[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Notices]
[Pages 41262-41263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14750]
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SECURITIES AND EXCHANGE COMMISSION
[SEC File No. 270-505, OMB Control No. 3235-0562]
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 17d-1
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 (``Commission'') has submitted to the Office of Management
and Budget (``OMB'') a request for extension of the previously approved
collection of information discussed below.
Section 17(d) (15 U.S.C. 80a-17(d)) of the Investment Company Act
of 1940 (15 U.S.C. 80a et seq.) (the ``Act'') prohibits first- and
second-tier affiliates of a fund, the fund's principal underwriters,
and affiliated persons of the fund's principal underwriters, acting as
principal, to effect any transaction in which the fund or a company
controlled by the fund is a joint or a joint and several participant in
contravention of the Commission's rules. Rule 17d-1 (17 CFR 270.17d-1)
prohibits an affiliated person of or principal underwriter for any fund
(a ``first-tier affiliate''), or any affiliated person of such person
or underwriter (a ``second-tier affiliate''), acting as principal, from
participating in or effecting any transaction in connection with a
joint enterprise or other joint arrangement in which the fund is a
participant, unless prior to entering into the enterprise or
arrangement ``an application regarding [the transaction] has been filed
with the Commission and has been granted by an order.'' In reviewing
the proposed affiliated transaction, the rule provides that the
Commission will consider whether the proposal is (i) consistent with
the provisions, policies, and purposes of the Act, and (ii) on a basis
different from or less advantageous than that of other participants in
determining whether to grant an exemptive application for a proposed
joint enterprise, joint arrangement, or profit-sharing plan.
Rule 17d-1 also contains a number of exceptions to the requirement
that a fund must obtain Commission approval prior to entering into
joint transactions or arrangements with affiliates. For example, funds
do not have to obtain Commission approval for certain employee
compensation plans, certain tax-deferred employee benefit plans,
certain transactions involving small business investment companies, the
receipt of securities or cash by certain affiliates pursuant to a plan
of reorganization, certain arrangements regarding liability insurance
policies and transactions with ``portfolio affiliates'' (companies that
are affiliated with the fund solely as a result of the fund (or an
affiliated fund) controlling them or owning more than five percent of
their voting securities) so long as certain other affiliated persons of
the fund (e.g., the fund's adviser, persons controlling the fund, and
persons under common control with the fund) are not parties to the
transaction and do not have a ``financial interest'' in a party to the
transaction. The rule excludes from the definition of ``financial
interest'' any interest that the fund's board of directors (including a
majority of the directors who are not interested persons of the fund)
finds to be not material, as long as the board records the basis for
its finding in their meeting minutes.
Thus, the rule contains two filing and recordkeeping requirements
that constitute collections of information. First, rule 17d-1 requires
funds that wish to engage in a joint transaction or arrangement with
affiliates to meet the procedural requirements for obtaining exemptive
relief from the rule's prohibition on joint transactions or
arrangements involving first- or second-tier affiliates. Second, rule
17d-1 permits a portfolio affiliate to enter into a joint transaction
or arrangement with the fund if a prohibited participant has a
financial interest that the fund's board determines is not material and
records the basis for this finding in their meeting minutes. These
requirements of rule 17d-1 are designed to prevent fund insiders from
managing funds for their own benefit, rather than for the benefit of
the funds' shareholders.
Based on an analysis of past filings, Commission staff estimates
that 23 funds file applications under section 17(d) and rule 17d-1 per
year. The staff understands that funds that file an application
generally obtain assistance from outside counsel to prepare the
application. The cost burden of using outside counsel is discussed
below. The Commission staff estimates that each applicant will spend an
average of 154 hours to comply with the Commission's applications
process. The Commission staff therefore estimates the annual burden
hours per year for all funds under rule 17d-1's application process to
be 3,542 hours at a cost of $1,528,120.\1\ The Commission, therefore,
requests authorization to increase the inventory of total burden hours
per year for all funds under rule 17d-1 from the current authorized
burden of 2,772 hours to 3,542 hours. The increase is due to an
increase in the number of funds that filed applications for exemptions
under rule 17d-1.
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\1\ The Commission staff estimates that a senior executive, such
as the fund's chief compliance officer, will spend an average of 62
hours and a mid-level compliance attorney will spend an average of
92 hours to comply with this collection of information: 62 hours +
92 hours = 154 hours. 23 funds x 154 burden hours = 3,542 burden
hours. The Commission staff estimate that the chief compliance
officer is paid $530 per hour and the compliance attorney is paid
$365 per hour. ($530 per hour x 62 hours) + ($365 per hour x 92
hours) = $66,440 per fund. $66,440 x 23 funds = $1,528,120. The $530
and $365 per hour figures are based on salary information compiled
by SIFMA's Management & Professional Earnings in the Securities
Industry, 2013. The Commission staff has modified SIFMA's
information to account for an 1800-hour work year and inflation, and
multiplied by 5.35 to account for bonuses, firm size, employee
benefits, and overhead.
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As noted above, the Commission staff understands that funds that
file an application under rule 17d-1 generally use outside counsel to
assist in preparing the application. The staff estimates that, on
average, funds spend
[[Page 41263]]
an additional $93,131 for outside legal services in connection with
seeking Commission approval of affiliated joint transactions. Thus, the
staff estimates that the total annual cost burden imposed by the
exemptive application requirements of rule 17d-1 is $2,142,013.\2\
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\2\ The estimate is based on the following calculation: $93,131
x 23 funds = $2,142,013.
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We estimate that funds currently do not rely on the exemption from
the term ``financial interest'' with respect to any interest that the
fund's board of directors (including a majority of the directors who
are not interested persons of the fund) finds to be not material.
Accordingly, we estimate that annually there will be no transactions
under rule 17d-1 that will result in this aspect of the collection of
information.
Based on these calculations, the total annual hour burden is
estimated to be 3,542 hours and the total annual cost burden is
estimated to be $2,142,013.
The estimate of average burden hours is 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 the
costs of Commission rules. Complying with these collections of
information requirement is necessary to obtain the benefit of relying
on rule 17d-1. Responses 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.
The public may view background documentation for this information
collection at the following website: www.reginfo.gov. Find this
particular information collection by selecting ``Currently under 30-day
Review--Open for Public Comments'' or by using the search function.
Written comments and recommendations for the proposed information
collection should be sent within 30 days of publication of this notice
to (i) www.reginfo.gov/public/do/PRAMain and (ii) David Bottom,
Director/Chief Information Officer, Securities and Exchange Commission,
c/o Cynthia Roscoe, 100 F Street NE, Washington, DC 20549, or by
sending an email to: [email protected].
Dated: July 2, 2020.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-14750 Filed 7-8-20; 8:45 am]
BILLING CODE 8011-01-P