[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Notices]
[Pages 8413-8415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4115]


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SECURITIES AND EXCHANGE COMMISSION


Existing Collection; Comment Request

    Upon Written Request, Copies Available From: Securities and 
Exchange Commission, Office of Filings and Information Services, 450 
5th Street, NW., Washington, DC 20549.
    Extension: Rule 10f-3 [17 CFR 270.10f-3], SEC File No. 270-237, OMB 
Control No. 3235-0226.
    Notice is hereby given that, pursuant to the Paperwork Reduction 
act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange 
Commission (``Commission'') is soliciting comments on the collections 
of information summarized below. The Commission plans to submit these 
existing collections of information to the Office of Management and 
Budget (``OMB'') for extension and approval.
    Section 10(f) of the Investment Company Act of 1940 [15 U.S.C. 80a-
10(f)] (the ``Act'' or ``Investment Company Act'') prohibits a 
registered investment company (``fund'') from purchasing any security 
during an underwriting or selling syndicate if the fund has certain 
relationships with a

[[Page 8414]]

principal underwriter \1\ for the security (``affiliated 
underwriter'').\2\ Congress enacted this provision in 1940 to protect 
funds and their investors by preventing underwriters from ``dumping'' 
unmarketable securities on affiliated funds.\3\
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    \1\ ``Principal underwriter'' is defined to mean (in relevant 
part) an underwriter that, in connection with a primary distribution 
of securities, (A) is in privity of contract with the issuer or an 
affiliated person of the issuer, (B) acting alone or in concert with 
one or more other persons, initiates or directs the formation of an 
underwriting syndicate, or (C) is allowed a rate of gross 
commission, spread, or other profit greater than the rate allowed 
another underwriter participating in the distribution. 15 U.S.C. 
80a-2(a)(29).
    \2\ Section 10(f) prohibits the purchase if a principal 
underwriter of the security is an officer, director, member of an 
advisory board, investment adviser, or employee of the fund, or if 
any officer, director, member of an advisory board, investment 
adviser, or employee of the fund is affiliated with the principal 
underwriter. 15 U.S.C. 80a-10(f).
    \3\ See Investment Trusts and Investment Companies: Hearings on 
S. 3580 Before a Subcomm. of the Senate Comm. on Banking and 
Currency, 76th Cong., 3d Sess. 35 (1940) (statement of Commissioner 
Healy).
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    Under rulemaking authority under section 10(f), the Commission 
adopted rule 10f-3 in 1958 and last amended the rule in 1997. Rule 10f-
3 currently permits a fund to purchase securities in a transaction that 
otherwise would violate section 10(f) if, among other things:
    (1) The securities either are registered under the Securities Act 
of 1933, are municipal securities with certain credit ratings, or are 
offered in certain private or foreign offerings;
    (2) The offering involves a ``firm commitment'' underwriting.
    (3) The fund (together with other funds advised by the same 
investment adviser) purchases no more than 25 percent of the offering;
    (4) The fund purchases the securities from a member of the 
syndicate other than the affiliated underwriter;
    (5) If the securities are municipal securities, the purchase is not 
a group sale; and
    (6) The fund's directors have approved procedures for purchases 
made in reliance on the rule and regularly review fund purchases to 
determine whether they comply with these procedures.

These limitations are designed to ensure that the purchases are not 
likely to raise the concerns that section 10(f) was enacted to address 
and are consistent with the protection of investors.\4\
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    \4\ See Exemption for the Acquisition of Securities During the 
Existence of An Underwriting or Selling Syndicate, Investment 
Company Act Release No. 22775 (July 31, 1997) [62 FR 42401 (Aug. 7, 
1997)] (``1997 Adopting Release'').
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    Among other conditions to the exemptions, rule 10f-3 requires a 
fund's board of directors to approve procedures that would ensure 
compliance with the conditions of the rule and to approve changes to 
these procedures as necessary. The board also must review rule 10f-3 
transactions on a quarterly basis. The rule requires funds to report, 
on Form N-SAR, any transactions effected under the rule and to attach 
to the report a written record of each transaction. The written record 
must state (i) from whom the securities were acquired, (ii) the 
identity of the underwriting syndicate's members, (iii) the terms of 
the transactions, and (iv) the information or materials on which the 
fund's board of directors has determined that the purchases were made 
in compliance with procedures established by the board. In addition, a 
fund must retain written records of the rule 10f-3 transactions and of 
the quarterly transactional information reviewed by the board for six 
years. These requirements are important not only because they provide a 
built-in mechanism for fund boards to monitor compliance with the rule, 
but also because they permit the Commission to review these materials 
during fund inspections, monitor developments under the rule, and 
consider whether to take enforcement action in appropriate cases.
    The Collection of information requirements (as well as other 
requirements) of rule 10f-3 are designed to assure that appropriate 
arrangements are in place to conform the enforceability of the Act 
against the fund. The records required to be maintained are reviewed by 
the Commission in the course of its compliance and examination program, 
and are used by fund directors to evaluate procedures and transactions 
executed pursuant to the rule. The rule does not impose any separate 
recordkeeping costs on funds because the records required to be 
maintained already are required by section 31(a) of the Act and rules 
31a-1 and 31a-2.
    From our review of Form N-SAR filings, we estimate that 300 funds 
rely on rule 10f-3 annually. We estimate that the board of directors of 
each of those funds makes, on average, 1 response each year when it 
approves procedures required by the rule. We estimate further that the 
approval of such procedures would take, on average, 1 hour of director 
time (at $500 per hour) and 0.5 hours of professional time (at $150 per 
hour) for 70 funds that do not purchase foreign or municipal 
securities, and 1.5 hours of director time and 0.5 hours of 
professional time for 230 funds that invest in these securities. Thus, 
Commission staff estimates that the total annual reporting burden of 
the rule's paperwork requirement is 565 hours, at a total annual cost 
of $230,000.\5\
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    \5\ This estimate is equal to the number of funds that do not 
purchase municipal securities (70) multiplied by the estimated 
annual cost of adopting or reviewing procedures for each fund ((1 
x  $500) + (0.5  x  $150 = $575) plus the number of funds that 
invest in foreign or municipal securities (230) multiplied by the 
estimated annual cost of adopting or reviewing procedures for each 
fund ((1.5  x  $500) + (.05  x  $150) = $825), for a total of 
$230,000 ((70  x  575) + (230  x  $825) = $230,000).
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    The estimated burden hours are a decrease from the current 
allocation of 670 hours. The decrease of 105 hours reflects a decrease 
in the number of funds that have reported the purchase of securities in 
reliance on rule 10f-3. The 1996 proposal to eliminate the requirements 
that funds report information about rule 10f-3 transactions on Form N-
SAR would not have led to a decrease in the burden hours reportable for 
rule 10f-3 because the hours associated with the reporting requirement 
are included in the burden hours reported for Form N-SAR.
    These estimates of average burden hours are made solely for the 
purposes of the Paperwork Reduction Act. The estimate is not derived 
from a comprehensive or even a representative survey or study of 
Commission rules.
    Commission staff estimates that there is not cost burden for rule 
103-3 other than the $230,000 in annual costs associated with the 
respondent reporting burden. the procedures to be developed and revised 
as necessary required on start-up or capital costs. Additionally, the 
development of and occasional review of procedures would be part of 
customary and usual business practice to ensure compliance with 
applicable laws and regulations.
    These estimates of average costs are made solely for the purposes 
of the Paperwork Reduction Act. The estimates are not derived from a 
comprehensive or even a representative survey or study of the costs of 
Commission rules. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.
    Written comments are invited on: (a) Whether the collections of 
information are necessary for the proper performance of the functions 
of the Commission, including whether the information has practical 
utility; (b) the accuracy of the Commission's estimate of the burdens 
of the collections of information; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burdens of the collections

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of information on respondents, including through the use of automated 
collection techniques or other forms of information technology. 
Consideration will be given to comments and suggestions submitted in 
writing within 60 days of this publication.
    Please direct your written comments to Michael E. Bartell, 
Associated Executive Director, Office of Information Technology, 
Securities and Exchange Commission, Mail Stop 0-4, 450 5th Street, NW, 
Washington, DC 20549.

    Dated: February 10, 1999.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 99-4115 Filed 2-18-99; 8:45 am]
BILLING CODE 8010-01-M