[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Notices]
[Pages 36587-36589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14908]


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SECURITIES AND EXCHANGE COMMISSION


Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange 
Commission, Office of Investor Education and Advocacy, Washington, DC 
20549-0213.

Extension:
    Rule 12b-1; SEC File No. 270-188; OMB Control No. 3235-0212.

    Notice is hereby given that, pursuant to the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.), 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 for extension and approval.

[[Page 36588]]

    Rule 12b-1 under the Investment Company Act of 1940 (17 CFR 
270.12b-1) permits a registered open-end investment company (``fund'' 
or ``mutual fund'') to bear expenses associated with the distribution 
of its shares, provided that the mutual fund complies with certain 
requirements, including, among other things, that it adopt a written 
plan (``rule 12b-1 plan'') and that it has in writing any agreements 
relating to the rule 12b-1 plan. The rule in part requires that (i) the 
adoption or material amendment of a rule 12b-1 plan be approved by the 
mutual fund's directors, including its independent directors, and, in 
certain circumstances, its shareholders; (ii) the board review 
quarterly reports of amounts spent under the rule 12b-1 plan; and (iii) 
the board, including the independent directors, consider continuation 
of the rule 12b-1 plan and any related agreements at least annually. 
Rule 12b-1 also requires mutual funds relying on the rule to preserve 
for six years, the first two years in an easily accessible place, 
copies of the rule 12b-1 plan and any related agreements and reports, 
as well as minutes of board meetings that describe the factors 
considered and the basis for adopting or continuing a rule 12b-1 plan.
    Rule 12b-1 also prohibits funds from paying for distribution of 
fund shares with brokerage commissions on their portfolio transactions. 
The rule requires funds that use broker-dealers that sell their shares 
to also execute their portfolio securities transactions, to implement 
policies and procedures reasonably designed to prevent: (i) The persons 
responsible for selecting broker-dealers to effect transactions in fund 
portfolio securities from taking into account broker-dealers' 
promotional or sales efforts when making those decisions; and (ii) a 
fund, its adviser or principal underwriter, from entering into any 
agreement under which the fund directs brokerage transactions or 
revenue generated by those transactions to a broker-dealer to pay for 
distribution of the fund's (or any other fund's) shares.
    The board and shareholder approval requirements of rule 12b-1 are 
designed to ensure that fund shareholders and directors receive 
adequate information to evaluate and approve a rule 12b-1 plan and, 
thus, are necessary for investor protection. The requirement of 
quarterly reporting to the board is designed to ensure that the rule 
12b-1 plan continues to benefit the fund and its shareholders. The 
recordkeeping requirements of the rule are necessary to enable 
Commission staff to oversee compliance with the rule. The requirement 
that funds or their advisers implement, and fund boards approve, 
policies and procedures in order to prevent persons charged with 
allocating fund brokerage from taking distribution efforts into account 
is designed to ensure that funds' selection of brokers to effect 
portfolio securities transactions is not influenced by considerations 
about the sale of fund shares.
    Based on information filed with the Commission by funds, Commission 
staff estimates that there are approximately 6,771 mutual fund 
portfolios that have at least one share class subject to a rule 12b-1 
plan.\1\ However, many of these portfolios are part of an affiliated 
group of funds, or mutual fund family, that is overseen by a common 
board of directors. Although the board must review and approve the rule 
12b-1 plan for each fund separately, we have allocated the costs and 
hourly burden related to rule 12b-1 based on the number of fund 
families that have at least one fund that charges rule 12b-1 fees, 
rather than on the total number of mutual fund portfolios that 
individually have a rule 12b-1 plan.\2\ Based on information filed with 
the Commission, the staff estimates that there are approximately 375 
fund families with common boards of directors that have at least one 
fund with a rule 12b-1 plan.
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    \1\ This estimate is based on information from the Commission's 
NSAR database.
    \2\ This allocation is based on previous conversations with fund 
representatives on how fund boards comply with the requirements of 
rule 12b-1. Despite this allocation of hourly burdens and costs, the 
number of annual responses each year will continue to depend on the 
number of fund portfolios with rule 12b-1 plans rather than the 
number of fund families with rule 12b-1 plans. The staff estimates 
that the number of annual responses per fund portfolio will be four 
per year (quarterly, with the annual reviews taking place at one of 
the quarterly intervals). Thus, we estimate that funds will make 
27,084 responses (6,771 fund portfolios x 4 responses per fund 
portfolio = 27,084 responses) each year.
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    Based on previous conversations with fund representatives, 
Commission staff estimates that for each of the 375 mutual fund 
families with a portfolio that has a rule 12b-1 plan, the average 
annual burden of complying with the rule is 425 hours. This estimate 
takes into account the time needed to prepare quarterly reports to the 
board of directors, the board's consideration of those reports, and the 
board's initial or annual consideration of whether to continue the 
plan.\3\ We therefore estimate that the total hourly burden per year 
for all funds to comply with current information collection 
requirements under rule 12b-1, is 159,375 hours (375 fund families x 
425 hours per fund family = 159,375 hours).
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    \3\ We do not estimate any costs or time burden related to the 
recordkeeping requirements in rule 12b-1, as funds are either 
required to maintain these records pursuant to other rules or would 
keep these records in any case as a matter of business practice.
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    If a currently operating fund seeks to (i) adopt a new rule 12b-1 
plan or (ii) materially increase the amount it spends for distribution 
under its rule 12b-1 plan, rule 12b-1 requires that the fund obtain 
shareholder approval. As a consequence, the fund will incur the cost of 
a proxy.\4\ Based on previous conversations with fund representatives, 
Commission staff estimates that approximately three funds per year 
prepare a proxy in connection with the adoption or material amendment 
of a rule 12b-1 plan. Funds typically hire outside legal counsel and 
proxy solicitation firms to prepare, print, and mail such proxies. The 
staff further estimates that the cost of each fund's proxy is $32,174. 
Thus the total annual cost burden of rule 12b-1 to the fund industry is 
$96,522 (3 funds requiring a proxy x $32,174 per proxy).
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    \4\ In general, a fund adopts a rule 12b-1 plan before it begins 
operations. Therefore, the fund is not required to obtain the 
approval of its public shareholders because the fund's shares have 
not yet been offered to the public.
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    The estimate of average burden hours is made solely for the 
purposes of the Paperwork Reduction Act, and is not derived from a 
comprehensive or even a representative survey or study of the costs of 
Commission rules and forms.
    The collections of information required by Rule 12b-1 are necessary 
to obtain the benefits of the rule. Notices to the Commission will not 
be kept confidential. 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 control number.
    Written comments are invited on: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information will 
have practical utility; (b) the accuracy of the Commission's estimate 
of the burden of the collection of information; (c) ways to enhance the 
quality, utility, and clarity of the information collected; and (d) 
ways to minimize the burden 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 Thomas Bayer, Director/Chief 
Information Officer, Securities and Exchange Commission, c/o Remi 
Pavlik-

[[Page 36589]]

Simon, 6432 General Green Way, Alexandria, VA 22312; or send an email 
to: [email protected].

    Dated: June 14, 2012.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-14908 Filed 6-18-12; 8:45 am]
BILLING CODE 8011-01-P