[Federal Register Volume 84, Number 77 (Monday, April 22, 2019)]
[Notices]
[Pages 16746-16748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08040]
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SECURITIES AND EXCHANGE COMMISSION
Submission for OMB Review; Comment Request
Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736.
Extension:
Rule 17j-1, SEC File No. 270-239, OMB Control No. 3235-0224.
Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange
Commission (the ``Commission'') has submitted to the Office of
Management and Budget a request for extension of the previously
approved collection of information discussed below.
Conflicts of interest between investment company personnel (such as
portfolio managers) and their funds can arise when these persons buy
and sell securities for their own accounts (``personal investment
activities''). These conflicts arise because fund personnel have the
opportunity to profit from information about fund transactions, often
to the detriment of fund investors. Beginning in the early 1960s,
Congress and the Securities and Exchange Commission (``Commission'')
sought to devise a regulatory scheme to effectively address these
potential conflicts. These efforts culminated in the addition of
section 17(j) to the Investment Company Act of 1940 (the ``Investment
Company Act'') (15 U.S.C. 80a-17(j)) in 1970 and the adoption by the
Commission of rule 17j-1 (17 CFR 270.17j-1) in 1980.\1\ The Commission
proposed amendments to rule 17j-1 in 1995 in response to
recommendations made in the first detailed study of fund policies
concerning personal investment activities by the Commission's Division
of Investment Management since rule 17j-1 was adopted. Amendments to
rule 17j-1, which were adopted in 1999, enhanced fund oversight of
personal investment activities and the board's role in carrying out
that oversight.\2\ Additional amendments to rule 17j-1 were made in
2004, conforming rule 17j-1 to rule 204A-1 under the Investment
Advisers Act of 1940 (15 U.S.C. 80b), avoiding duplicative reporting,
and modifying certain definitions and time restrictions.\3\ Section
17(j) makes it unlawful for persons affiliated with a registered
investment company (``fund'') or with the fund's investment adviser or
principal underwriter (each a ``17j-1 organization''), in connection
with the purchase or sale of securities held or to be acquired by the
investment company, to engage in any fraudulent, deceptive, or
manipulative act or practice in
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contravention of the Commission's rules and regulations. Section 17(j)
also authorizes the Commission to promulgate rules requiring 17j-1
organizations to adopt codes of ethics.
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\1\ Prevention of Certain Unlawful Activities with Respect to
Registered Investment Companies, Investment Company Act Release No.
11421 (Oct. 31, 1980) (45 FR 73915 (Nov. 7, 1980)).
\2\ Personal Investment Activities of Investment Company
Personnel, Investment Company Act Release No. 23958 (Aug. 20, 1999)
(64 FR 46821 (Aug. 27, 1999)).
\3\ Investment Adviser Codes of Ethics, Investment Advisers Act
Release No. 2256 (Jul. 2, 2004) (69 FR 41696 (Jul. 9, 2004)).
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In order to implement section 17(j), rule 17j-1 imposes certain
requirements on 17j-1 organizations and ``Access Persons'' \4\ of those
organizations. The rule prohibits fraudulent, deceptive or manipulative
acts by persons affiliated with a 17j-1 organization in connection with
their personal securities transactions in securities held or to be
acquired by the fund. The rule requires each 17j-1 organization, unless
it is a money market fund or a fund that does not invest in Covered
Securities,\5\ to: (i) Adopt a written codes of ethics, (ii) submit the
code and any material changes to the code, along with a certification
that it has adopted procedures reasonably necessary to prevent Access
Persons from violating the code of ethics, to the fund board for
approval, (iii) use reasonable diligence and institute procedures
reasonably necessary to prevent violations of the code, (iv) submit a
written report to the fund describing any issues arising under the code
and procedures and certifying that the 17j-1 entity has adopted
procedures reasonably necessary to prevent Access Persons form
violating the code, (v) identify Access Persons and notify them of
their reporting obligations, and (vi) maintain and make available to
the Commission for review certain records related to the code of ethics
and transaction reporting by Access Persons.
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\4\ Rule 17j-1(a)(1) defines an ``access person'' as ``Any
Advisory Person of a Fund or of a Fund's investment adviser. If an
investment adviser's primary business is advising Funds or other
advisory clients, all of the investment adviser's directors,
officers, and general partners are presumed to be Access Persons of
any Fund advised by the investment adviser. All of a Fund's
directors, officers, and general partners are presumed to be Access
Persons of the Fund.'' The definition of Access Person also includes
``Any director, officer or general partner of a principal
underwriter who, in the ordinary course of business, makes,
participates in or obtains information regarding, the purchase or
sale of Covered Securities by the Fund for which the principal
underwriter acts, or whose functions or duties in the ordinary
course of business relate to the making of any recommendation to the
Fund regarding the purchase or sale of Covered Securities.'' Rule
17j-1(a)(1).
\5\ A ``Covered Security'' is any security that falls within the
definition in section 2(a)(36) of the Act, except for direct
obligations of the U.S. Government, bankers' acceptances, bank
certificates of deposit, commercial paper and high quality short-
term debt instruments, including repurchase agreements, and shares
issued by open-end funds. Rule 17j-1(a)(4).
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The rule requires each Access Person of a fund (other than a money
market fund or a fund that does not invest in Covered Securities) and
of an investment adviser or principal underwriter of the fund, who is
not subject to an exception,\6\ to file: (i) Within 10 days of becoming
an Access Person, a dated initial holdings report that sets forth
certain information with respect to the Access Person's securities and
accounts; (ii) dated quarterly transaction reports within 30 days of
the end of each calendar quarter providing certain information with
respect to any securities transactions during the quarter and any
account established by the Access Person in which any securities were
held during the quarter; and (iii) dated annual holding reports
providing information with respect to each Covered Security the Access
Person beneficially owns and accounts in which securities are held for
his or her benefit. In addition, rule 17j-1 requires investment
personnel of a fund or its investment adviser, before acquiring
beneficial ownership in securities through an initial public offering
(IPO) or in a private placement, to obtain approval from the fund or
the fund's investment adviser.
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\6\ Rule 17j-1(d)(2) contains the following exceptions: (i) An
Access Person need not file a report for transactions effected for,
and securities held in, any account over which the Access Person
does not have control; (ii) an independent director of the fund, who
would otherwise be required to report solely by reason of being a
fund director and who does not have information with respect to the
fund's transactions in a particular security, does not have to file
an initial holdings report or a quarterly transaction report; (iii)
an Access Person of a principal underwriter of the fund does not
have to file reports if the principal underwriter is not affiliated
with the fund (unless the fund is a unit investment trust) or any
investment adviser of the fund and the principal underwriter of the
fund does not have any officer, director, or general partner who
serves in one of those capacities for the fund or any investment
adviser of the fund; (iv) an Access Person to an investment adviser
need not make quarterly reports if the report would duplicate
information provided under the reporting provisions of the
Investment Adviser's Act of 1940; (v) an Access Person need not make
quarterly transaction reports if the information provided in the
report would duplicate information received by the 17j-1
organization in the form of broker trade confirmations or account
statements or information otherwise in the records of the 17j-1
organization; and (vi) an Access Person need not make quarterly
transaction reports with respect to transactions effected pursuant
to an Automatic Investment Plan.
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The requirements that the management of a rule 17j-1 organization
provide the fund's board with new and amended codes of ethics and an
annual issues and certification report are intended to enhance board
oversight of personal investment policies applicable to the fund and
the personal investment activities of Access Persons. The requirements
that Access Persons provide initial holdings reports, quarterly
transaction reports, and annual holdings reports and request approval
for purchases of securities through IPOs and private placements are
intended to help fund compliance personnel and the Commission's
examinations staff monitor potential conflicts of interest and detect
potentially abusive activities. The requirement that each rule 17j-1
organization maintain certain records is intended to assist the
organization and the Commission's examinations staff in determining if
there have been violations of rule 17j-1.
We estimate that annually there are approximately 75,316
respondents under rule 17j-1, of which 5,316 are rule 17j-1
organizations and 70,000 are Access Persons. In the aggregate, these
respondents make approximately 107,038 responses annually. We estimate
that the total annual burden of complying with the information
collection requirements in rule 17j-1 is approximately 368,094 hours.
This hour burden represents time spent by Access Persons that must file
initial and annual holdings reports and quarterly transaction reports,
investment personnel that must obtain approval before acquiring
beneficial ownership in any securities through an IPO or private
placement, and the responsibilities of Rule 17j-1 organizations arising
from information collection requirements under rule 17j-1. These
include notifying Access Persons of their reporting obligations,
preparing an annual rule 17j-1 report and certification for the board,
documenting their approval or rejection of IPO and private placement
requests, maintaining annual rule 17j-1 records, maintaining electronic
reporting and recordkeeping systems, amending their codes of ethics as
necessary, and, for new fund complexes, adopting a code of ethics.
We estimate that there is an annual cost burden of approximately
$5,000 per fund complex, for a total of $3,915,000, associated with
complying with the information collection requirements in rule 17j-1.
This represents the costs of purchasing and maintaining computers and
software to assist funds in carrying out rule 17j-1 recordkeeping.
These burden hour and cost estimates are based upon the Commission
staff's experience and discussions with the fund industry. The
estimates of average burden hours and costs 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.
Compliance with the collection of information requirements of the
rule is mandatory and is necessary to comply with the requirements of
the rule in
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general. 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. Rule 17j-1 requires that records be
maintained for at least five years in an easily accessible place.\7\
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\7\ If information collected pursuant to the rule is reviewed by
the Commission's examination staff, it will be accorded the same
level of confidentiality accorded to other responses provided to the
Commission in the context of its examination and oversight program.
See section 31(c) of the Investment Company Act (15 U.S.C. 80a-
30(c)).
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The public may view the background documentation for this
information collection at the following website, www.reginfo.gov.
Comments should be directed to: (i) Desk Officer for the Securities and
Exchange Commission, Office of Information and Regulatory Affairs,
Office of Management and Budget, Room 10102, New Executive Office
Building, Washington, DC 20503, or by sending an email to:
[email protected]; and (ii) Charles Riddle, Acting Director/
Chief Information Officer, Securities and Exchange Commission, c/o
Candace Kenner, 100 F Street NE, Washington, DC 20549 or send an email
to: [email protected]. Comments must be submitted to OMB within 30
days of this notice.
Dated: April 17, 2019.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-08040 Filed 4-19-19; 8:45 am]
BILLING CODE 8011-01-P