Proposed Collection; Comment Request; Extension: Rule 12d1-1

Citation: "89 FR 54575"

Document Number: "SEC File No. 270-526, OMB Control No. 3235-0584"

Page Number: "54575"

"Notices"

Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549-2736

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 ("OMB") for extension and approval.

An investment company ("fund") is generally limited in the amount of securities the fund ("acquiring fund") can acquire from another fund ("acquired fund"). Section 12(d) of the Investment Company Act of 1940 (the "Investment Company Act" or "Act") /1/ provides that a registered fund (and companies it controls) cannot:

   FOOTNOTE 1 See 15 U.S.C. 80a. END FOOTNOTE

    * acquire more than three percent of another fund's securities;

    * invest more than five percent of its own assets in another fund; or

* invest more than ten percent of its own assets in other funds in the aggregate. /2/

   FOOTNOTE 2 See 15 U.S.C. 80a-12(d)(1)(A). If an acquiring fund is not registered, these limitations apply only with respect to the acquiring fund's acquisition of registered funds. END FOOTNOTE

In addition, a registered open-end fund, its principal underwriter, and any registered broker or dealer cannot sell that fund's shares to another fund if, as a result:

    * the acquiring fund (and any companies it controls) owns more than three percent of the acquired fund's stock; or

* all acquiring funds (and companies they control) in the aggregate own more than ten percent of the acquired fund's stock. /3/

   FOOTNOTE 3 See 15 U.S.C. 80a-12(d)(1)(B). END FOOTNOTE

Rule 12d1-1 under the Act provides an exemption from these limitations for "cash sweep" arrangements in which a fund invests all or a portion of its available cash in a money market fund rather than directly in short-term instruments. /4/ An acquiring fund relying on the exemption may not pay a sales load, distribution fee, or service fee on acquired fund shares, or if it does, the acquiring fund's investment adviser must waive a sufficient amount of its advisory fee to offset the cost of the loads or distribution fees. /5/ The acquired fund may be a fund in the same fund complex or in a different fund complex. In addition to providing an exemption from section 12(d)(1) of the Act, the rule provides exemptions from section 17(a) of the Act and rule 17d-1 thereunder, which restrict a fund's ability to enter into transactions and joint arrangements with affiliated persons. /6/ These provisions would otherwise prohibit an acquiring fund from investing in a money market fund in the same fund complex, /7/ and prohibit a fund that acquires five percent or more of the securities of a money market fund in another fund complex from making any additional investments in the money market fund. /8/

   FOOTNOTE 4 See 17 CFR 270.12d1-1. END FOOTNOTE

   FOOTNOTE 5 See rule 12d1-1(b)(1). END FOOTNOTE

   FOOTNOTE 6 See 15 U.S.C. 80a-17(a), 15 U.S.C. 80a-17(d); 17 CFR 270.17d-1. END FOOTNOTE

   FOOTNOTE 7 An affiliated person of a fund includes any person directly or indirectly controlling, controlled by, or under common control with such other person; see 15 U.S.C. 80a-2(a)(3) (definition of "affiliated person"); most funds today are organized by an investment adviser that advises or provides administrative services to other funds in the same complex; funds in a fund complex are generally under common control of an investment adviser or other person exercising a controlling influence over the management or policies of the funds; see 15 U.S.C. 80a-2(a)(9) (definition of "control"); not all advisers control funds they advise; the determination of whether a fund is under the control of its adviser, officers, or directors depends on all the relevant facts and circumstances; see Investment Company Mergers, Investment Company Act Release No. 25259 (Nov. 8, 2001) [66 FR 57602 (Nov. 15, 2001)], at n.11; to the extent that an acquiring fund in a fund complex is under common control with a money market fund in the same complex, the funds would rely on the rule's exemptions from section 17(a) and rule 17d-1. END FOOTNOTE

   FOOTNOTE 8 See 15 U.S.C. 80a-2(a)(3)(A), (B). END FOOTNOTE

The rule also permits a registered fund to rely on the exemption to invest in an unregistered money market fund that limits its investments to those in which a registered money market fund may invest under rule 2a-7 under the Act, and undertakes to comply with all the other provisions of rule 2a-7. /9/ In addition, the acquiring fund must reasonably believe that the unregistered money market fund (i) operates in compliance with rule 2a-7, (ii) complies with sections 17(a), (d), (e), 18, and 22(e) of the Act /10/ as if it were a registered open-end fund, (iii) has adopted procedures designed to ensure that it complies with these statutory provisions, (iv) maintains the records required by rules 31a-1(b)(1), 31a-1(b)(2)(ii), 31a-1(b)(2)(iv), and 31a-1(b)(9); /11/ and (v) preserves permanently, the first two years in an easily accessible place, all books and records required to be made under these rules.

   FOOTNOTE 9 See 17 CFR 270.2a-7. END FOOTNOTE

   FOOTNOTE 10 See 15 U.S.C. 80a-17(a), 15 U.S.C. 80a-17(d), 15 U.S.C. 80a-17(e), 15 U.S.C. 80a-18, 15 U.S.C. 80a-22(e). END FOOTNOTE

   FOOTNOTE 11 See 17 CFR 270.31a-1(b)(1), 17 CFR 270.31a-1(b)(2)(ii), 17 CFR 270.31a-1(b)(2)(iv), 17 CFR 270.31a-1(b)(9). END FOOTNOTE

Rule 2a-7 contains certain collection of information requirements. An unregistered money market fund that complies with rule 2a-7 would be subject to these collection of information requirements. In addition, the recordkeeping requirements under rule 31a-1 with which the acquiring fund reasonably believes the unregistered money market fund complies are collections of information for the unregistered money market fund. The adoption of procedures by unregistered money market funds to ensure that they comply with sections 17(a), (d), (e), 18, and 22(e) of the Act also constitute collections of information. By allowing funds to invest in registered and unregistered money market funds, rule 12d1-1 is intended to provide funds greater options for cash management. In order for a registered fund to rely on the exemption to invest in an unregistered money market fund, the unregistered money market fund must comply with certain collection of information requirements for registered money market funds. These requirements are intended to ensure that the unregistered money market fund has established procedures for collecting the information necessary to make adequate credit reviews of securities in its portfolio, as well as other recordkeeping requirements that will assist the acquiring fund in overseeing the unregistered money market fund (and Commission staff in its examination of the unregistered money market fund's adviser).

The estimated average burden hours in this collection of information are made solely for purposes of the Paperwork Reduction Act and are not derived from a quantitative, comprehensive or even representative survey or study of the burdens associated with Commission rules and forms. The number of unregistered money market funds that are affected by rule 12d1-1 is an estimate based on the number of private liquidity funds reported on Form PF as of the third calendar quarter 2023. /12/ The hour burden estimates for the condition that an unregistered money market fund comply with rule 2a-7 are based on the burden hours included in the Commission's 2022 PRA extension regarding rule 2a-7. /13/ We use the estimated burdens for registered money market funds to extrapolate the information collection burdens for unregistered money market funds under rule 12d1-1.

   FOOTNOTE 12 See the U.S. Securities and Exchange Commission's Division of Investment Management--Analytics Office Private Funds Statistics, Third Calendar Quarter (March 31, 2024) available at https://www.sec.gov/files/investment/2023q3-private-funds-statistics-20240331-accessible.pdf. END FOOTNOTE

   FOOTNOTE 13 See Securities and Exchange Commission, Request for OMB Approval of Extension for Approved Collection for Rule 2a-7 under the Investment Company Act of 1940 (OMB Control No. 3235-0268) (approved May 28, 2019August 3, 2022) (the "2022 rule 2a-7 PRA extension"), available at https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202109-3235-024; the 2022 rule 2a-7 PRA extension is the most recent rule 2a-7 submission that includes certain estimates with respect to aggregate annual hour and cost burdens for collections of information for registered money market funds. END FOOTNOTE

Based on the estimated burden of information collection for rule 2a-7 and Form PF filings, the estimated burden of information collection for rule 12d1-1 is set forth in the table below.

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Commission staff estimates that in addition to the internal costs described in the table above, unregistered money market funds also will incur external costs to preserve records, as required under rule 2a-7. These costs will vary significantly for individual funds, depending on the amount of assets under fund management and whether the fund preserves its records in a storage facility in hard copy or has developed and maintains a computer system to create and preserve compliance records. In the 2022 rule 2a-7 PRA extension, Commission staff estimated that the amount an individual money market fund may spend ranges from $100 per year to $300,000. We have no reason to believe the range is different for unregistered money market funds. Based on Form PF data as of the third calendar quarter 2023, liquidity funds have $361 billion in gross asset value. /26/ The Commission does not have specific information about the proportion of assets held in small, medium-sized, or large unregistered money market funds. Because liquidity funds are often used as cash management vehicles, the staff estimates that each private liquidity fund is a "large" fund (i.e., more than $1 billion in assets under management). Based on a cost of $0.0000009 per dollar of assets under management (for large funds), /27/ the staff estimates compliance with the record storage requirements of rule 2a-7 for these unregistered money market funds costs approximately $324,900 annually. /28/

   FOOTNOTE 14 The cost burdens shown in this chart for professional personnel are based on SIFMA's Management & Professional Earnings in the Securities Industry 2013, modified for 2024 by the Commission staff 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 and the cost burdens for clerical personnel are based on SIFMA's Office Salaries in the Securities Industry 2013, modified for 2024 by Commission staff to account for an 1800-hour work-year and inflation, and multiplied by 2.93 to account for bonuses, firm size, employee benefits and overhead; however, SIFMA data does not include a board of directors; for board time, Commission staff currently uses a cost of $5,672 per hour, which was last adjusted for inflation in December 2024; this estimate assumes an average of nine board members per year. END FOOTNOTE

   FOOTNOTE 15 The number of liquidity funds is based on the following: 68 x the percentage of liquidity funds that are at least partially in compliance with the risk-limiting provisions of rule 2a-7, or 100 - 52) = 48%; the result (rounded up to a whole number) is 33 liquidity funds (68 * 0.48 = 33); the number of liquidity funds and percentage of funds that are at least partially compliant with the risk-limiting provisions of rule 2a-7 is based on the U.S. Securities and Exchange Commission's Division of Investment Management--Analytics Office Private Funds Statistics, Third Calendar Quarter 2023 (March 31, 2024) available at https://www.sec.gov/files/investment/2023q3-private-funds-statistics-20240331-accessible.pdf. END FOOTNOTE

   FOOTNOTE 16 The number of new unregistered money market funds is estimated from 2021-2023 historical Form PF filings by liquidity fund advisers; see Securities and Exchange Commission's Division of Investment Management--Analytics Office Private Funds Statistics, Third Calendar Quarter 2023 (March 31, 2024) available at https://www.sec.gov/files/investment/2023q3-private-funds-statistics-20240331-accessible.pdf. END FOOTNOTE

   FOOTNOTE 17 We recognize that in many cases the adviser to an unregistered money market fund typically performs the function of the fund's board; Money Market Fund Reform; Amendments to Form PF Investment Company Act Rel. No. 31166 (Jul. 23, 2014), 79 FR 47735, 47809 (Aug. 14, 2014). END FOOTNOTE

   FOOTNOTE 18 For purposes of this PRA extension, we assumed that on average 25% (33 funds x .25 = approximately 8 funds) of liquidity funds would review and update their procedures on annual basis. END FOOTNOTE

   FOOTNOTE 19 This number has been derived from the number of advisers to liquidity funds; see U.S Securities and Exchange Commission, Division of Investment Management, Analytics Office, Private Fund Statistics, Third Quarter 2023 (March 31, 2024), Table 2. END FOOTNOTE

   FOOTNOTE 20 See supra note 25. END FOOTNOTE

   FOOTNOTE 21 There are no liquidity funds of this type; liquidity funds only are offered to qualified investors. END FOOTNOTE

   FOOTNOTE 22 See supra note 25. END FOOTNOTE

   FOOTNOTE 23 Id. END FOOTNOTE

   FOOTNOTE 24 Id. END FOOTNOTE

   FOOTNOTE 25 In the context of registered money market funds, we have previously estimated an average of approximately 2 occurrences for 20 funds each year; however, this number may vary significantly in any particular year; for purposes of this PRA extension, we assumed there would be same proportion of unregistered money market funds experiencing events of default or solvency each year. (20/320 registered money market funds = approximately 5%. 5% x33 liquidity funds = approximately 2 liquidity funds). END FOOTNOTE

   FOOTNOTE 26 See U.S Securities and Exchange Commission, Division of Investment Management, Analytics Office, Private Fund Statistics, Fourth Quarter 2019 (Oct. 2, 2020), Table 3. END FOOTNOTE

   FOOTNOTE 27 The recordkeeping cost estimates are $0.0051295 per dollar of assets under management for small funds, and $0.0005041 per dollar of assets under management for medium-sized funds; the cost estimates are the same as those used in the most recently approved rule 2a-7 submission. END FOOTNOTE

   FOOTNOTE 28 This estimate is based on the following calculation: ($294 billion x$0.0000009) = $264,600 for large funds. END FOOTNOTE

Consistent with estimates made in the rule 2a-7 submission, Commission staff estimates that unregistered money market funds also incur capital costs to create computer programs for maintaining and preserving compliance records for rule 2a-7 of $0.0000132 per dollar of assets under management. Based on the assets under management figures described above, staff estimates annual capital costs for all unregistered money market funds of $4.76 million. /29/

   FOOTNOTE 29 This estimate is based on the following calculation: ($294 billion x 0.0000132) = $3.88 million. END FOOTNOTE

Commission staff further estimates that, even absent the requirements of rule 2a-7, money market funds would spend at least half of the amounts described above for record preservation ($162,450) and for capital costs ($2.38 million). Commission staff concludes that the aggregate annual external costs of compliance with the rule are $162,450 for record preservation and $2.38 million for capital costs, or a total of $2.54 million.

The collections of information required for unregistered money market funds by rule 12d1-1 are necessary in order for acquiring funds to be able to obtain the benefits described above. 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 shall 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 by August 30, 2024.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.

Please direct your written comments to: David Bottom, Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE Washington, DC 20549 or send an email to: [email protected].

   Dated: June 26, 2024.

Sherry R. Haywood,

Assistant Secretary.

[FR Doc. 2024-14441 Filed 6-28-24; 8:45 am]

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