 127 See infra section III.I. Our proposed amendments also would tighten the diversification requirements of rule 2a-7 by requiring consolidation of certain affiliates for purposes of the 5% issuer diversification requirement, requiring funds to presumptively treat the sponsors of asset-backed securities (“ABSs”) as guarantors subject to rule 2a-7's diversification requirements, and removing the so-called “twenty-five percent basket.” 128 Finally, we are proposing to amend the stress testing provision of rule 2a-7 to enhance how funds stress test their portfolios and require that money market funds stress test against the fund's level of weekly liquid assets falling below 15% of total assets. 128 The “twenty-five percent basket” currently allows money market funds to only comply with the 10% guarantee concentration limit with respect to 75% of the fund's total assets. See infra section III.J. We note finally that we are not rescinding our outstanding 2011 proposal to remove references to credit ratings from two rules and four forms under the Investment Company Act, including rule 2a-7 and Form N-MFP, under section 939A of the Dodd-Frank Act, and on which we welcome additional comments. 129 The Commission intends to address this matter at another time and, therefore, this Release is based on rule 2a-7 and Form N-MFP as amended and adopted in 2010. 130 129 See References to Credit Ratings in Certain Investment Company Act Rules and Forms, Investment Company Act Release No. 29592 (Mar. 3, 2011) [76 FR 12896 (Mar. 9, 2011)] (proposing to also eliminate references to credit ratings from rule 5b-3 and Forms N-1A, N-2, and N-3, and establish new rule 6a-5 to replace a reference to credit ratings in section 6(a)(5) that the Dodd-Frank Act eliminated). 130 See 2010 Adopting Release, supra note 92. We note that after enactment of the Dodd-Frank Act, our staff issued a no-action letter assuring money market funds and their managers that, in light of section 939A of the Dodd-Frank Act, the staff would not recommend enforcement action to the Commission under section 2(a)(41) of the Act and rules 2a-4 and 22c-1 thereunder if a money market fund board did not designate NRSROs and did not make related disclosures in its SAI before the Commission had completed its review of rule 2a-7 required by the Dodd-Frank Act and made any modifications to the rule. See SEC Staff No-Action Letter to the Investment Company Institute (Aug. 19, 2010). This staff guidance remains in effect until such time as the Commission or its staff indicate otherwise. A. Floating Net Asset Value Our first alternative proposal—a floating NAV—is designed primarily to address the incentive of money market fund shareholders to redeem shares in times of fund and market stress based on the fund's valuation and pricing methods, as discussed in section II.B.1 above. It should also improve the transparency of pricing associated with money market funds. Under this alternative, money market funds (other than government and retail money market funds 131 ) would be required to “float” their net asset value. This proposal would amend 132 rule 2a-7 to rescind certain exemptions that have permitted money market funds to maintain a stable price by use of amortized cost valuation and penny-rounding pricing of their portfolios. 133 As a result, the money market funds subject to this reform would sell and redeem shares at prices that reflect the value using market-based factors of their portfolio securities and would not penny round their prices. 134 In other words, the daily share prices of these money market funds would “float,” which means that each fund's NAV would fluctuate along with changes, if any, in the value using market-based factors of the fund's underlying portfolio of securities. 135 Money market funds would only be able to use amortized cost valuation to the extent other mutual funds are able to do so—where the fund's board of directors determines, in good faith, that the fair value of debt securities with remaining maturities of 60 days or less is their amortized cost, unless the particular circumstances warrant otherwise. 136 131 The definitions of government and retail money market funds, as considered exempt under our proposals from certain proposed reforms, are discussed in sections III.A.3 and III.A.4. These funds would also price their portfolio securities using market-based factors, but would continue to be able to maintain a stable price per share through the use of the penny rounding method of pricing. 132 References to rule 2a-7 as amended under our floating NAV proposal will be “proposed (FNAV) rule”; similarly, references to rule 2a-7 as amended under our liquidity fees and gates proposal discussed in section III.B will be “proposed (Fees & Gates) rule.” 133 We also propose to amend rule 18f-3(c)(2)(i) to replace the phrase “that determines net asset value using the amortized cost method permitted by § 270.2a-7” with “that operates in compliance with § 270.2a-7” because mon [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2013-13687. Public record. Not legal advice.