[Federal Register Volume 67, Number 178 (Friday, September 13, 2002)]
[Notices]
[Pages 58087-58088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23353]


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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, Washington, 
DC 20549.

    Extension: Rule 0-1 [17 CFR 270.0-1], SEC File No. 270-472, OMB 
Control No. 3235-0531

    Notice is hereby given that, pursuant to the Paperwork Reduction 
Act of 1995 (44 U.S.C. 350l-3520), the Securities and Exchange 
Commission (the ``Commission'') is soliciting comments on the 
collection of information summarized below. The Commission plans to 
submit this existing collection of information to the Office of 
Management and Budget (``OMB'') for extension and approval.
    Investment companies (``funds'') are formed as corporations or 
business trusts under State law and, like other corporations and 
trusts, must be operated for the benefit of their shareholders.\1\ 
Funds are unique, however, in that they are ``organized and operated by 
people whose primary loyalty and pecuniary interest lie outside the 
enterprise.'' \2\ As described below, this ``external management'' of 
most funds presents inherent conflicts of interest and potential for 
abuses.
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    \1\ See generally James M. Storey and Thomas M Clyde, Mutual 
Fund Law Handbook 7.2 (1998).
    \2\ Division of Investment Management, SEC, Protecting 
Investors: A Half Century of Investment Company Regulation 251 
(1992).
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    An investment adviser typically organizes a fund and is responsible 
for its day-to-day operations. The adviser provides the seed money, 
officers, employees, and office space, and usually selects the initial 
board of directors. In many cases, the investment adviser sponsors 
several funds that share administrative and distribution systems as 
part of a ``family of funds.'' As a result of this extensive 
involvement, and the general absence of shareholder activism, many 
investment advisers typically dominate the funds they advise.\3\
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    \3\ See SEC, Report on the Public Policy Implications of 
Investment Company Growth, H.R. Rep. No. 2337, 89th Cong., 2d. Sess. 
12, 127, 148 (1966) (stating that funds generally are formed by 
their advisers and remain under their control, and that advisers' 
influence permeates fund activities).
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    Investment advisers to funds are themselves generally organized as 
corporations, which have their own shareholders. These shareholders 
have an interest in the fund that is quite different from the interests 
of the fund's shareholders. For example, while fund shareholders 
ordinarily prefer lower fees (to achieve greater returns), shareholders 
of the fund's investment adviser might want to maximize profits through 
higher fees. And while fund shareholders might prefer that advisers use 
brokers that charge the lowest possible commissions, advisers might 
prefer brokers that will provide investment research in exchange for 
commissions. These types of conflicts (and others) resulted in the 
pervasive abuses in the fund industry that led Congress in 1940 to 
enact legislation regulating the activities of mutual funds.\4\
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    \4\ See Storey and Clyde, supra note .
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    The Investment Company Act of 1940 (``Investment Company Act'' or 
``Act'') establishes a comprehensive regulatory scheme designed to 
protect fund investors by addressing the conflicts of interest between 
funds and their investment advisers and other affiliated persons. The 
Investment Company Act places significant responsibility on the board 
of directors in overseeing the operations of the fund and policing 
conflicts of interest.\5\
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    \5\ For instance, Fund directors must approve investment 
advisory and distribution contracts [15 U.S.C. 80a-15(a), (b), and 
(c)].
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    Independent fund directors represent the interests of shareholders, 
acting as watchdogs for investors and providing a check on management. 
On January 2, 2001, the Commission adopted amendments to ten exemptive 
rules under the Act that were designed to enhance the effectiveness of 
boards of directors of funds and to better enable investors to assess 
the independences of those directors.\6\ In the Adopting Release, the 
Commission amended rule 0-1 to add a definition of ``independent legal 
counsel.'' The Adopting Release amended the exemptive rules to require 
that any person who acts as legal counsel to the independent directors 
of any fund relying on the rules must be an ``independent legal 
counsel.'' This requirement was added because independent directors can 
better perform the responsibilities assigned to them under the Act and 
the rules if they have the assistance of a truly independent legal 
counsel.
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    \6\ Role of Independent Directors of Investment Companies, 
Investment Company Act Release No. 24816 (Jan. 2, 2001) [66 FR 3735 
(Jan. 16, 2001)] (``Adopting Release'').
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    Rule 0-1 provides that a person is an independent legal counsel if 
a fund's independent directors determine (and record the basis for that 
determination in the minutes of their meeting) that any representation 
of the fund's investment adviser, principal underwriter, administrator 
(collectively, ``management organizations'') or their ``control 
persons'' \7\ during the past two years is or was sufficiently limited 
that that it is unlikely to adversely affect the professional judgment 
of the person in providing legal representation. In addition, the 
independent directors must have obtained an undertaking from the 
counsel to provide them with information necessary to make their 
determination and to update promptly that information when the person 
begins to represent, or materially increases his representation of, a 
management organization or control person. Generally, the independent 
directors must re-evaluate their determination at least annually.
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    \7\ A ``control person'' is any person--other than a fund--
directly or indirectly controlling controlled by, or under common 
control, with any of the fund's management organizations. See 17 CFR 
270.01(a)(6)(iv)(B).
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    Any fund that relies on an exemptive rule in the Adopting Release 
is required to use the definition of independent legal counsel 
contained in rule 0-1. We assume that approximately 4,050 funds

[[Page 58088]]

rely on at least one of the exemptive rules annually.\8\ We further 
assume that the independent directors of approximately one-third 
(1,336) of those funds would need to make the required determination in 
order for their counsel to meet the definition of independent legal 
counsel.\9\ We estimate that each of these 1,336 funds would be 
required to spend, on average, 0.75 hours annually to comply with the 
proposed recordkeeping requirement concerning this determination, for a 
total annual burden of approximately 1,002 hours. Based on this 
estimate, the total annual cost for all funds of this proposed 
definition would be approximately $22,712. To calculate this total 
annual cost, the Commission staff assumed that two-thirds of the total 
annual hour burden (668 hours) would be incurred by professionals with 
an average hourly wage rate of $27 per hour, and one-third of that 
annual hour burden (334 hours) would be incurred by clerical staff with 
an average hourly wage rate of $14 \10\ per hour.\11\
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    \8\ Based on statistics compiled by Commission staff, we 
estimate that there are approximately 4,500 funds that could rely on 
one or more of the exemptive rules. Of those funds, we assume that 
approximately 90 percent (4,050) actually rely on at least one 
exemptive rules annually.
    \9\ We assume that the independent directors of the remaining 
two-thirds of those funds will choose not to have counsel (but 
instead rely in some circumstances on counsel who does not represent 
them), so that no determination by the independent directors would 
be necessary.
    \10\ The Commission's estimates concerning the wage rate for 
professional time and for clerical time are based on salary 
information for the securities industry complied by the Securities 
Industry Association. See Securities Industry Association, Report on 
Management and Professional Earnings in the Securities Industry 
(September 2001).
    \11\ (668 x $27/hour) + (334 x $14/hour) = $22,712.
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    These burden hour estimates are based upon the Commission staff's 
experience and discussions with the fund industry. The estimates of 
average burden hours are made solely for the purposes of the Paperwork 
Reduction Act. These estimates are not derived from a comprehensive or 
even a representative survey or study of the costs of Commission rules.
    Written comments are invited on: (a) Whether the collection of 
information is 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 collection of information; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burdens of the collection 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, 
Associate Executive Director, Office of Information Technology, 
Securities and Exchange Commission, 450 5th Street, NW, Washington, DC 
20549.

    Dated: September 6, 2002.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-23353 Filed 9-12-02; 8:45 am]
BILLING CODE 8010-01-P